JUDGMENT H.N. Seth, J. - This is a reference made by the Sessions Judge of Etawah, recommending, that the order dated 14-2-1968 passed by the SDM, Etawah, in a case under section 488 of the CrPC rejecting the complaint under section 249 of the Code and discharging the opposite. party, be set aside and. the SDM be directed to proceed with the case in accordance with law. 2. Smt. Bitani filed an application under section 448 of the Cr PC for the grant of maintenance allowance against Hori Lal. Some witnesses were examined on her behalf. On 14-2-1968 her witnesses were not present and the SDM passed the following order : "Fifteen dates have been given to the complainant for producing prosecution evidence but only five witnesses have been examined. No evidence has come forth today. The complaint is dismissed u ,1S. 249 of the CrPC . The opposite-parties are discharged." Smt. Bitani filed a revision and the learned Sessions Judge has made the reference with the recommendations mentioned above. The learned Sessions Judge has expressed an opinion, that to the proceedings under section 488 of the Cr. P. C. the provisions of S. 249 of the Code have no application and as such the SDM could not make an order under that section. 3. I agree with the learned Sessions Judge that the SDM was wrong in dismissing Smt. Bitani's application mule under section 488 of the Cr. P. C. on the ground that her remaining witnesses were not present on the date fixed. 4. S. 488 of the CrPC provides for a swift and cheap remedy against any person who despite means neglects to maintain his wife or child. Person making the application for maintenance cannot be described to be as a complainant, and the husband or the father against whom the application is made cannot be termed as a person accused of any offence. The proceedings against the husband or the father cannot he described as a trial for an offence. As such, these proceedings cannot he termed to be a summons case within the meaning of the Crl C. Provision of Ch. XX of the Code which contains S. 249 deals with the trial of a summons case. Ch. XXXVI of the Code deals with applications for maintenance of wife and children. As such, these proceedings cannot he termed to be a summons case within the meaning of the Crl C. Provision of Ch. XX of the Code which contains S. 249 deals with the trial of a summons case. Ch. XXXVI of the Code deals with applications for maintenance of wife and children. S. 488 which lies in this Chapter lays down the procedure for dealing with an application for maintenance. Sub-S. (6) of this section provides that all evidence under this Chapter shall be taken in the presence of the husband or father as the case may be or when his personal attendance is dispensed with in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons cases. The only provision applicable to summons case that has been applied to proceedings u/ch. XXXVI is the provision about the manner of recording evidence. 5. The entire procedure for the trial of summons case has not been made applicable to proceedings under section 488. As stated above, provision of Ch. XX of the Code deals with the procedure for the trial of summons case and it does not deal with the manner in which the evidence is to be recorded in a summons case. As such S. 488 (6) does not make the provisions of Ch. XX which includes S. 249 applicable to a proceeding u/ch. XXXVI. Manner for recording of evidence in it summons case has been laid clown in S. 355 of the CrPC. 6. I am therefore of opinion that the SDAI was not justified in having recourse to S. 249 of the CrPC. 7. There is no provision in S. 488 of the Cr. P. C. according to which, if remaining witnesses were, not produced the application for maintenance should be dismissed on that ground. If on the date fixed the witnesses for the applicant were not present the court could adjourn the case in accordance with S. 344 of the CrPC which is a general provision governing all enquiries and trials under the Code. If the court was not satisfied that there was sufficient reason to adjourn the hearing it should have asked the opposite-party to lead his evidence in the case. If the court was not satisfied that there was sufficient reason to adjourn the hearing it should have asked the opposite-party to lead his evidence in the case. If the evidence produced in the case was not sufficient to prove that the opposite-party having sufficient means refused or neglected to maintain his wife the application under section 488 could be rejected on merits. If on the evidence already produced a finding about the means, neglect or refusal to maintain as provided in S. 488 CrPC could be recorded the Magistrate should have made an order directing the opposite parties to make such monthly allowance as he thought fit. In any case, the application for maintenance could not be rejected without going into the merits of the case. 8. I, therefore accept the reference, set aside the order of the SDM dated February 14, 1968 and direct that he should proceed to deal with the case in accordance with law.