The default in maintaining the wife and children is not regarded as an offence as defined in section 4 (o) of the Code of Criminal Procedure, and therefore, there was no acquittal of the applicant. The second application for maintenance was maintainable.

V R Sen—The applicant A. W. Khan is the husband of Zaitun Bi and father of Mst. Nur Jahan, aged 3 years. According to the applicant an application under section 488, Criminal Procedure Code, was made by Mst. Zaitun Bi for maintenance of herself and her child (Miscellaneous Criminal Case No. 30 of 1947). After some evidence had been recorded, the application was dismissed for default of appearance of Zaitun Bi on the 8th January 1949. She filed a second application under section 488 on practically the same facts (Miscellaneous Criminal Case no. 216 of 1948).

2. The applicant raised an objection to the maintainability of the application. The objection was overruled by Shri N. P. Bharadwaj, Magistrate, First Class, Raipur, by his order dated the 18th February 1949. In his view the application was not barred as the previous application had been dismissed for default and there was no adjudication on merits. The applicant filed Criminal Revision no. 120 of 1949 in the Court of the Sessions Judge, Raipur, who upheld the order of the learned Magistrate. He repelled the contention that the dismissal of the proceedings operated as an acquittal. The view taken by both Courts is challenged before me in this revision.

3. The contention of Shri R. K. Verma, counsel for the applicant, is that the procedure laid down for summons cases is applicable to the hearing of applications under section 488, Criminal Procedure Code.

4. Chapter XIX of the Code of Criminal Procedure governs such an application and the result of non-appearance of the complainant on that date, i.e., the 8th January 1949, was the acquittal of the applicant. Section 403 of the Code of Criminal Procedure bars a second application on the same facts. I do not accept the contention of the applicant.

5. There is no acquittal in proceedings under section 488 of the Code. There should be a trial of an offence before there can be an acquittal or a conviction. Offence is defined in section 4 (o) of the Code of Criminal Procedure as follows :

'offence' means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act.

6. Neglect to maintain one's wife and children is not an offence within the meaning of section 4 (o) of the Code. A finding of a magistrate ordering a person to pay a certain amount of money for the maintenance of his wife and children does not amount to a conviction for an offence. The object of the proceedings under section 488 is to secure maintenance for a woman and her children speedily and to secure that end the machinery is provided in Chapter XXXVI ibid.

7. Even though in recording evidence procedure for summons cases may be adopted that fact alone will not convert the proceedings under section 488 into summons cases. In a criminal case a trial cannot proceed in the absence of an accused unless his absence or attendance has been exempted for sufficient reason. In proceedings under section 488 the Magistrate is competent to hear the case ex parte and allow or disallow maintenance. It will thus be clear that the default in maintaining the wife and children is not regarded as an offence as defined in section 4 (o) of the Code of Criminal Procedure. In this view there was no acquittal of the applicant on the 8th January 1949 and section 403 has clearly no application. Second application was therefore maintainable and the view taken by the two Courts was correct. I am supported in my view by the decisions in Mehr Khan v. Bakht Bhari,1928 29 CrLJ 1002, Monmohan v. Surabala Dasi, Maung Hla Mating v. Ma On Kin,1927 ILR(Rang) 697. and Ma Saw May v. U. Aung Thein,1935 AIR(Rang) 277. In Monmohan v. Surabala Dasi, 1920 AIR(Cal) 38. it was held that where an application for maintenance under section 488, is dismissed for default without any adjudication being made on the merits, it is open to the complainant to make a fresh application under that se