Krishna Saran Shrivastav, J.
1. Our learned Sister Ms. S.V. Maruthi, J., has referred this case for reconsideration by a Larger Bench, the law laid down in the case of Golla Ramana Rao v. Golla Chandramma & one Anr., Criminal Revision Case No. 390/1977, decided on 17.2.1978 that, the application of the parents for maintenance under Section 125 of the Code of Criminal Procedure has to be decided by the Magistrate within whose jurisdiction their children reside.
2. The facts giving rise to this revision, in brief, are that the petitioners, who are the parents of the 1st respondent, had filed an application for maintenance under Section 125 of the Code of Criminal Procedure, 1973 against the 1st respondent, who was working in TISCO at Tatanagar at the relevant time, in M.C. No. 2/1990 on the file of the Judicial Magistrate of I Class, Ichapuram. The Magistrate allowed the application on merits on 27.1.1994 granting maintenance to them
3. The respondents carried the matter to the High Court in Criminal R.C. No. 77/1994 questioning the territorial jurisdiction of the Magistrate. A learned Single Judge of this Court set aside the order granting maintenance and remanded the case to the Magistrate with a direction to frame an issue regarding the territorial jurisdiction of the Court as also with regard to the income of the petitioners from the joint Hindu family property. The Magistrate after again recording the evidence, found that the petitioners had no income from the joint Hindu family property and the 1st respondent was not the resident of Ichapuram and, therefore, it has got no territorial jurisdiction to try the case and ordered the application to be returned to the petitioners to be presented before the proper Court.
4. Feeling aggrieved by the impugned order, the petitioners have preferred revision in Crl. R.C. No. 589/1995. In the opinion of the learned Single Judge, who heard the revision petition, the view of the Division Bench in the case of Golla Ramana Rao (supra) that the Court within whose jurisdiction the son resides is competent to decide the dispute, requires re-consideration, because, the provisions of Section 177 of the Code of Criminal Procedure were not taken into consideration in that case, though it has a bearing on the question of jurisdiction to grant maintenance.
5. It is too well settled that the proceedings under Section 125 of the Code of Criminal Procedure are in the nature of civil proceedings, because, only provision for maintenance has been made to be provided to helpless wives, children and parents, but the persons, on whom a duty has been cast to pay maintenance allowance, are not accused persons and their act of negligence or refusal to maintain does not amount to an offence while Section 177 of the Code of Criminal Procedure governs all criminal trials in relation to offences committed by accused persons and, therefore, the provisions of Section 177 of the Code of Criminal Procedure, in our view have no bearing on the question of jurisdiction of the Court to grant maintenance.
6. Relying on the case of Mst Jagir Kaur & Anr. v. Jaswant Singh, : [1964]2SCR73 , a Division Bench of this Court, in the case of Golla Ramana Rao (supra), has held that the words 'where he is' occurring in Section 126(l)(a) of the Code of Criminal Procedure refer only to the husband or the person against whom proceedings under Section 125 of the Code of Criminal Procedure are to be taken and the meaning of the words 'where he resides' should be considered from the point of view of the purpose of the statute which would be better served if the word resides' is understood to include temporary residence. The test on the question of residence is whether a person has an intention to stay at any place for a considerable period. A casual or a flying visit cannot come within the scope of the word 'residence'.
In the case of Mst. Jagir Kaur & Anr. v. Jaswant Singh (supra), it has been held that the word 'resides' in Sub-section (l)(b) of Section 126 of the Code of Criminal Procedure means not only domicile in the technical sense of the word but also something more than a flying visit to or a casual stay in a particular place contemplating animus manendi or an intention to stay for a period, the length of the period being dependent upon circumstances of each case. A person 'resides' in a place if he through choice makes it his abode permanently or temporarily where he has chosen a particular place to be his abode. Whether he has chosen to make a particular place his abode depends upon the facts of each case.
7. We have gone through the entire judgment rendered by the Division Bench of this Court in the case of Golla Ramana Rao (supra) and for the foregoing reasons we hold that no other interpretation can be given to the word 'resides' occurring in Sub-section (1) of Section 126 of the Code of Criminal Procedure and it depends on the facts of each case whether the concerned person has residence permanent or temporary at a place where the application for maintenance is to be tried by the Magistrate having jurisdiction over that place and, therefore, we confirm the view expressed by the Division Bench of this Court in the case of Golla Ramana Rao (supra).
8. On perusal of the order passed by the Magistrate, it is evident that the respondents had not challenged the trritorial jurisdiction of the Magistrate before the case was disposed of on 27.1.1994. On the other hand, they had participated in the proceedings and had adduced evidence also. For the first time, in Criminal R.C. No 77/1994, the respondents had raised the question of jurisdiction and the impugned order was set aside and the case was remanded by the learned Single Judge of this Court for framing issues regarding jurisdiction and income of the petitioners from the joint Hindu family property.
9. The question, therefore, is whether under the aforementioned circum- stances, the provisions of Section 462 of the Code of Criminal Procedure are attracted to the case on hand?
10. Section 462 of the Code of Criminal Procedure reads as under:
'462. Proceedings in wrong place-No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong Sessions Division, district Sub-Division or other local area, unless it appears that such error has in fact occasioned a failure of justice.
11. Section 462 of the Code of Criminal Procedure corresponds to Section 531 of the Code of Criminal Procedure, 1898 (for short, the old Code). The policy of the Code is to uphold, in most cases, the orders passed by the Criminal Court which was lacking in local jurisdiction or which had committed irregularities unless failure of justice has been occasioned through such want of jurisdiction or such illegalities or irregularities.
12. In the case of Smt Raj Kumari Vijh v. Dev Raj Vijh, : 1977CriLJ940 , the Apex Court, relying on its earlier decision in the case of Purushottamdas Dalmia v. State of West Bengal, : 1961CriLJ728 , has reiterated that:
'......there are two types of jurisdiction of a Criminal Court, namely, (1) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (2) its territorial jurisdiction. While the former goes to the root of the matter and any transgression of it makes the entire trial void, the latter is not of a peremptory character and is curable under Section 531 of the Code. Territorial jurisdiction is provided' just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the Court'. Sub-section (8) of Section 488 in fact provides that proceedings under the section 'may be taken against any person in any district where he resides or is, or where he last resided with his wife or, as the case may be, the mother of the illegitimate child.' This therefore is ordinarily the requirement as to the filing of an application under Section 488 within the limits of the jurisdiction of the Magistrate concerned.
So where a Magistrate has the power to try a particular application under Section 488, and the controversy relates solely to his territorial jurisdiction, there should, ordinarily, be no reason why Section 531 of the Code should not be applicable to the order made by him. It has therefore to be examined whether there were any such circumstances in this case for which the High Court could justifiably refuse to apply the provisions of Section 531.'
13. In the case of Raj Kumari Vijh (supra), both the parties to the proceedings for maintenance under Section 488 of the old Code had led evidence on merits. The Magistrate passed final order holding that it has jurisdiction to try the case, particularly because there was no specific denial of the allegation of the appellants that the parties last resided together as wife and husband in Lalpur Village in Delhi towards the end of December, 1968. The High Court found that the parties did not reside together at Village Lalpur and for that reason, took the view that the Delhi Court has no jurisdiction to entertain the appellant's application for maintenance under Section 488 of the old Code. The Apex Court did not interfere in the finding of fact, but held that the High Court has committed a serious error of law in refusing to invoke Section 531 of the old Code in the facts and circumstances of the case. The Apex Court observed that it was not in controversy that the Magistrate who took the proceedings on the appellant's application under Sub-section (1) of Section 488 of the old Code, was one of the Magistrates mentioned in that sub-section and the respondent had raised a controversy as to his local jurisdiction and the Magistrate had ordered the parties to lead all their evidence and had not tired the question of jurisdiction as a preliminary issue. Therefore, the argument that the Magistrate gave himself jurisdiction by recourse to Section 531 of the old Code was rejected. It has been held that, on considering the entire evidence as also the conduct of the appellant, the Magistratehad concluded that it has jurisdiction to try the application and, therefore, there was no reason why Section 531 of the old Code should not be held to be applicable in that case. The Apex Court was further pleased to observe that there was no question of failure of justice or prejudice to the respondent. Holding so, the judgment of the High Court was set aside and the order of the Magistrate granting maintenance was restored.
14. As noted above, the respondents had submitted to the jurisdiction of the Magistrate exercising powers in Ichapuram. They had led evidence also. They did not question the territorial jurisdiction of the Magistrate during the proceedings pending before him. For the first time, the question of jurisdiction was raised in Criminal R.C. No. 77/1994. Where the respondents did not raise the objection regarding jurisdiction in the Trial Court and took the chance of getting order in their favour, it cannot be said that there was failure of justice or the case of the respondents had been prejudiced because the case was tried by the Magistrate exercising power in Ichapuram. They should have raised the objection at the early stage of the proceedings. Failure to do so proves conclusively that there was no prejudice or failure of justice.
15. For the foregoing reasons, we are of the view that, on the authority of Raj Kumar Vijh (supra), the learned Single Judge should have disposed of the Criminal R.C. No. 77/1994 instead of remanding it with the direction to frame issue, inter alia, regard ing the territorial jurisdiction of the Magistrate to try the case. After remand, the Magistrate did not invoke the provisions of Section 462 of the Code of Criminal Procedure on the erroneous conception of law that the case of Raj Kumar Vijh (supra) was no-applicable because the Apex Court had laid down the law in relation to Sections 531and 488 of the old Code, as also on the ground that the case has been remanded by the High Court to be tried on the question of jurisdiction.
16. The learned Single Judge did not consider the provisions of Section 462 of the Code of Criminal Procedure. The order remanding the case is not binding on us and the matter is sub-judice. Under these circumstances, there appears to be no reason as to why Section 462 of the Code of Criminal Procedure should not be held to be applicable to the case on hand. It appears to be a fit case in which the provisions of Section 462 of the Code of Criminal Procedure should be invoked.
17. In the result, we set aside the order passed by the Magistrate after remand on 19.4.1995, whereby the petition has been ordered to be returned to the petitioners for presentation before the proper Court and overlooking the irregularity pertain- ing to jurisdiction, we excuse the bona fide act of the Magistrate, whereby he has granted maintenance to the petitioners i.e., parents vide his order dated 27.1.1994, and that order is restored. At this stage, the learned Counsel of the respondents states that the 1st petitioner-father had expired on 9.3.1998. If that is so, the 1st respondent shall not be liable to pay maintenance allowance, granted by the Magistrate to the first petitioner, after 9.3.1998.
18. Before parting we may observe that, time has yet to come in India, where old parents should be shoved off to infirmaries. It appears that, considering the problems of old and infirm parents, who have no money to maintain themselves in their old age, the Legislature have given them the right to claim maintenance from their earning children if the parents are unable to maintain themselves. There is no denying the fact that a poor mother or father, who is ailing and infirm, in her or his old age, is unable to take a long journey without the aid of an escort and that too without sufficient money. Therefore, there appears to be no earthly reason as to why the benefit given to wives should not be provided to old parents and eligible children. If the Legislature does not consider it fit to enlarge the benefit under Section 126 of the Code of Criminal Procedure, as it .has done in the case of wife, to initiate proceedings at the place where they reside, it would be rather impossible for them to ever get any amount of maintenance and their right to claim maintenance would remain as a dead letter in the statutory book. Right to claim maintenance has been given to them as a piece of social legislation. In order to prevent starvation and vagrancy as also to prevent them from forced living in infirmaries, the Legislature in its wisdom should make suitable amendments in Section 126(1)(b) of the Code of Criminal Procedure, by adding the words 'or where his parents or children reside' 'after the word' or', to enable parents and eligible children, legitimate or illegitimate, to initiate proceedings under Section 125 of the Code of Criminal Procedure in the place where they reside.
19. The revision petition is thus disposed of.