Gurdev Singh vs Prithpal Hour & Ors.

Y.P. Nargotra, J.—The respondents filed a petition under section 488 Cr.P.C. against the petitioner in the court of learned Sub Judge,

Jammu. The trial court issued process against the petitioner/nonapplicant by adopting the mode of registered post. Registered cover which was

sent alongwith AD for effecting the service upon the petitioner/nonapplicant was received back with the report of his refusal to acknowledge the

service. The petitioner, was therefore, set exparte and after taking the evidence of the claimants the learned trial court vide its order dated

24.7.2004 awarded the maintenance to the claimants. The petitioner/nonapplicant preferred a revision against the order of the trial court before the

learned 1st. Addl. Sessions Judge. The learned 1st. Additional Sessions Judge, Jammu vide his order dated 31.1.2006 has made this reference

under Section 438 of Cr.P.C. with the recommendation that order dated 24.7.2004 should be set aside. The principal contention of the

petitioner/nonapplicant before the learned Sessions Judge was that service by post was not the permissible mode of service and therefore, by

adopting that mode the trial court could not have legally passed the exparte order against the petitioner. Learned Sessions Judge by relying upon a

judgment of this court reported in Abdul Latif vs. Mst. Arzam Bi (1987 KLJ 279) came to the view that service of the petitioner was not proper

and, therefore, exparte order of granting maintenance passed by the trial court was not sustainable in law.

I have heard the learned counsel for the respondent/applicants.

Learned counsel for the respondents has argued that postal mode of service could be validly adopted by the trial court and, therefore, no

illegality has been committed by it in placing the petitioner/nonapplicant exparte and deciding the application of the respondents exparte against

him. In support he has relied upon a Full Bench judgment of Kerala High Court rendered in Damodaran vs. Chellamma (II (1987)DMC 114) In

the said judgment it has been held

...that as indicated above, the expression ""so made"" has been interpreted to mean the order in accordance with the first part of the proviso. The

expression ""service"" in the first part is interpreted in some of those decisions to mean the service as contemplated in Chapter VI of the Code for

the purpose of Summons cases. In our judgment in Crl.M.C. No. 904 of 1985 we have explained the meaning of the expression ""service occurring

in Section 126 of the Code and have pointed out that strict compliance with the provisions in Chapter VI is not necessary in effecting service in

proceedings under Sections 125 and 126 of the Code. We have held that service by registered post or through Embassy will be sufficient....

The judgment of the Kerala High Court (supra) cannot be considered as a binding precedent for this court. This court in the case Abdul Latif vs.

Mst Arzam Bi (1987 KLJ 279) has held that service through registered post is not a permissible mode of service in the proceedings under Section

488 of Cr.P.C. It was observed:

The proceedings under Sec. 488 Cr.P.C. are judicial proceedings of a criminal court and are governed by the code. There is no provision in

the Code which permits the service of summons by registered post letter on a person proceeded against under section 488 Cr.P.C. Where the

person so proceeded against is in the active service of the State or the Central government, the summons have to be served on him in the manner

provided by Section 72 of the Code and service of the summons on such a person by registered post letter is not permitted by the Code. Where

the law prescribes a particular mode of service to be followed in a particular case, that mode alone and no other mode can be adopted. It is only

after due service if the party does not appear that he can be proceeded with exparte. Under Section 488 (6) Cr.P.C. a mandate has been given to

the courts to the effect that all evidence under Chapter XXXVI of the Code, shall be recorded in presence of the husband or the father, as the

case may be, unless his personal presence has been dispensed with in which case it has to be recorded in the presence of his counsel. Of course, a

magistrate has the jurisdiction to proceed to set the case exparte against the husband or as the case may be, but only on being satisfied that he had

willfully avoided service of summons or had willfully neglected to attend hearing despite service. Where service is not affected on the husband or

the father, as the case may be, in accordance with the mandatory rules of procedure contained in Chapter VI of the Code, the trial magistrate has

no jurisdiction to proceed exparte against the nonappearing party under Section 488 (6) of the Code.

In view of the law laid down by this court in judgment (supra) Abdul Latif vs. Mst Arzam Bi the contention of learned counsel for

respondent/applicants cannot be accepted that service of the petitioner by registered post was valid. The order of learned trial court thus cannot be

sustained. The same is, therefore, set aside. Learned counsel for the respondents shall make appearance of applicant/claimants before the trial

court on 21.4.2006. The record of the trial court shall be sent back alongwith copy of this order. Criminal Reference is accordingly disposed of.