Himansu Bhusan Sekhar Sahoo vs Smt. Satyabhama Nayak

Pradip Mohanty, J.—In this revision, the Petitioner challenges the Order Dated 06.04.2006 passed by the S.D.J.M., Angul u/s 126(2) Code of Criminal Procedure in C.T. Case No. 1769 of 2003.

Brief facts of the case are that the Opposite Party filed a petition u/s 125 Code of Criminal Procedure before the S.D.J.M., Angul claiming maintenance of Rs. 5000/-per month. On 20.02.2004 an ex parte order was passed granting maintenance of Rs. 2000/- per month. Against that order, the Petitioner preferred CRLREV No. 701 of 2005 before this Court. A Bench of this Court, by Order Dated 08.02.2006 while disposing of the said revision directed the Petitioner to file an application u/s 126(2) Code of Criminal Procedure with the observation that the matter shall be considered as expeditiously as possible. Pursuant to the said order, the Petitioner filed a petition before the S.D.J.M., Angul u/s 126 (2) Code of Criminal Procedure The S.D.J.M. after considering the said petition by Order Dated 06.04.2006 rejected the same with the finding that the Petitioner tore the notice by taking the same from the Process Server and after going through the contents of the notice. Thereby, he willfully avoided the service of notice and willfully neglected to attend the Court.

Counsel for the Petitioner submitted that without considering the provisions of different Sections of Code of Criminal Procedure with regard to service of notice, the Learned Magistrate has illegally rejected the application. He further submitted that without giving any opportunity to the present Petitioner to substantiate his case regarding non-service of the notice and without application of judicial mind, the ex parte order was passed basing upon the report of the Process Server, which is completely illegal.

(Sic) Mr. Nayak, the brother of the Opposite Party, who appeared as first friend of the Opposite Party, submitted that no illegality has been committed by the S.D.J.M. in rejecting the application u/s 126(2) Code of Criminal Procedure inasmuch as the Petitioner avoided the summons, snatched away the summons and tore it into two pieces, for which a criminal case was instituted at Parjang P.S. and final form has been submitted against the Petitioner and his father under Sections 341/353/294/427/506/34 Indian Penal Code.

From the order of the Magistrate it appears that the petition u/s 125 Code of Criminal Procedure was filed on 15.09.2003. On 30.10.2003 summons was directed to be issued fixing 28.11.2003 for S.R. On the same day, a petition was also filed to deposit the special cost for service of the summons and the said prayer was allowed. On 28.11.2003 S.R. was not back. On 23.12.2003 the S.R. was also not back. The Order Dated 22.01.2004 reveals that the Opposite Party who is the present Petitioner, was absent on repeated calls. S.R. against him was back with a report that he refused to accept the notice. The service was treated as sufficient and he was set ex parte. Thereafter, on 24.05.2006 the S.D.J.M. allowed the prayer of the Opposite Party with a direction to pay Rs. 2000 / - as maintenance. Against that order, the Petitioner preferred the earlier revision before this Court. Thereafter, this Hon''ble Court directed to file a petition 126(2) Code of Criminal Procedure and the same was disposed of with a direction to file a petition before the S.D.J.M. u/s 126(2) Code of Criminal Procedure which was rejected by the S.D.J.M. on 06.04.2006. The proviso to Sub-section (2) of Section 126 of the Code authorizes a Magistrate to proceed to hear and determine the case ex parte if he is satisfied that the person against whom an order of payment of maintenance is proposed to be made is willfully avoiding the service or willfully neglecting to attend the Court. In the impugned order, he has not recorded such finding and he has not considered the provisions with regard to compliance of Chapter-V of the Code of Criminal Procedure Since the Petitioner is residing at a place outside the jurisdiction of the S.D.J.M., Angul, the Magistrate is to take recourse to the provisions Sections 67 and 68 of Code of Criminal Procedure ready reference, Sections 67 and 68 Code of Criminal Procedure are quoted below:

Service of summons outside local limits.-When a Court desires that a summons issued by it shall be served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within whose local jurisdiction the person summoned resides, or is, to be there served.

Proof of service in such cases and when serving officer not present.-

(1) When a summons issued by a Court is served outside its local jurisdiction, and in any case where the officer who has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the manner provided by Section 62 or Section 64) by the person to whom it was delivered or tendered or with whom it was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and until the contrary is proved.

(2) The affidavit mentioned in this Section may be attached to the duplicate of the summons and returned to the Court.

In the impugned order, nothing has been mentioned about the compliance of Sections 67 and 68 of Code of Criminal Procedure, since the Petitioner is residing at Pangatira under Parjang P.S., which is outside the jurisdiction of the S.D.J.M., Angul. The Process Server also in his report stated that the Petitioner refused to accept the same, assaulted the Process Server and tore the summons. He also stated that notice was not served upon the Petitioner and that is why he returned the process. In the said notice, endorsements of the witnesses are not there. From a plain reading of the provisions of the above Sections, it is crystal clear that when summons are issued to outside the local jurisdiction, it shall ordinarily be sent in duplicate to a Magistrate within whose local jurisdiction the person summoned resides; and when an officer who has served the summons is not present at the time of hearing of the case, an affidavit purported to be made before a Magistrate that such summons has been served shall be admissible in evidence; and the affidavit may be attached to the duplicate of the summons when returned to the Court. But in the impugned order, nothing has been mentioned with regard to compliance of the above provisions. Only on surmises it has been mentioned that the Petitioner willfully avoided the service and willfully neglected to attend the Court. As such, the impugned order cannot be sustained in law.

In view of the aforesaid, the impugned order under Annexure-4 is set aside and the matter is remitted back to the Court below for fresh disposal after giving opportunity of hearing to both the parties in the light of the observations made by this Court. The entire exercise shall be completed within a period of three months from the date of receipt of this order.

Revision disposed of