Deepchand vs Smt. Ushaben

N.D.V. Bhat, J.—This petition is preferred against the order dated 16.1.1992 passed by the learned Additional Sessions Judge in Cr. Revn. No. 376/ 1991 confirming the order passed by the learned Judicial Magistrate First Class (''JMFC for short), II Court, Bijapur in Crl. Misc. No. 42/1990. In fact, the learned Additional Sessions Judge dismissed the revision petition on the count that the revision petition was barred by time. The facts relevant for the disposal of this petition, briefly stated, are as under:

The instant respondent filed Criminal Miscellaneous No. 42/1990 for maintenance u/s 125 Code of Criminal Procedure, against the instant petitioner. It appears that the learned JMFC purported to cause serve of notice to the instant petitioner by registered post. It is further seen that the instant petitioner is shown as having refused the registered post, with the result, he was treated ex parte and the order came to be passed by the learned JMFC, directing the instant petitioner to pay monthly maintenance at the rate of Rs. 300/- from 26.2.1990. This order was challenged before the learned Additional Sessions Judge, Bijapur in Crl. Rev. No. 376/1991. However, the Additional Sessions Judge found that the revision petition was barred by time. The application for condonation of delay in preferring the revision petition was dismissed. In the result, the revision petition also stood dismissed. It is under these circumstances, the instance petitioner has approached this Court with this application.

I have heard Sri S.G. Kulkarni, counsel for the petitioner and Sri I.R. Biradar, counsel for respondent.

Sri Kulkarni, petitioner''s counsel submitted to the court that the Magistrate has erred in passing the order after purporting to serve the notice on the instant petitioner by registered post. In this connection, he has relied on the decision of this Court in Bhimappa Gangappa v. Indirabai reported in 1981(1) Kar.LJ 353 and submitted that the order passed by the learned JMFC is rendered null and void. It is further pointed out that the learned Additional Sessions Judge was wrong in dismissing the application for condoning the delay. It is pointed out that there was no delay at all having regard to the fact that he was not served with notice in the way and manner as he was required to be served. In this connection, he was relied on the decision in the Assistant Transport Commissioner, Lucknow and Others Vs. Nand Singh,

Placing his submissions on these lines, learned Counsel contended that the petitioner deserves to be allowed.

On the other hand, Sri Biradar, counsel for respondent submitted to the court that the revision petition before the Additional Sessions Judge filed by the instant petitioner apart from the fact that it was barred by time, was not maintainable. Dilating on this aspect, it was contended that the only remedy open to the petitioner if at all, was to file an application for setting aside the order passed by the JMFC dated 19.7.1990 and a revision petition before the Sessions Judge was not maintainable in the facts and the circumstances of the case. In this connection, the learned Counsel invited the attention of this Court to the decision in Bhupinder Singh Vs. Narinder Kaur, and the decision in State of Mysore v. Ghousudain and Anr. 1972(2) Cri.LJ 808. It is also argued by Sri Biradar, learned Counsel for the respondent that the decision cited at the Bar by the other side, viz., the decision in Bhimappa Gangappa v. Indirabai 1981 (1) Kar.LJ 353 has no application to the facts of this case inasmuch as in the instant case, the petitioner has not approached the Magistrate at all with reference to the provisions reflected in Section 126(2), Code of Criminal Procedure In sum, the learned Counsel for the respondent submitted to the court that the petition is liable to be dismissed.

I have given my anxious consideration to the submissions made by the learned Counsels on either side.

At the very outset, it needs to be noted and it is not disputed that there was no attempt on the part of the learned Magistrate to get the notice served on the instant petitioner through the instrumentality of the police. It is well settled that a notice with reference to the proceedings under Code of Criminal Procedure including the proceedings u/s 125 Code of Criminal Procedure will have to be had through the provisions reflected in Sections 62 to 69, Code of Criminal Procedure At this juncture, it is necessary to notice here that the question of issuing notice to the party to the proceedings through registered post in foreign to the provisions of Code of Criminal Procedure It is not necessary to dilate further on this aspect, having regard to the ratio laid down by this Court in Bhimappa Gangappa''s case. In the said Case, among other things, it is pointed out by this Court that service of notice of an application u/s 125 Code of Criminal Procedure by registered post is illegal, as u/s 62, Code of Criminal Procedure, it has to be served by a Police Officer or the Officer of the Court. At this juncture, it is also necessary to make a mention here that this aspect was dealt with by this Court in the earlier decision of this Court and this Court has dealt with that aspect in detail in the decision in Criminal Petition No. 818/1988 rendered on 5.2.1992. Under these circumstances, it is not necessary to dilate on this aspect. It will suffice if it is observed that the service through registered post is illegal with reference to a proceedings u/s 125, Code of Criminal Procedure

Sri Biradar, learned Counsel for the respondent, however contended as pointed out earlier, that even assuming for the time being that the order in question was ex-parte in that the service was not proper the only remedy to which the other side could have had recourse to was the remedy provided u/s 126(2), Code of Criminal Procedure in particular, the proviso thereunder. In fact, he has relied on the decision of this Court in State of Mysore v. Ghousuddin and Anr. 1972(2) Cri.LJ 808 with reference to this aspect. At this juncture, it is necessary to state briefly the gist of the facts relevant for consideration with reference Ghousuddin''s case. In the said case, the facts were summarized at para 2 of the said judgment. It would be indeed in fitness of things to cull out para 2 of the said Judgment (Ghousuddin''s case) to have a clear idea as regards as to what the said case is. Para 2 reads as under:

The few facts necessary for a decision in this case are: That respondent 2 wife filed an application against respondent-1 her husband u/s 488 of the Criminal Procedure Code claiming maintenance from him. The husband appeared through an Advocate and filed objections. Ultimately the wife came to be examined and cross-examined. Her cross-examination was completed on 21.7.1970. The order sheet of the dated 21.7.1970 reads as follows:

Parties are present. Cross examination of PW1 and PW2, PW3 and PW4''s statement recorded, petitioner''s evidence heard. Case adjourned for defence evidence call on 11.8.1970.

On 11.8.1970, the counsel appearing on behalf of the husband reported no instruction, and the case was adjourned for arguments. On 17.8.1970 also it was adjourned to 17.8.1970 for arguments to 24.8.1970. On 24.8.1970 the arguments on behalf of the wife were heard and orders were pronounced on 31.8.1970. By this order, the Magistrate has allowed the application of the wife and fixed the quantum of maintenance at Rs. 40/ - per month.

A perusal of the said decision would indeed go to show that in the said case as a matter of fact, there was proper service of notice and the respondent in fact had appeared. Subsequently, it was noticed that the remained ex-parte. It was in the context of those facts that this Court took the view that the person against whom on order is passed ex-parte will have to approach the Magistrate himself with reference to the proviso u/s 126(2) of Code of Criminal Procedure At this juncture, it would be indeed in fitness of things to cull out the provisions of Section 126(2), Cr. P.C. It reads as under:

126(I) Proceedings u/s 125 may be taken against any person in any district -

(a) xx xx xx

(b) xx xx xx

(c) xx xx xx

(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made or, when the personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases:

Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance in proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper.

A perusal of said provisions itself would go to show that the same would apply to a case where the person can be said to have been effectively served, but he did not appear before court and the matter came to be decided ex parte. Such interpretation is absolutely necessary having regard to the fact that such person is expected to approach the Magistrate to get an ex parte order vacated within three months next from the date of the order. The question of getting the ex-parte order vacated within three months next from the date of the order would arise only in respect of case where there can be said to have been effective service, but the person concerned did not and could not appear for one reason or the other. Such is not the situation here.

In the instant case what is sought to be contended on behalf of the petitioner is that the very service is bad in law ab initio. In fact the decision cited by Sri Biradar in Bhupinder Singh Makkar''s case appears to apply to the facts of the instant case. In the said case, among other things, it is pointed out that when on the fact of the record itself, as aggrieved petitioner can show any illegality in the procedure or impropriety. In exercise of any power of the Magistrate in passing the exparte maintenance order, there is no bar for such a petitioner to straightway approach the Sessions Court or the High Court. In the instant case, the main thrust of the submission of the petitioner is that the very service of notice was not a service at all. In fact, his submission is supported by a decision of this Court in Bhimappa Gangappa ''s case referred to earlier. It is significant to notice here that in the said case, this Court apart from holding that service by registered post is illegal has also pointed out that when the Magistrate did not make any record of his satisfaction before placing the respondent ex parte that he was wilfully evading to attend the court placing the respondent ex parte itself is not in accordance with Section 126(2) Code of Criminal Procedure and the question of making an application to set aside the ex-parte order within three months does not arise. In my opinion, it is crystal clear that when the service itself is not through the instrumentality of the procedure provided by the Code of Criminal Procedure, it cannot be called "service" at all. Under these circumstances, I have no hesitation whatsoever in holding that the decision of this Court in Ghousuddin''s case pressed into service by the learned Counsel for the respondent does not apply to the facts of the instant case at all.

If that be so, it will have to be next seen as to whether the learned Additional Sessions Judge has committed any mistake in dismissing the criminal revision petition filed before him. It is seen that the learned Sessions Judge has chosen to dismiss the application filed by the instant petitioner for condoning the delay on the ground that the revision petitioner has not shown sufficient cause to condone the delay. On a careful reading of the order passed by the learned Session''s Judge, it appears to me that the learned Sessions Judge has not applied his mind with reference to the points arising for consideration even with reference to the question relating to the condonation of delay. It is necessary to notice here that once when the conclusion becomes inescapable that there was no service of notice at all on the person against whom the order is passed he cannot be imputed with any knowledge of order with reference to any particular date. That aspect ought to have been borne in mind by the learned Sessions Judge. However, that aspect has not been considered by the Sessions Judge. In my opinion, the learned Sessions Judge has erred in this respect having regard to the fact that there was no service of notice at all in law. I have, therefore no hesitation whatsoever in holding that there was sufficient cause for the instant petitioner to have remained absent. Looked at from any point of view, therefore, I am of the view that the order passed by the JMFC, Bijapur is bad in law. It is not necessary for me to send back the matter for the consideration of the Sessions Judge on merits since the order passed by the JMFC is found to be illegal on the face to it and the proper course of this Court is to set aside the orders passed by the learned JMFC, and the learned Additional Sessions Judge and to send back the matter to the JMFC, for fresh disposal according to law.

In the result, the Criminal Petition is allowed. The order dated 19.7.1990 passed by the Judicial Magistrate First Class II Court, Bijapur in Crl. Misc. No. 42/1990 and the order dated 16.1.1992 passed by the Additional Sessions Judge, Bijapur in Crl. Revision No. 376/1991 are set aside and the matter is remitted back to the JMFC, II Court, Bijapur to dispose of the application filed by the respondent for maintenance expeditiously. The petitioner and respondent to appear before the JMFC, Bijapur in Crl. Misc. No. 42/1990 on 19.3.1992 at 11.00 a.m.

It is further made clear that if either of the parties does not appear before the JMFC, he (JMFC) is at liberty to go ahead as if there were proper service of notice to both the persons. Having regard to the fact that this is a maintenance matter, the JMFC is directed to dispose of the application of maintenance at any rate by the end of April 1992 and report compliance of this order.