Balaka Baburao vs Balaka Ramanamma and Others

V. Bhaskara Rao, J.—The question referred to us for an authoritative pronouncement is whether the service of notice has to be effected only in accordance with the procedure under Chapter VI of the Code of Criminal Procedure for the purpose of passing an ex parte order under the proviso to sub-section (2) of Section 126 of the Code; if so, whether the ex parte order passed under the said proviso on the basis of service by registered post or by any other mode was liable to be set aside.

The facts and circumstances giving rise to this Reference in brief are :

Respondent No. 1 is the wife and respondents 2 and 3 are minor children of the revision petitioner who is working as a Constable in R.P.F. (Corp. No. 3409) at Jagdalpur, Madhya Pradesh. The respondents filed a petition u/s 125 of the Code of Criminal Procedure seeking maintenance as MC. No. 1/1990 on the file of Judicial First Class Magistrate, Palasa. It was dismissed on the ground that the parties entered into a compromise. The respondents thereafter filed another petitioner for the same relief as MC. No. 13/1992 and they alleged that the revision petitioner falsely represented that he would maintain them and got the earlier petition dismissed, but in fact he failed to maintain them. Notice of MC. No. 13/1992 was sent to the revision petitioner through police and also by registered post acknowledgement due. The revision petitioner refused to receive the registered post notice and hence the postal authorities endorsed refusal on the postal cover. The revision petitioner was thus set ex parte and an ex parte order u/s 125 of the Code of Criminal procedure has been passed on 21-5-1993. The revision petitioner filed a copy application on 31-7-1993 seeking certified copy of the above order. His case is that he came to know about the ex parte order in the last week of July, 1993 when he visited his native village to attend to his sickly parents and that he was furnished with the certified copy of the order on 19-8-1993 and immediately thereafter he filed a petition for setting aside the ex parte order. He asserted that he never refused to receive any summons or notice when tendered for service by the police or postal authorities; that the mode of service through registered post is not contemplated by the Code of Criminal Procedure and hence the service is not valid in the eye of law. The petition was resisted by respondents 1 to 3 on the ground that it is barred by limitation. The learned Judicial First Class Magistrate, Palasa, considered the rival contentions and held that the petition is barred by limitation as the same is filed beyond 3 months period which is prescribed by the proviso to sub-section (2) to Section 126 of the Code of Criminal Procedure. He further held that the refusal of notice sent by registered post amounts to service of notice. Aggrieved by the above order refusing to set aside the ex parte order, this revision petition is filed by the respondent in MC. No. 13/1992. It came up for hearing before our learned brother V. Raja Gopala Reddy, J., and the following two grounds have been canvassed by the learned counsel for the revision petitioner.

that the service of notice by way of registered post in MC. No. 13/1992 on the petitioner was not in accordance with law;

that the petition to set aside the ex parte order was within 3 months from the date of knowledge.

In support of the first contention, a decision of this Court in Guthikonda Sri Hari Prasada Rao Vs. Guthikonda Lakshmi Rajyma and Others, has been cited. On behalf of the respondents it is contended that the proceedings under Chapter VI of the Code of the Criminal Procedure are not criminal in nature and hence service by registered post is permissible and a Full Bench decision of Kerala High Court reported in Balan Nair Vs. Bhavani Amma Valsalamma and Others, was relied upon. Our learned brother considered the rival contentions in extenso and expressed the view that the proceedings under Chapter VI of the Code are civil proceeding and accordingly he differed with the ration laid down in the judgment cited supra and fell inclined to accept the ratio laid down by the Full Bench cited supra. He, therefore, sought for a reference of this question to a Division Bench for an authoritative pronouncement.

On the second ground relating to limitation, he is of the view that limitation runs from the date of knowledge and not from the date of the order and accordingly he held that the petition is within limitation. We shall advert to the second ground after considering the first ground.

Sri A. Ravi Shanker strenuously contended that service by registered post is unknown to the Criminal Procedure Code and hence the so-called refusal of notice by the revision petitioner may be ignored. He relied on the judgment cited supra. On the other hand Sri K. Venkat Rao, learned counsel for the respondents vehemently argued that the proceedings under Chapter VI of the Code are quasi civil in nature and a provision is made in the Criminal Procedure Code with a view to afford speedy relief to the neglected wife, children and parents. He further contended that the respondent in a proceeding u/s 125 of the Code of Criminal Procedure is never treated as an accused and no steps are taken by issuing a warrant for compelling his attendance and there is an express provision that proceedings may be held behind his back if he chooses to remain ex parte. He, therefore, argued that Full Bench decision of Kerala High Court has laid down the correct law on this subject.

We carefully considered the rival contentions and we have applied our anxious consideration to the judgment rendered by a learned single Judge of this Court cited supra as well as Full Bench decision of Kerala High Court cited supra. Our learned brother V. Raja Gopal Reddy, J., has considered the scope of Sections 125 and 126 as well as Sections 60 - 69 of the Code of Criminal Procedure from all the angles and he has rightly held that the decision in G. S. H. Prasada Rao''s case (supra) does not lay down good law. It is held �

"No where in Chapter IX of the Code, which deals with maintenance, the person against whom maintenance is sought, was referred to as the accused or that the notice should be served in the same manner as prescribed for service of summons, to the accused to compel his appearance (Ch. VI of the Code). it is also relevant to note that, though the provisions relating to recovery of maintenance occur in the Code, by that circumstance alone, it should not lead us to think that the said proceedings are criminal in nature and content. Since no offence has been created under the said provisions of Ch. IX of the Code nor any punishment imposed, the said proceedings are not strictly criminal. The object of this provision is only to ameliorate the distressed and neglected women, children or parents. For the aforementioned reasons, I am of the view that the proceedings under this Chapter are essentially, of civil nature. The service of summons under the Code are regulated under Ch. VI of the Code, relating to "process to compel appearance". Summons are not defined in the Code. The summons are normally issued to the accused persons and to the witnesses to compel their appearance in a criminal case. It is relevant to note that Section 69 a new provision has been added in the new Code, under which it is provided that a Court issuing summons to witnesses, in addition may direct a copy of the summons to be served by registered post and the endorsement by Postal employee that the person refused to take delivery of the notice can be treated as duly served. This provision was made to avoid delay in the service of summons on the witnesses. Section 63 of the Code also provides for a letter being sent by post in case of service of summons on Corporate bodies and societies, to compel their appearance as accused. These provisions indicate that the Code itself indicated service of summons otherwise than in the manner prescribed under Ss. 61 and 62 of the Code even in criminal proceedings. Since the proceedings under this Chapter are essentially of civil nature, the procedure for service of summons need not be strictly within the four corners of Ss. 61 and 62 of the Code. What is important is to see that the respondent was put on notice of the proceedings that are being taken against him, so as to enable him to defend himself. It is well to remember that the proceedings u/Section 125 of the Code are of summary nature and designed to provide a speedy remedy to the distressed women and old parents, from being starved".

It is further held �

"The learned Judge of this Court in G.S.H. Prasada Rao''s case (supra), based his decision on the sole premise that the proceedings in Ch. IX of the Code being criminal proceedings, the service of notice should be effected only in accordance with the procedure prescribed in Ch. VI of the Code and any other mode of service be necessarily illegal. The learned Judge has not given a thought, whether the proceedings in Ch. IX of the Code could be of Civil nature and that there would be sufficient service of notice even if effected otherwise than mentioned in Ch. VI of the Code for the purpose of satisfying the requirement of the proviso to sub-section (2) of Section 126 of the Code. There was also no consideration regarding the object of service of notice under this Section. The fact that the person against whom order is sought to be passed under these proceedings was not an accused of any offence was also not kept in mind. Compelling a person to appear arises only when he is an accused or a witness in a criminal case. The Full Bench of Kerala High Court in the above case (supra), had taken pains to consider all these and other aspects".

We are inclined to accept the reasoning of our learned brother and we accordingly hold following the Full Bench Decision of the Kerala High Court that service by registered post is one of the modes of service contemplated by the Code of Criminal Procedure in proceedings under Chapter VI of the Code. The question referred to us is accordingly held against the revision petitioner and in favour of the respondents.

Turning to the question of limitation, the case of the revision petitioner is that 3 months period contemplated by proviso to Section 126(2) of the Code of Criminal Procedure has to be reckoned from the date of knowledge. It has been so held in Zohra Begum alias Aysha Begum Vs. Mohamed Ghouse Qadri Qadeeri and Another, and also in Joginder Singh Surmukh Singh Vs. Smt. Balkaran Kaur, and our learned brother also expressed the same view. We are in agreement with him insofar as the proposition that the period of limitation is to be reckoned from the date of knowledge, but the finding on the question referred to us viz., whether service by registered post is sufficient or not being in favour of the respondents will have bearing upon this question. As the revision petitioner has refused notice, it amounts to sufficient service and in such an event he is supposed to know the proceedings including the date of disposal of the petition. In that view of the matter, the period of limitation is to be reckoned from the date of the order i.e., 21-5-1993. Evidently the petition for setting aside the ex parte order is beyond 3 months from the date of the order and hence it is barred by limitation.

Thus, we are of the view that the revision case is devoid of any merit and it is fit to be dismissed.

In the result, the Criminal Revision Case is dismissed.

Revision dismissed.