PREM NATH Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS is a petition under section 482 of the Code of Criminal Procedure. The facts giving rise to if are these.

(2.) THE petitioner Prem Nath in the year 1973 was faced with a claim of maintenance under section 125, Cr.P.C. at the instance of Kaushalya Devi respondent No. 1. Besides claiming maintenance for herself. She claimed maintenance for her minor daughter Kumari Surita Rani. The judgement of Shri N.S. Rao, Sessions Judge, Ambala, rendered in Criminal Revision No. 75 of 1975, now placed on record, reveals that Kaushalya Devi respondent based such claim on the premises that earlier in 1948 she stood married with one Banarsi Dass who died leaving her as widow with three children and that later she had married the petitioner from whose loins she had given birth to Surita Rani. The Chief Judicial Magistrate, Ambala, negatived her prayer partially vide his order dated 7.11.1975. He held that it was not proved that marriage between Kaushalya Devi and Prem Nath had taken place. However, he come to the view that they had otherwise cohabited with each other and Sunita Rani was their offspring. He thus granted Surita Rani maintenance as an illegitimate child of the connection. Revision petition filed by Prem Nath petitioner was accepted on 15.3.1977, order whereof has been referred to earlier. The learned Sessions Judge took the view that it was not proved that Kumarai Surita Rani was born from the loins of Prem Nath. The claim of Kaushalya Devi in those proceedings was supported by respondent 2 to 4 who were said to have helped Kaushalya Devi to deliver the child Surita Rani and the claim was negatived by the learned Sessions Judge because Prem Nath could successfully prove that on or about the date of the alleged birth of Surita Rani, he was from 17.9.1970 to 6.4.1971 confined as under trial in Central Jail, Ambala, and the claim of the witnesses (respondent 2 to 4) that he was present at the time of the birth of Surita Rani was totally false.

(3.) TO take the cue back, Shri Garg had vide order dated 14.12.1977 ordered the accused to be summoned for the afore referred offences in his arriving at a considered view that prima facie case has been made against them. That was the glaring error committed by him for there was no complaint before him and hence there was no accused before him to be summoned. The error seems to have been pointed out to his successor Shri B.R. Gupta during the course of arguments and he as is plain from the record, adopted the device of letting the petitioner own the blame and recorded his statement to that effect. The error was that of the Court and not of the petitioner in any event. He then passed the following order on 3.2.1979:-