Deepchand vs Smt. Ushaben

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 under Section 125, Cr. P.C. 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. L.J. 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 has

relied on the decision in the Assistant Transport Commissioner, Lucknow & Others v Nand Singh, reported in AIR 1980 SC 15.

Placing his submissions on these lines, learned counsel contended that the petition 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 circumstances of the case. In this connection, the learned Counsel

invited the attention of this Court to the decision in S. Bupinder Singh Makkar v Smt. Narinder Kaur & Others, 1990 Crl. L.J. 2265 and the

decision in State of Mysore v Ghousuddin & Another, 1972(2) Crl. L.J. 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. L.J. 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), Cr. P.C. 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 Cr.

P.C. including the proceedings under Section 125, Cr. P.C. will have to be had through the provisions reflected in Sections 62 to 69, Cr. P.C. At

this juncture, it is necessary to notice here that the question of issuing notice to the party to the proceedings through registered post is foreign to the

provisions of Cr. P.C. 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 under Section 125,

Cr. P.C. by registered post is illegal, as under Section 62, Cr. P.C. 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

under Section 125, Cr. P.C.

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 under Section 126(2), Cr. P.C. in particular, the proviso thereunder. In fact, he has relied on the decision of this Court in State of

Mysore v Ghousuddin & Another, 1972(2) Crl. L.J. 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 summarised 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 under

Section 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 date

21-7-1970 reads as follows:

Parties are present. Cross-examination of PW. 1 and PW. 2, PW. 3 and P.W. 4''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 to 17-8-1970 for arguments.

On 17-8-1970 also it was adjourned 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 he 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

under Section 126(2) of Cr. P.C. 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(1) Proceedings under Section 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 his 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 willfully

avoiding service, or willfully 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 Bupinder 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, an aggrieved petitioner can show any illegality in the procedure or impropriety in exercise of

any power of the Magistrate in passing the ex-parte maintenance order, there is no bar for such a petitioner to straightaway 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 willfully evading to attend the Court placing the respondent

ex-parte itself is not in accordance with Section 126(2) Cr. P.C. 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 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 Sessions 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 for 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.