ABDUL HANEEF Vs. ARRIS FATMA

JUDGEMENT

(1.) THIS is a petition under S. 482 Cr. P. C. challenging the order passed by Addl. Sessions Judge No. 1 Kota upholding the order of Addl. Chief Judicial 'magistrate No. 3 Kota by which he granted maintenance to the non-petitioner, Anis Fatma, in an application under S, 125 Cr. P. C. THIS petition comes in peculiar circumstances where the ex-parte order has been passed against the petitioner. It is not necessary to narrate the facts on merits of the main case as I am not deciding this case on merits. By an ex-parte order, dated ,23. 687-, the trial court awarded maintenance of Rs. 250/- per month for the non-petitioner and an equal amount for her daughters making a total of Rs. 500/- The only point raised in this petition is that the ex parte order should be set aside in the inherent powers of this court and the case be remanded to the trial court for proceeding in accordance with law. The petitioner's grievance is that no service was effected on him and he learnt about the order only from a newspaper cutting and no sooner did he learnt about it, he filed a revision petition on 14. 7. 87 before learned Addl. Sessions Judge No. 1 Kota and the learned Judge did not objectively consider the question of service and dismissed the revision petition. He, therefore, submits that there was no alternative remedy available to him except to invoke the extraordinary jurisdiction of this court. It is submitted on behalf of the petitioner that under the Code of Criminal Procedure a specific procedure for effecting the service is provided and the trial court has not at all complied with the said provisions. It is submitted that the courts below have not at all looked into S. 68 Cr. P. C. and in the absence of the compliance of the same the ex-parte order is no order in the eye of law and deserves to be set aside. Learned counsel for the petitioner has placed reliance on Gurnam Singh Vs. Mt Datto, (1), Parambot Thayumny Balakrishna Menon Vs. Govind Krishnan (2), C. A. George Vs. Chacko Joseph (3), Paholrajrai V. Jethi Bai, (4), Surajbhan Singh V. Smt. Tej Kanwar (5) S. Thulasingam Vs. Padmavathi Animal; (6) and Revappa Vs. Gurusanthawwa (7 ).

(2.) LEARNED counsel for the non-petitioner submitted that no petition under S. 482 Cr. P. C, is maintainable when there was a specific remedy available to the petitioner under the proviso to S. 126 (2) Cr. PC. It is submitted that according to this proviso if the court is satisfied that the petitioner is guilty of wilfully avoiding service or wilfully neglecting to attend the court, the Magistrate may decide the case exparte and his order can only be set aside for good cause, if an application is made within 3 months from the date of order subject to certain terms including the terms of cost against the other party. It is submitted that since no application has been moved within 3 months for setting aside the exparte order this petition should not be entertained. It is then submitted that there is enough evidence in the form of order sheet to show that effective steps have been taken for getting service effected and when the court was satisfied after obtaining a report from the post-office that the registry has been served, then alone the court has proceeded exparte. In this view of the matter it is submitted that it should be considered to be a case of wilfully avoiding service or neglecting to attend the court. LEARNED counsel has placed reliance in support of his arguments on Fatima Sultana Begum Vs. Rang Rao, (8), Chitawan Vs. Mahboob Ilahi (9), Fatumal Dayaram Vs. Rael Samsoon (10), Ram Charev Vs. Baba Ram Priya Das, (11), Mahesh Vs. State (12), Ram Shanker Vs. State (13), Talab Hali Hussain Vs. Madhukar Purshottam (14) and Savitri Vs. Shri Govind Singh Rawat (15 ).

(3.) IN Paramboy Thayumni Balakrishana Menon Vs. Govind Krishan (supra) the Court held that, "there had been no service of the summons in accordance with the provisions of s. 69 of the Code and the court was not justified in proceeding ex-party, passing an order ex-party. The Government servant must have had knowledge of the summons having been received in the office. But it was not enough. The principles laid down for service of summons in civil cases could not be applied to service of summons in criminal courts. IN S. Thulasingam Vs. Padmavathi Ammal (supra) Madras High Court held: - "service by registered post in case of proceedings under S. 488 Cr. P. C. is not a proper service since this mode is not one of the modes mentioned in Chapter VI which relates to service of summons except in the single instance of summons to an incorporated Company. Consequently a person who has been served by registered post cannot be set down ex-party on his failure to appear". IN Paholrajrai Vs. Jethi Bai (supra) it has been held as under: "service of notice has to be effected as contemplated under S. 68 read with Ss. 69 & 70 of the Code before making an ex-party order against the husband under S. 488. Mere publication of the notice in the Government Gazette cannot serve the purpose of notice as understood under S. 68 read with S. 69 unless provision to that effect has been made by the State Govern-ment. For, under the provisions of the said sections not only the summons must issue but it must be served. IN the absence of any express direction by State Government, by a police officer or by an officer of the court issuing it or by any other public servant. IN the absence of the service of summons the ex-party order made under S. 488 is liable to be set aside". On perusal of the aforesaid cases I have no doubt in my mind that while effecting the service even in case under S. 125 Cr. P. C. S. 68 Cr. P C. cannot be ignored. Service has to be effected in the manner provided under S. 62 and the proof of service is to be given under S. 68 Cr. P. C. even if the person is not available even after exercise of due diligence. S. 64 provides that the summons may be served by leaving one of the"duplicates for him with such adult male member of the family residing with him. However, according to the explanation given in the section servant has not been considered to be a member of the family within the meaning of the section. Considering the facts and circumstances of the present case in the light of the cases discussed above it can safely be said that the provision of Ss. 62 and 68 Cr. P. C. have not been followed at all. IN the instant case it is even not known as to whether the notices have been sent through police officer or by process server in civil court. It is also not borne out as to whether they have been sent on the correct address or not became even the duplicates have not been maintained on record. Thus, there is no service in eye of law upon the petitioner of the petition under S. 125 Cr. P. C. at all. So far as sending the same by registered post is concerned that has been considered, to be a proper mode of service in cases of individuals, the same is permissible only in respect of summons of corporation under S. 63 Cr. P. C. Thus, that would not apply. There is yet another aspect of the matter which has been consi-dered by my brother Hon'ble M. B. Sharma J. in Sooraj Bhan vs. Tej Kanwar (supra ). IN this case he has discussed in detail the applicability of Sec. 68 (1) Cr. P. C. and held that unless the affidavit is filed as required under Sec 68 (1) Cr. P. C. it cannot be said that service of summons was in accordance with law and thus there will be no service in accordance with law. He has also considered yet another aspect wherein he has held that without recording that the petitioner against whom an order of maintenance is proposed to be made is wilfully avoid-ing or wilfully neglecting to attend the court, the learned Magistrate lacked inherent jurisdiction to proceed to appear and determine the case ex-party. IN such a case, if an application to set aside exparty order is made, which, as already stated earlier, was not in accordance with law. The period prescribed in the proviso to Sub-Sec. (2) of S. 126 Cr. P. C. for making an application to set aside the exparte order will not apply and this authority is applicable with full force in the facts of the present case also on the point that interference can be done under the inherent powers.