GURANDITTA Vs. SITAN DEVI

JUDGEMENT

(1.) PROCEEDINGS under section 488 Cr. P. C. were instituted by the respondent against the petitioner. During the pendency of the proceedings, the trial court on 23. 7. 1985, directed exparte proceedings to be taken against the petitioner (non -applicant in the proceedings). On 9th of August, 1985, the petitioner presented an application to the trial court seeking the setting aside of the order directing exparte proceedings against him. The application after a couple of adjournments came up for hearing when on 16. 12. 1985, it was dismissed in default of appearance of the petitioner. The petitioner, on 24. 1. 1986, filed another application seeking restoration of the application which had been dismissed in default on 16. 12.1985. That application was dismissed by the trial Magistrate on the ground that the Code of Criminal Procedure did not permit such an application. A revision petition was preferred before Sessions Judge. Jammu, who vide a detailed order has made a recommendation to this court to set aside the order of the trial court dismissing the application.

(2.) SECTION 488 (6) Cr. P. C. provides that evidence in the proceedings under section 488 Cr. P. C. should normally be taken in the presence of the husband or the father, as the case may be, and it is only if the Magistrate is satisfied that the husband or the father as the case may be, was willfully avoiding or willfully neglecting to attend the court, that he may proceed to hear and determine the case exparte. By virtue of the proviso to sub - section (6) of section 488 Cr. P. C. an order made for hearing and determining the case exparte can be set aside by the trial court on an application made in that behalf after good cause is shown for setting aside the exparte proceedings. The provision of section 488 Cr. P.C. (6) therefore, show that the normal rule is to record the proceedings in the presence of the husband or the father. Taking exparte proceedings against the husband or the father is an exception. The scope of the provisions of section 488 (6) Cr. P. C, it appears, was not present to the mind of the trial Magistrate when he dismissed the application on 29th of May, 1986. The learned Magistrate has taken a narrow technical view of the matter Of course, Section 488 Cr. P, C. does not in terms provide that an application for setting aside, exparte proceedings can be restored after it has been dismissed in default of appearance, but the courts have to do justice between the parties and to so utilise and interpret the procedural law as to advance the cause of justice. The trial court while rejecting the application observed : -

(3.) TO say the least, this approach of the trial court was not proper. If a fresh application could be entertained one fails to understand as to what prevented the Magistrate from treating the application seeking restoration of the earlier application dismissed in default as the fresh application itself seeking the setting aside of the exparte proceedings. By directing the petitioner to file second application for setting aside exparte proceedings, the trial court got hinged by narrow technicallities and the cause of justice was over -looked. The effort of the trial court should have been to avoid prolongation of the case as also of the multiplicity of the proceedings. The revisional power of the High Court are contained in Sections 435 to 439 Cr. P. C. They empower the High court in certain cases, the Sessions Judge as also the Chief Judical Magistrate to call for and examine the record of any proceedings before any inferior court situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the "correctness, legality or propriety of any finding, sentence or order recorded or passed", as well as to examine the regularity of the proceedings of such inferior courts. The legislature inserted section 561 -B Cr. P C. in the Code of Criminal Procedure by the Amendment Act of 1978. This Section provides that the High court shall so exercise its superintendence over the courts of judicial Magistrates subordinate to it as to "ensure that there is an expeditious and proper disposal" of cases by such Magistrates. The powers under section 561 -B Cr. P. C. have extended the scope of the revisional jurisdiction of the High court. The emphasis has been laid in Sec. 561 -B Cr. P. C. for the High court to ensure that the courts of judicial Magistrates subordinate to the High court dispose of the cases pending before them (a) expeditiously and (o) properly.