Enforce ment of order. Proviso. trate thinks fit, and to pay the same to such person as the Magistrate from time to time directs1. Such allowance shall be payable from the date of the order. If any person so ordered wilfully neglects to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant 2 for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment3 for a term which may extend to one month*: Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her; and may make an order under this section notwithstanding such offer, if he is satisfied that such person is living in adultery, or that he has habitually treated his wife with cruelty. No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. On proof that any wife in whose favour an order has been made under this section is living in adultery7, or that without sufficient reason she refuses to live with her husband, or that The Magistrate cannot enter into any question as to the lawful guardianship of a child, 4 Cal. 374. Where the claim for maintenance had been released, the Magistrate should not enforce the order, 10 Mad. 13. It will be observed that sec. 488, like the Contract Act, sec. 68, illustration b, assumes that husbands and parents are under a legal obligation to support their wives and children. That a wife residing with her husband has a right to be maintained by him, see 9 Bom. 45. But, apart from the personal laws of the Natives, there seems to be in India no express civil obligation on the part of a father to maintain his child. So in England, Bazeley v. Forder, L. R., 3 Q. B. 559, per Cockburn C.J. 2 See form, Sched. V. No. 41. 3 simple or rigorous. Such a sentence is absolute and the imprisonment does not cease on payment, 8 Mad. 70. See also 9 All. 240. For a form of warrant of imprisonment on failure to pay maintenance, and of a warrant to enforce the payment by distress and sale, see Sched. V. Nos. 40, 41. 5 A Hindú must offer to maintain' his wife as part of his family and to 'live' with her as a husband lives with his wife, 6 Mad. 371, 372. 6 A Hindú husband's marriage of a second wife is not a sufficient ground, 7 Mad. 187. 7 8 Bom. Cr. Ca. 124: 5 All. 224. they are living separately by mutual consent, the Magistrate shall cancel the order. All evidence under this chaper 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-cases1. ance. 489. On proof of a change in the circumstances of any Alteration person receiving under section 488 a monthly allowance, or in allowordered under the same section to pay a monthly allowance to his wife or child, the Magistrate may make such alteration in the allowance as he thinks fit, provided the monthly rate of fifty rupees be not exceeded. ment of ance. 490. A copy of the order of maintenance shall be given Enforcewithout payment to the person in whose favour it is made, or order of to his guardian, if any, or to the person to whom the allowance maintainis to be paid; and such order shall be enforceable2 by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance due 3. 1 A Hindú marriage of a man reverting from Christianity to Hindúism is not void in consequence of a previous Christian marriage, 4 Mad., H. C. Rulings, iii. The Hindú as well as the Christian wife of such a person is therefore entitled to maintenance under this section. As to the High Court's power to revise orders made under this section, see 20 Suth. Cr. 58, 5 Bom. H. C., Cr. Ca. 81. Of course section 488 does not deprive a wife of any remedy in the Civil Courts which she would otherwise have had against her husband, 6 Suth. Civ. R. 57, col. 2. * This does not deprive the Magistrate of his jurisdiction under section 488. When the person against whom the order is made is beyond his jurisdiction he may, in his discretion, issue a warrant under section 488, or refer the applicant to a Magistrate 3 The order does not deprive a Power to tions of the CHAPTER XXXVII. DIRECTIONS OF THE NATURE OF A HABEAS CORPUS. 491. Any of the High Courts of Judicature at Fort Wilissue direc- liam, Madras and Bombay may, whenever it thinks fit, directnature of a (a) that a person within the limits of its ordinary original civil jurisdiction be brought up before the Court to be dealt with according to law; habeas cor pus. Saving of laws relating to State pri soners. (b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty; (c) that a prisoner detained in any jail situate within such limits be brought before the Court to be there examined as a witness in any matter pending or to be inquired into in such Court; of (d) that a prisoner detained as aforesaid be brought before a court-martial or any commissioners acting under the authority any commission from the Governor General in Council for trial or to be examined touching any matter pending before such court-martial or commissioners respectively; (e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and (f) that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment1. Each of the said High Courts may, from time to time, frame rules to regulate the procedure in cases under this section2. Nothing in this section applies to persons detained under Bengal Regulation III of 1818, Madras Regulation II of 1819 or Bombay Regulation XXV of 1827, or the Acts of the Governor General in Council No. XXXIV of 1850 or No. III of 1858. As to the power of the late Supreme Courts to grant writs of habeas corpus, see I Knapp, 1. This chapter seems not to affect the English prerogative writ of habeas corpus ad subjiciendum, which runs into all parts of British India. The prohibition in 25 & 26 Vic. c. 20 does not apply, as there never has been a court in British India 'having authority to grant and issue the said writ and to ensure the due execution thereof, throughout such... dominion.' 2 See the rules made by the High Court at Fort William under the corresponding section of Act X of 1875, Gazette of India, Part II, 12 Aug. 1876, p. 397. PART IX. SUPPLEMENTARY PROVISIONS. CHAPTER XXXVIII. OF THE PUBLIC PROSECUTOR. appoint 492. The Governor General in Council or the Local Go- Power to vernment may appoint, generally, or in any case, or for any Public specified class of cases, in any local area, one or more officers Prosecuto be called Public Prosecutors 1. In any case committed for trial to the Court of Session, the District Magistrate, or, subject to the control of the District Magistrate, the Sub-divisional Magistrate, may, in the absence of the Public Prosecutor, or where no Public Prosecutor has been appointed, appoint any other person, not being an officer of police below the rank of Assistant District Superintendent, to be Public Prosecutor for the purpose of such case. tors. Prosecutor may plead Court. 493. The Public Prosecutor may appear and plead without Public any written authority before any Court in which any case of which he has charge is under inquiry, trial or appeal; and, if in any any private person instructs a pleader to prosecute in any pleaders Court any person in any such case, the Public Prosecutor shall under his conduct the prosecution, and the pleader so instructed shall act therein under his directions 2. direction. 494. Any Public Prosecutor appointed by the Governor Effect of General in Council or the Local Government 3 may, with the withdrawconsent of the Court, in cases tried by jury before the return prosecu 1 Sec. 4, cl. (m), supra, p. 62. The Bengal Government has appointed all Government pleaders in the Lower Provinces to be public prosecutors, Calcutta Gazette, 23 Nov. 1881, Part I, p. 1026. 2 As to his duty to call and examine witnesses, see 7 All. 904, 8 Cal. 121; and as to the mode in which 3 but not one appointed under sec. al from tion. Permission prosecu tion. of the verdict, and in other cases before the judgment is pronounced, withdraw from the prosecution of any person; and, upon such withdrawal, (a) if it is made before a charge has been framed, the accused shall be discharged; () if it is made after a charge has been framed, or when under this Code no charge is required, he shall be acquitted. 495. Any Magistrate inquiring into or trying any case to conduct may permit the prosecution to be conducted by any person other than an officer of police below a rank to be prescribed by the Local Government in this behalf with the previous sanction of the Governor General in Council1; but no person, other than the Advocate General, Standing Counsel, Government Solicitor, Public Prosecutor or other officer generally or specially empowered by the Local Government in this behalf shall be entitled to do so without such permission. Any person conducting the prosecution may do so or by a pleader. do so personally An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted 2. Bail to be taken in case of bailable offence. CHAPTER XXXIX. OF BAIL. 496. When any person other than a person accused of a non-bailable offence 3 is arrested or detained without warrant by an officer in charge of a police-station 4, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, 1 Act X of 1886, sec. 13. See 13 Suth. Cr. 18. 2 This section did not supersede the provision of Bom. Act VII of 1867, sec. 23, which authorised a police officer to prosecute offenders up |