A revision petition to set aside an ex parte maintenance order is not maintainable in view of the proviso to sub-section (2) of Section 126 Cr.P.C., which provides a specific remedy for setting aside such orders.

Heard the learned counsel for the petitioner, Mr.B. Kalifa. The petitioner impugns the judgment and order dated 10 3.86 of the Additional Sessions Judge, Kamrup, Gauhati rejecting his revision petition against the order dated 29.5.85 passed by the Magistrate, First Class, Gauhati in C. M. No 24(K-3) of 1985 under Section 125 of the Code of Criminal Procedure as not maintainable in view of the provision in the proviso to sub sect­ion (2) of Section 126 Cr P.C.

2. The petitioner is a Signaller under the Indian Army in 25 Infantry Divisional Signal Regiment. The first party-opposite party, who is his wife, applied for maintenance for herself and "her child. Several notices were issued to the petitioner. One such notice issued in his home address was returned as “refused to release''. The learned Magistrate after examining the Postal Peon accepted the service of the notice as valid and thereafter allowed the petition for maintenance exparte on 29.5.85 granting Rs. 300/- per month to the first party-opposite party and Rs. 100/-to her son, with effect from the date of filing the application. From that order the petitioner moved a revision petition before the Additional Sessions Judge, Gauhati who rejected the petition. Hence this petition.

3. Mr. B. Kalita, the learned counsel for the petitioner, su­bmits that in rejecting the revision petition the learned Judge did not exercise jurisdiction vested in him according to law; inasmuch as over and above the remedy as provided in the pro­viso to sub-section (2) of Section 126 Cr. P. C., the petitioner had the right of revision and he hat been denied that right by holding that the revision petition was not maintainable.

4. Under sub-section (3) of Section 397 Cr.P.C. if an app­lication under Sec. 397 has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Considered as a second revision petition this application will be barred under that provision as the Sessions Judge was also moved by the petitioner. Mr. Kalita, however, submits that this is an application under Section 482 Cr.P.C. and/or under Article 227 of the Constitution of India. It is true that under very exceptional circumstances when the petitioner has moved a revision petition before the Sessions Judge he may come to the High Court under Sec. 482 and if the Court is satisfied that non-interference will result in great miscarriage of justice the High Court may interfere in exercise of its inherent power under Section 482 Cr.P.C. However, in the background of the facts and circumstances of the case, it is not considered to be a fit case where such interference would be justified except ex jebito Justified.

5. The question involved in this petition is. whether a revi­sion petition to set aside an exparte maintenance order, is main­tainable or not. To my mind in the instant case ends of justice will be met if the petitioner is left to move an application for setting aside the ex parte maintenance order before the Magis­trate under the proviso to sub-section (2) of S. 126 Cr. P. C., which says :

"(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons cases :

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper."

6. The learned Judge

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