Mohammed Altaf Shah vs Mahmooda

This revision has been filed by the petitioner against the order dated 11121993 passed by learned revisional Court of Sessions Judge, pulwama,

where under learned Sessions Judge has rejected the revision petition of the petitioner filed against the order purported to have been passed by

Chief Judicial Magistrate, Shopian on 431993.

The facts in brief which have given rise to the present case are that the parties are related to each other as husband and wife. The person of the

respondent herein came to be married with the petitioner and just after three and a half years of marriage, the relationship between the parties

became strained, which constrained the respondent herein to file a claim for maintenance under Section 488 Cr.P.C. before the learned Chief

Judicial Magistrate, Shopian on 23121992. It is alleged by the petitioner that no notice was served to him and no summon has ever been received

by him from the Court of learned CJM Shopian in the proceedings under section 488 Cr.P.C.

On the other hand, record summoned from the Court below reveals that registered notice has been issued to the petitioner herein who is alleged

to be working and serving in Jammu and Kashmir Armed Police, 9th Bn. The notice was issued on 28121992 and on this registered notice, the

Court had proceeded against the petitioner in exparte and after recording evidence passed the order, on 431993 where under application for

maintenance was allowed and the applicant/respondent herein was granted monthly maintenance of Rs. 250/ from the date of institution of the

application.

Against this order dated 431993, a revision petition seems to have been filed before learned Sessions Judge, pulwama which came to be

disposed of on a preliminary objection of limitation by learned Sessions judge by holding that the revision has been filed by petitioner beyond the

stipulated period and the condonation sought by the petitioner has not been allowed on the count that the provisions of Section 488 Cr.P.C, are

self contained. It contains the procedure for setting aside an order passed in exparte for a good cause to be shown on an application to be made to

the learned Magistrate within three months from the date thereof and in light of proviso (2) of Section 29 of the Limitation Act as applicable to the

proceedings, the learned Sessions Judge has observed that under the provisions of subclause (2) of Section 29 of the Limitation Act, it is a special

law which will govern the

proceedings rather than the limitation Act. So the condonation of delay sought by the petitioner before learned Sessions Judge has been

accordingly disallowed, as because the provisions of subsection (2) of Section 29 of the Limitation Act reads:

Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed therefor by

the 1st. Schedule, the provisions of Section 3 shall apply, as far as the period was prescribed therefor in that Schedule, and for the purpose of

determining any period of limitation prescribed for any suit, appeal or application by any special or local law.

So in light of the above, provisions of Section 488 Cr.P.C, are self contained procedure and in case any exparte order seems to have been

passed by the learned Magistrate in exparte against the petitioner, the petitioner was setting his lawful means and entitled to ask for setting aside of

these proceedings by approaching the concerned Court and should have made an application as envisaged under subclause (6) of Section 488 Cr.

P.C. proviso thereto which reads:

Provided that if the Magistrate is satisfied that he is willfully avoiding service or willfully neglects to attend the Court, the Magistrate may proceed

to hear and determine the case in exparte. Any orders made, may be set aside for good cause shown on an application made within three months

from the date thereon

So in light of these provisions, learned Sessions Judge had disallowed the application moved under Section 5 of the Limitation Act and as such,

dismissed the revision petition as being barred by time.

Heard learned counsel for the parties at length and also perused the records.

The questions which require determination and adjudication in these proceedings are:

i) Whether revision will lye against a revision when the Court of learned Sessions Judge and the High Court had concurrent jurisdiction of revision

regarding orders passed by the Judicial Magistrate? ii/ Whether the order if examined in the context of the revisional jurisdiction impugned before

learned Sessions Judge was in any way illegal, irregular which call for an interference by the Sessions Judge and as such despite the fact that a self

contained procedure is contained in the provisions of Section 488 Cr.P.C., can a revisional Court look to the illegalities and irregularities of the

procedure which has resulted in miscarriage of Justice or prejudice to the person complaining against?

As regards first question, it is an admitted fact that the Court of Sessions and the High Court has concurrent jurisdiction under Section 435

Cr.P.C, which reads:

Power to call for records of inferior Courts1) The High Court or any Sessions Judge or Chief Judicial Magistrate may call for and examine

the record of any proceedings before any inferior Criminal Court situate within the local limits of its or his jurisdiction for the purpose of satisfying

itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any

proceedings of such inferior Court and may, when calling for such record, direct that the execution of any such sentence or order be suspended

and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

So the revisional jurisdiction of the High Court and the Session Judge are concurrent. However, the High Court under provisions of Section

439 Cr.P. C, has the powers of revision in the case of any proceedings, the records of which has been called for by itself or which has been

reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a

Court of appeal by Sections 423,426 427 and 428 or on a Court by Section 338, and may enhance the sentence, and, when the Judges

composing the Courts of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 429.

So before me, two questions are posed; a) Whether the order passed by learned Sessions Judge can be challenged by a revision before this

Court? [SIC]

Ordinarily orders passed by the Court 01 Sessions are revisable by this Court, but when the Court of Sessions is passing the orders in the

capacity of a revisional Court, no second revision will lye against such orders. But when the Court is examining the records and the records have

otherwise been produced for perusal, the illegality or irregularity of the procedure committed by the subordinate criminal Court can be set at right,

because the words envisaged under Section 439 Cr.P.C, are more comprehensive which reads ""in the case of any proceedings"" i.e proceedings

pending before the Court of Session or subordinate Judicial Magistrate, the record of which has been called for by itself or which has been

reported for orders or which otherwise comes to its knowledge, the High Court has been empowered to exercise any of its power. So the powers

given to High Court are wider. High Court has the powers to condone the delay so as to enable it to exercise the revisional jurisdiction, which

power can be exercised somotu also.

The revisional powers of the High Court is a sort of special jurisdiction similar to the inherent jurisdiction of the Court and as the power of

revision is the power of the Court and not of litigant, the strict rules of limitation need not to apply. It is for the High Court to decide as to whether

to exercise a revisional jurisdiction or not. This revisional power is discretionary and unfettered by the Limitation Act, but is subject to certain riders

which have been enacted, where under while exercising such powers conferred on the Court as a Court of appeal under the relevant provision of

appeal, but the Court is not making any orders which are prejudicial or against the accused. For example in exercise of revisional jurisdiction, the

High Court shafl not while invoking its inherent jurisdiction enhance the punishment of an accused unless notice is not given to him or will not

change an acquittal into conviction unless notice has not been given to him. That means that no order can be made to the prejudice of the accused

unless he had not been given an opportunity of being heard either personally or by pleader in his own defense.

In the above backdrop, I have to look to the basic order passed by trial Magistrate, i. e, CJM Shopian who was hearing the application under

Section 488 Cr.P.C. The proceedings under Section 488 Cr.P.C, are quasijudicial quasi civil. It is a self contained Section. It provides a

procedure as to how if a person having sufficient means who neglects or refuse to maintain his wife or legitimate or illegitimate child unable to

maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class, may upon proof of such neglect or refusal, order such

person to make a monthly allowance for the maintenance of his wife or such child at such rate, not exceeding five hundred rupees in the whole, as

such Magistrate thinks fit.

It is also provided that all evidence under this chapter shall be taken in the presence of the husband or father, as the case may be, or when his

personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons.

So when a person who neglects his wife or the legitimate or illegitimate child having sufficient means to maintain them, is being complained of

by the claimants, a notice has to go to the person of nonapplicant asking him to, show cause why order for maintenance should not be made

against him and requiring him to attend the Court in person or through pleader and to show cause why order for such maintenance should not be

passed and in case the person after such due notice does not choose to appear, order shall follow after recording evidence which would satisfy the

Magistrate to make such an order and before proceeding exparte against such delinquent person, it is incumbent on the Magistrate that he has to

record his finding that the Magistrate is satisfied that the person of the delinquent person who is called upon to maintain his wife or children, as the

case may be, is wilfully avoiding service or neglects to attend the Court, the Magistrate may proceed to hear and determine the case in exparte. So

the Magistrate has to record his satisfaction before proceeding in exparte against the delinquent person as is envisaged under proviso to subsection

(6) of Section 488 Cr.P.C.

The procedure for issuing of notices and summons under the code of Criminal procedure has not been followed by the learned Chief Judicial

Magistrate, Shopian (Mr. Mohammad Iqbal). The learned Magistrate has ignored the procedure as laid down under Chapter VI regarding service

of summons and the procedure envisaged under Chapter XXXVI subsection 6 of Section 488 Cr.P.C. It seems that the learned Magistrate was

more anxious to dispose of the case expeditiously. However, the anxiety of the Court to dispose of the case expeditiously cannot be justified by

violating the mandatory rules of procedure and Justice cannot be sacrificed at the alter of expeditioncy. The Courts cannot cut short the procedure

prescribed by law to the prejudice of any of the parties as observed by his lordship Hon'ble Dr. Justice A.S. Anand in one of the Judgments.

The procedure or summoning/service is provided under Section 68,69,70 and 71 of the code of Cr.P.C, which reads:

Form of summons: (1) Every summons issued by a Court under this code shall be in writing, in duplicate, signed and sealed by the presiding

officer of such Court, or by such other officer as the High Court may, from time to time, by rule, direct.

2) Summons by whom served; Such summons shall be served by a police officer, or subject to such rules as the High Court may prescribe in this

behalf, by an officer of the Court issuing it or other public servant.

Summons how served: (!) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him

one of the duplicates of the summons.

2) Signature of receipt for summons: Every person on whom a summons is so served, shall, if so required by the serving officer, sign a receipt

therefor on the back of the other duplicate.

3) Service of a summons on an incorporated company or other body corporate may be effected by serving it on the secretary, local manager or

other principal officer of the corporation or by registered post letter addressed to the Chief officer of the corporation in Jammu and Kashmir State.

In such case the service shall be deemed to have been affected when the letter would arrive in ordinary course of post.

Service when person summoned can not be foundWhen the person summoned cannot by the exercise of due diligence be found, the summons

may be served by leaving one of the duplicates for him with some adult male member of his family and person with whom the summons is so left

shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate.

Procedure when service cannot be effected as before provided: If service in the manner mentioned in Sections 69 and 70 cannot by the

exercise of due diligence be effected, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or

homestead in which the person summoned ordinarily resides; and thereupon the summons shall be deemed to have been duly served.

Service on servant of CentralorState Government: (1) Where the person summoned is in the active service of the Central or State

Government, the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and

such head shall thereupon cause the summons to be served in manner provided by Section 69, and shall return it to the Court under his signature

with the endorsement required by that Section.

A conjoint reading of the aforesaid provisions show that summons are required to be served in the manner prescribed in the said Sections and

wherever practicable, the summons are required to be served personally on the person to be summoned. It is only when such a person cannot, by

the exercise of due diligence be found that the summons can be served on an adult member of his family. However, where service cannot be

affected personally, then as provided, a duplicate of the summons should be affixed on a conspicuous place of the house or homestead in which the

person summoned ordinarily resides. Service by registered post letter is only contemplated by Section 69(3) of the code and is permissible when

summon has to be served on an incorporated company or other body corporate. In that event it is provided that summons may be served on the

secretary, local manager or other principal officer of the corporation by a registered post letter addressed to the Chief Officer located within the

State. Service of summons by registered post in case pending before the criminal Courts, except where the case is covered by Section 69{3) of

the code is not contemplated. Where service is required to be affected on a person who is in the active service of the Central or the State

Government, the Court issuing the summons is, vide Section 72 (supra), ordinarily required to send it in duplicate to the head of the office in which

the person is employed and it has been made obligatory on the head of the department by virtue of Section 71{1) of the Code, that he shall

thereupon cause the summons to be served, in the manner provided by Section 69 of the code (supra) and return to the Court under his signatures,

with the enresement as prescribed by that Section and on that procedure being followed, that signatures shall be the evidence of due service.

It may be noted that while recommending amendment of Section 71 of Code of Criminal Procedure, Law Commission in its 41st report in

para 6.5 has recommended that the Section 71 of the code of Criminal procedure should be amended to bring it into line with the corresponding

provisions in the code of Civil procedure, for the words ""and thereupon the summons shall be deemed to have duly served"" these should be

substituted by the following words:

And the Court after making such enquiries as it thinks fit, may either declare that the summon had been duly served or order fresh service in such

manner as it considers proper.

Though the corresponding Section namely Section 65 of the code of Criminal procedure, 1973 as amended uptodate of the Country which is

applicable to whole of India except the State of Jammu and Kashmir has been suitably amended as per recommendations of the Law Commission

and the corresponding Section 71 of the said Criminal procedure code continues to the same as before and is to be followed in the State.

The provisions of issuing substituted service by restoring to publication in newspapers, as is being done in the Civil procedure code under

order 5 Rule 20 of Civil procedure code is unknown to Criminal Procedure Code. The substituted service by postal/registered post or ordinary

post of delivery of summons as is known to Civil procedure code under proviso to Rule 10 of order 5 Civil P. C, is also unknown to Criminal

Procedure Code except for summoning of corporate bodies as is provided under subsection (3) of Section 69 and also as envisaged under

Section 74(A) of Criminal procedure code for summoning of witness by registered post and even the rules purported to have been Issued by the

High Court under the code of Criminal Procedure for the guidance of subordinate Courts do not suggest issuance of notice/summons under

Criminal Procedure Code through registered post Acknowledgement Due or ordinary post. So the only mode/ method as observed hereinabove,

for issuance of process of summons/notices under Criminal Procedure Code is one prescribed under the above referred provision of the Code and

are to be served by a Police officer or by an officer or by an officer of the court/process serving agency/the Public Servant and not by substituted

service viz, by registered post/postal service/ publication .The provisions of Section 74(A) of the Criminal Procedure Code as amended do not

envisage and lays down that the service upon the accused or opposite party can also be effected by registered post.

Maintenance proceedings, as I have observed, are quasi civil/quasi Judicial in nature, though the relief given is essentially civil in naturebut

procedure to be followed is one laid down in the Criminal Procedure Code under the relevant provisions of Section 488 and the recovery is to be

effected under Section 386 of Criminal Procedure Code and other provisions of Civil Procedure Code, as shall be deemed to be applicable under

subsection (3) of Section 386 of Criminal Procedure Code where under warrant for recovery of maintenance allowance found in arrears under the

maintenance proceedings is to be issued. Thus no other provision of Civil Procedure Code as envisaged/hereinabove is applicable to the

proceedings under Section 488 Cr.P.C.

So the procedure of summon cases applicable to the proceedings under Section 488 Cr.P.C, is right from the summoning of the

respondent/opposite party, but in the present case, the proceedings have been initiated on 23121992 and the case had come up on 2711993

when it was adjourned for 324993 i.e, after a week and it is on the said date that the trial Magistrate had recorded the order that the nonapplicant

was summoned through registered post, when there is no direction to that effect in the initial order that the nonapplicant be summoned through

registered post. There is also nothing on record to show that the summons were also sent through proceess serving agency or other means of

service were initiated as is provided under the relevant provisions applicable to the proceedings, as referred to hereinabove.

In the case in hand, I find that the service is/alleged to have been made/effected on the petitioner herein by registered post, though unwarranted

by procedure, shows that the registered letter has been addressed to ""Commandant Armed police, 9th Bn, Srinagar"". The notices/summons does

not seem to have addressed to nonapplicant by name and care of Commandant Armed police. So even if it is assumed that the register letter was

addressed to the nonapplicant, which is belied by the records, but it is no service in the eye of law as is envisaged by the procedure and there was

no justification, legal or moral to have proceeded exparte against the nonapplicant/petitioner herein on such presumed service and conjectures, and

summaries. So the action and the order passed by learned Magistrate on 321993 to set the case in exparte against the nonapplicant/petitioner

herein was without jurisdiction. So on this ground, the order passed by the learned Magistrate being without jurisdiction and the subsequent

proceedings taken by the learned Magistrate are also without jurisdiction and deserve to be set aside.

As observed above and at the cost of repetition, it may again be brought on record that the orders passed by the learned CJM shopian in

proceeding exparte against the nonapplicant/petitioner herein is not justifiable and In fact in an order without jurisdiction. The order passed in

exparte and the proceedings taken and recorded subsequent thereto in exparte against the nonapplicant/petitioner before me arc not tenable under

law and this Court in exercise of its revisional jurisdiction do call for an interference in the said order of issuing of notice by registered post or

passing of exparte orders or initiating exparte proceedings is not having any sanction of law.

Nodoubt the person of the petitioner had the right to agitate the matter before the concerned Magistrate within a period of three months, but as

ill luck would have it, he does not seem to have any knowledge of these proceedings and he got the knowledge of these proceedings as per

averments made in the application seeking condonation of delay moved on 2971993 i.e, 7/8 days before. So he had no knowledge till then about

the order of maintenance passed in exparte against him. The petitioner complains that the order has been passed which has prejudiced him and has

not been passed after due appreciation of law and the facts on point and such wants indulgence of this Court in exercise of revisional jurisdiction.

As I have stated herein above that revision against revision will not lye, but the basic illegality/irregularity which has been committed by the trial

Magistrate while passing the order in exparte/proceeding exparte against thepetitioner isnot justifiable legally. Theorder of exparte would have been

more cogent, had the modes of summoning the nonapplicant/petitioner before me been followed by the learned Chief Judicial Magistrate, shopian

strictly in accordance with the procedure referred to hereinabove and as codified by the code of Criminal procedure of the State. So the

irregularity/illegality in the procedure cannot be overlooked by theHigh Court on mere technicalities of limitation and procedural wrangs. Thus the

order of dismissal of revision on the sole count of limitation made by learned sessions Judge by not looking into the irregularities and illegality of the

procedure is not correct appreciation of the revisional jurisdiction vested in him.

The learned Sessions Judge also do not appear to have applied his mind to the material aspects of the case and consequently, the Judgment on

legal connotation passed by learned Sessions Judge, Pulwama, cannot be sustained, though the order passed may appear to be, sound, but for the

lack of inherent jurisdiction of the learned Chief Judicial Magistrate shopian, the subsequent proceedings and findings arrived at cannot to be

sustain in the legal connotations and as such are also to be set aside.

For the foregoing reasons and discussions. I accept and allow this revision petition and while exercising the revisional jurisdiction vested in this

Court, do hereby set aside the order dated 321993 and quash all other subsequent proceedings taken in the matter, be it the order of passing of

maintenance inexparte on 431993 or the order passed by learned Sessions Judge, pulwama on 11121993 in the revision petition. The case is

remanded/ back to the trial Magistrate (Chief Judicial Magistrate, Shopian) for proceeding afresh in accordance with law and pending disposal of

the petition under Section 488 Cr.P.C, the trial Magistrate may pass orders regarding interim maintenance in favor of the respondent before me as

and when application in this behalf will be made by her and shall expedite the proceedings by posting the case weekly. The parties are directed to

appear before the trial Court on July 17,1995. Therecord of the case is directed to be sent to the trial Court without delay.