The main legal point established is that the Magistrate is competent to restore an application dismissed for want of prosecution on sufficient cause shown by the applicant, as per the provisions of Section 488 Cr.P.C.

1. Challenge is to order dated 27th November 2010 of learned Special Mobile Magistrate Passenge" Tax and Electricity, in application under Section 488 Cr.P.C. titled Adil Ahmad Shagoo v. Mohamad Amin Shagoo whereby learned Magistrate has dismissed the application for non-prosecution.

2. The petitioner's case is that the order is bad in law and liable to be set aside. The petitioner has set out in detail the hardship the petitioner is exposed to because of the impugned order. It is pleaded that the respondent, unmindful of the direction of Revisional Court in criminal petition No. 50/2009 dated 15.05.2010 has failed and avoided to pay interim maintenance to the petitioner who is a student and has no source to fall back upon and not in a position to continue his study.

3. I have heard learned counsel for the petitioner.

4. The proceedings under Section 488 Cr.P.C, though not amounting to a civil suit, are essentially civil in nature. The right agitated in application under Section 488 Cr.P.C. is inherently a right arising out of the status of the person called upon to pay maintenance visa-vis the persons to who maintenance is paid. The right of wife, children and parents to get maintenance, under Section 488 Cr.P.C. is civil in nature and its enforcement brought within the ambit of Criminal Procedure Code to inculcate a sense of urgency in determination of the right. Section 488 Cr.P.C. lays clown efficient and hassle free procedure to be followed by the Magistrate while dealing with an application for maintenance and embodies a stringent procedure for recovery of the maintenance allowance. The object is that a child, wife or parents having no source of income are not pushed to beggary, deprivation or want and the person under an obligation to maintain such child, wife and parents and possessed of sufficient means is asked to pay maintenance allowance without delay.

5. Though Section 488 Cr.P.C. does not expressly empower the Magistrate to restore and rehear an application under Section 488 Cr.P.C. dismissed in default yet. Having regard to the nature of proceedings and objects ought to be achieved the Magistrate is competent to restore the application dismissed for want of prose­cution, on sufficient cause shown by the applicant that prevented the applicant to appear before the Magistrate on the date the application was dismissed. It is pertinent to point out that the proceedings in Chapter IX do not terminate with an order allowing the application and directing the respondent to pay maintenance allowance to the applicant. The Magistrate does not become a functus-officio once the application is disposed of with an order of maintenance made. The Magistrate still continues to have jurisdiction to take notice of subsequent developments and alter or modify his order if there are changes in the circumstances, warranting such alternation/modification. If Magistrate is held to have power to alter or modify the maintenance order, in view of developments subsequent to order, the Magistrate cannot be said to lack power to restore an application dismissed for default in appearance. The scheme of Chapter IX thus reinforces the view that the application dismissed in-default of appearance of the applicant can be restored to its original number with all interim orders/directions, in case the applicant is able to convince the Magistrate that he or she was prevented by sufficient cause from appearing before the Magistrate on the date the application was dismissed.

6. Viewed thus the Criminal Revision petition is disposed of with a direction to the learned Special Mobile Magistrate Passenger Tax and Electricity to entertain application for restoration of the application under Section 488 dismissed in default of appearance of petitioner on 27.11.2010, of course if the petitioner approaches the Magistrate with such application and thereafter to dispose it of on merits having regard to the cause shown by the petitioner preventing him from appearing befo

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