BATUK BANERJEE Vs. LILA BANERJEE AND ANR

JUDGEMENT

(1.) Impugning an order dated 26.10.98 passed by Yasmin Fatma, learned Judicial Magistrate, 1st Class, Raghunathpur in Misc. Case No.1 or 1997, the petitioner has moved this Court invoking section 401 read with section 482 of the Code of Criminal Procedure.

(2.) The factual metrix of the events which culminated into the impugned order were that on 20.4.98 the opposite party No.1 obtained an ex parte order of maintenance under section 125 of the Code of Criminal Procedure against the aforesaid petitioner on 12.11.97 and he was directed to pay a sum of Rs.800/ - for the opposite party No.1 and Rs.500/- for her minor son towards maintenance. According to the petitioner he came to know about the factum of the said ex parte order on 20.4.98 and obtained an information slip on 28.4.98 containing information about the said order. Immediately thereafter on 14.5.98 the petitioner filed an application under sub-section (2) of section 126 of the Code of Criminal Procedure for setting aside the ex parte order dated 12.11.97 supported by an application under section 5 of the Limitation Act which was registered as Misc. Case No.12 of 1998. According to the petitioner he made out a ground of illness.

(3.) Shri Himangshu De, learned lawyer appearing on behalf of the petitioner duly assisted by Arunava Jana has canvassed that the original ex parte order was not passed in accordance with law as the petitioner did not receive any notice with regard to initiation of the parent proceeding nor was there any material that he was wilfully avoiding service and further the learned Magistrate erred in law in rejecting the petition under sub - section (2) of section 126 of the Code of Criminal Procedure as it was filed beyond a period of six months.