BALAKA BABURAO Vs. BALAKA RAMANAMMA

JUDGEMENT

(1.) The question referred to us for an authoritative pronouncement is whether the service of notice has to be effected only in accordance with the procedure under Chapter VI of the Code of Criminal Procedure for the purpose of passing an ex parte order under the proviso to sub-section (2) of Section 126 of the Code; if so, whether the ex parte order passed under the said proviso on the basis of service by registered post or by any other mode was liable to be set aside.

(2.) The facts and circumstances giving rise to this Reference in brief are : Respondent No. 1 is the wife and respondents 2 and 3 are minor children of the revision petitioner who is working as a Constable in R.P.F. (Corp. No. 3409) at Jagdalpur, Madhya Pradesh. The respondents filed a petition under Section 125 of the Code of Criminal Procedure seeking maintenance as MC. No. 1/1990 on the file of Judicial First Class Magistrate, Palasa. It was dismissed on the ground that the parties entered into a compromise. The respondents thereafter filed another petitioner for the same relief as MC. No. 13/1992 and they alleged that the revision petitioner falsely represented that he would maintain them and got the earlier petition dismissed, but in fact he failed to maintain them. Notice of MC. No. 13/1992 was sent to the revision petitioner through police and also by registered post acknowledgement due. The revision petitioner refused to receive the registered post notice and hence the postal authorities endorsed refusal on the postal cover. The revision petitioner was thus set ex parte and an ex parte order under Section 125 of the Code of Criminal procedure has been passed on 21-5-1993. The revision petitioner filed a copy application on 31-7-1993 seeking certified copy of the above order. His case is that he came to know about the ex parte order in the last week of July, 1993 when he visited his native village to attend to his sickly parents and that he was furnished with the certified copy of the order on 19-8-1993 and immediately thereafter he filed a petition for setting aside the ex parte order. He asserted that he never refused to receive any summons or notice when tendered for service by the police or postal authorities; that the mode of service through registered post is not contemplated by the Code of Criminal Procedure and hence the service is not valid in the eye of law. The petition was resisted by respondents 1 to 3 on the ground that it is barred by limitation. The learned Judicial First Class Magistrate, Palasa, considered the rival contentions and held that the petition is barred by limitation as the same is filed beyond 3 months period which is prescribed by the proviso to sub-section (2) to Section 126 of the Code of Criminal Procedure. He further held that the refusal of notice sent by registered post amounts to service of notice. Aggrieved by the above order refusing to set aside the ex parte order, this revision petition is filed by the respondent in MC. No. 13/1992. It came up for hearing before our learned brother V. Raja Gopala Reddy, J., and the following two grounds have been canvassed by the learned counsel for the revision petitioner. 1. that the service of notice by way of registered post in MC. No. 13/1992 on the petitioner was not in accordance with law; 2. that the petition to set aside the ex parte order was within 3 months from the date of knowledge.

(3.) In support of the first contention, a decision of this Court in G. S. H. Prasada Rao v. Lakshmi Rajyam, 1991 (2) ALT 658 has been cited. On behalf of the respondents it is contended that the proceedings under Chapter VI of the Code of the Criminal Procedure are not criminal in nature and hence service by registered post is permissible and a Full Bench decision of Kerala High Court reported in Balan Nair v. Bhavani Amma, AIR 1987 Kerala 110 : 1987 Cri LJ 399 was relied upon. Our learned brother considered the rival contentions in extenso and expressed the view that the proceedings under Chapter VI of the Code are civil proceeding and accordingly he differed with the ration laid down in the judgment cited supra and fell inclined to accept the ratio laid down by the Full Bench cited supra. He, therefore, sought for a reference of this question to a Division Bench for an authoritative pronouncement.