PAHILAJRAI Vs. JETHI BAI

JUDGEMENT

(1.) This is an application in revision against the order of the learned Magistrate who has passed an ex parte order under Section 488 of the Code of Criminal Procedure directing the petitioner to pay a sum of Rs. 300/- a month by way of maintenance to the opposite party.

(2.) The point taken before me is that the fearned Magistrate had no jurisdiction to pass the ex parte order without service of notice as contemplated under Section 68 read with Section 69 of the Code of Criminal Procedure. It transpires that in the Bombay Government Gazette, dated 11-4-1957, the notice of the application and the date of the hearing of the case had been published. This, of course, is no notice as contemplated under Section 68 read with Section 69 of the Code unless it can be shown that the State Government had provided that notice shall be served in this manner. I asked the learned lawyer for the opposite party whether any such provision had been made by the State Government of Bombay, and I was definitely informed that no such provision had been made. It is thus clear that mere publication of the notice in the Bombay Government Gazette cannot serve the purpose of notice as understood under Section 68 read with Section 69 of the Code of Criminal Procedure. It appears, however, that after the case was remanded by this Court, notice, perhaps under Section 68, was issued, for the order of the learned Magistrate dated 26-4-1957 states thus: "No reply is received from Bombay in respect of the S. R. of the notice issued to the O. P." What has to be proved is that not only a notice had been issued but it had been served in accordance with Sections 68 and 69 of the Code of Criminal Procedure. At this stage it would be well to refer to these sections. Section 68 is as follows:

(3.) I referred to Section 70 because it was submitted before me that the petitioner was evading service of summons, in which case it was not possible for the authorities to proceed under Section 70. From the record it does not appear that Section 70 was resorted to. It will be seen, therefore, from what I have stated above, that there has been no service of the summons as required under Section 68 or Section 69 or Section 70 of the Code of Criminal Procedure, and that being so, the ex parte order passed by the learned Magistrate cannot be maintained. The order of the learned Magistrate, therefore directing that the petitioner should pay Rs. 300/- a month by way of maintenance to the opposite party is set aside and the case must go back to the learned Magistrate for a re-hearing of the matter and for disposal in accordance with law. The attention of the learned Magistrate is particularly drawn to Sections 68. 69 and 70 of the Code of Criminal Procedure, and he should satisfy himself that the provisions of those sections, that may apply to the facts of this case, have in fact been complied with or not. If not, he must see to it that they are complied with before he disposes of the matter.