In this case the Petitioner before us applied to the Chief Presidency Magistrate under the provisions of sec. 488 of the Code of Criminal Procedure. The application was against one St. John William Jolly who, it appears, is her husband. They have not been living together and the lady applies for maintenance. At the hearing of the case a preliminary objection was taken on the ground of jurisdiction. It is stated that the husband has lived in Darjeeling from the year 1913, and that he is still a resident of Darjeeling. But in his own affidavit the Opposite Party, the husband, admits that he was in fact in Calcutta on business from the 29th November till the 9th of January. The Petitioner's first application bears date the 9th January. The husband says that he left Calcutta for Darjeeling on that day, and though it is clear that the petition was written on the 9th it is not clear that it was actually presented to the Magistrate before the 10th January. But the husband further admits that he had returned to Calcutta on the 16th January and has been in Calcutta since or at least throughout the continuance of the proceedings. Now, on the 23rd January when the husband was admittedly in Calcutta, the Petitioner put in a fresh application to the Presidency Magistrate, requesting that petition and her original petition of the 9th should be treated as parts of one and the same petition and that action should be taken on her application as on and from the 23rd January. Obviously the residence of the husband in Calcutta from the 16th to the 23rd January, when that application was made, is sufficient to give the Court jurisdiction having regard to sub-sec. (9) of sec. 488, Cr. P.C
We therefore make the rule absolute, set aside the order complained of and direct that the case be remitted to the Presidency Magistrate before whom it was to be heard and decided by him on the merits.
We desire to add that we trust that after the delay that has already been allowed to occur, the learned Presidency Magistrate on the return of the case to him will proceed to dispose of it With all expedition.
S.C.M
Rule made absolute.