Order.-This petition is directed against the order dated 4th December, 1976 passed by the Judicial Magistrate, First Class, Tarikere in Criminal Miscellaneous No. 43 of 1976 dismissing the application filed by the petitioner under section 126(2) (proviso) of the Code of Criminal Procedure, 1973.

2. The respondents field an application under section 125 of the Code of Criminal Procedure in Criminal Miscellaneous No. 73 of 1975 praying for monthly allowance at Rs. 250 for respondent-1 and at Rs. 80 for respondent-2. On 2nd March, 1976, the Magistrate found that the petitioner was absent, his Counsel was absent and placed the petitioner ex parte. It is evident that this order has been made as per the first part of the proviso to section 126(2) of the Code of Criminal Procedure. Thereafter, the matter was adjourned to 23rd March, 1976, 2nd April, 1976 and then to 3rd April, 1976: On 3rd April, 1976, the Magistrate passed an order directing the petitioner to pay a sum of Rs. 330 per month towards maintenance of respondents 1 and 2. He calculated the same at Rs. 250 per month for respondent-1 and at Rs. 80 per month for respondent-2. According to the petitioner, he came to know of this order on 24th September, 1976 and hence he filed an application under the latter part of the proviso to section 126(2) of the Code of Criminal Procedure in Criminal Miscellaneous No. 43 of 1976 praying that the ex parte order passed on 3rd April, 1976 be set aside. The learned Magistrate has rejected the application on the ground that it was belated.

3. The learned. Magistrate has gone on to decide the question whether an application filed under the latter part of the proviso to section 126(2) of the Code of Criminal Procedure, was required to be made within three months from the date of the ex parte order or within three months from the date of knowledge of the husband in regard to to that order.

4. In my opinion, this question need not be gone into in view of the law laid down by this Court in The State v. Bhimrao and another1. In that case this Court was dealing with the proviso to section 488(6) of the Code of Criminal Procedure, 1898. It may be stated that the said proviso is same as the proviso to section 126(2) of the Code of Criminal Procedure, 1973. The Court in that case held that the words ‘order so made’ in the second part of the proviso to section 488(6) of the Code of Criminal Procedure, 1898, necessarily imply an order passed in conformity with the first part of the proviso and if the order in question is not in conformity with the first part of the proviso, the second part of the proviso prescribing a period of three months from the date of order so made would not come into operation. It further held that it was incumbent on the Magistrate while making an order under first part of the proviso to be satisfied that the husband was wilfully avoiding service or that he was wilfully neglecting to attend the Court and such satisfaction was subjective satisfaction of the Magistrate. The same is the ratio laid down by the Calcutta High Court in Hemendra Nath Choudhury v. Smt. Archana Chowdhry2,

5. It has been already pointed out that the proviso to section 488(6) of the Code of Criminal Procedure, 1898, is the same as the proviso to section 126(2) of the Code of Criminal Procedure, 1973. A reading of this proviso shows that an order made by the Magistrate in compliance with the provisions in the first part of the proviso could be set aside by the Magistrate if good cause is shown to him by filing an application within 3 months from the date of the order. It is hence clear that the Magistrate has power to set aside only such order which is passed in accordance with the first part of the proviso. If an order is passed by a Magistrate not in accordance with the first part of the proviso to section 126(2) of the Code of Criminal Procedure, the Magistrate has no power to set aside that order because such an order does not fall within the ambit of secti

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