NAND LAL MISRA Vs. KANHAIYA LAL MISRA

JUDGEMENT

(1.) , J. : This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under S. 438 of the Code of Criminal Procedure.

(2.) THE appellant is a minor and lives under the guardianship of his mother, Smt. Gita Basu. On 14/09/1955, the appellant, through his mother, filed an application under S. 488 of the Code of Criminal Procedure (hereinafter referred to as the Code) in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, Advocate-General, Uttar Pradesh, Allahabad, for maintenance alleging that he is his putative father. Without giving notice to the respondent, the Magistrate posted the petition for evidence on 20/09/1955. On that date, the appellant's guardian was examined and she was also cross-examined by the Magistrate at some length. After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under S. 202 of the Code and, for that purpose, he adjourned the petition for hearing to 26/09/1955, on which date on police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness. On 27/09/1955, the appellant filed a petition before the Magistrate stating that S. 200 of the Code had no application and that no enquiry need be made before issuing notice to the respondent. If, however, the Court treated the application as a complaint, the applicant asked for time to adduce further evidence in support of the application for maintenance. On that petition the learned Magistrate made the endorsement "lead the further evidence, please, if you like". On 6/10/1955, the guardian of the appellant examined one more witness. On that date, the learned Magistrate made in the proceeding sheet the endorsement "no further evidence to be led at this stage."

(3.) THE learned Solicitor-General, appearing for the respondent, supported the procedure adopted by the Magistrate and also the finding arrived at by him. He further contended that the appellant in the High Court as well as before the Magistrate conceded that the Magistrate had power to make a preliminary enquiry and that, therefore, he should not be allowed to question, the validity of the enquiry for the first time before this Court.