R.V. ARUNACHALA THEVAR Vs. CHINNAMMAL

JUDGEMENT

(1.) ON 6th December, 1969, an ex parte order for maintenance was passed against the petitioner. 1 year and 23 days thereafter, he filed an application under S. 488, CI. 6, of the Criminal Procedure Code, for setting aside this order, averring therein that he became aware of it only then. The court below dismissed his application, stating that it was barred by time since it was presented three months beyond the date of the order. The correctness of this order is now canvassed in this revision.

(2.) THE proviso to Cl. 6 of S. 488, Crl. P.C. states that if the Magistrate is satisfied that the husband or father is wilfully avoiding service or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. It further states that any order so made may be set aside for good cause shown on application made within three months from the date thereof. The petitioner contends that the period prescribed under the proviso to S. 488(d) commences to run, not from the date of the order awarding maintenance, but only from the date of knowledge of the said order. The section clearly states that such applications should be made within three months from the date thereof, and it does not contain any reference to any knowledge of any such order. For the purpose of fixing the period of limitation, if the Legislature is fixing the period in certain matters from the date of the knowledge of any particular order, it specially provides to that effect. There is no such provision in CI. 6 of S. 488, Crl. P.C.

(3.) BUT , an order under S. 488, Cr. P.C. is an order pronounced openly in Court by the Magistrate. The Court acts in public. The Judge gives notice of the pronouncement and does pronounce judgments in open Court. Even a party who is absent has thus an opportunity of knowing the order or about it. Thus, there is constructive communication thereof to the concerned party. Since it is pronounced in Court, the party should be presumed to have knowledge of the pronouncement even on the date when it is pronounced in public. This is the distinction between the order passed by Court and the orders passed by an administrative authority. The latter makes its order and communicates it subsequently in the manner prescribed by law. But, in the case of a court, everything is done in public and the parties should be presumed to have knowledge of the pronouncement on the date when it is made. Therefore, there is no further need for a personal communication to the concerned party.