Maqsood Ahmad v. Musammat Arifa Khatoon — 1981 DIGILAW 692 (ALL)

ORDER M.M. Husain, J. - This petition under S. 482, Cr. P. C. has been filed for quashing different orders passed by the Judicial Magistrate I Sultanpur in a case under S. 125, Cr. P. C. and also the order dated 7-8-1980 passed by the Sessions Judge, Sultanpur in criminal revision No. 56 of 1980 which arose out of those proceedings. There is also a prayer for quashing some orders passed by the Magistrate concerned, for enforcing the final order passed by him in the case under S. 125, Cr. P. C. 2. Briefly stated the facts of the case giving rise to this petition are that Smt. Arifa Khatoon Opposite Party No. 1 moved an application which has been made an annexure to the supplementary affidavit filed by the petitioner in this Court today. This application was moved on 24-2-1976 and Smt. Arifa Khatoon had claimed maintenance at the rate of Rs. 200/- per Mensum from Maqsood Ahmad the petitioner for her own maintenance as well as for the maintenance of her daughter. Nobody turned up on behalf of the opposite party in spite of service of notice and revision of the list. The uncontroverted allegations made in the affidavit filed by the petitioner have therefore to be accepted on their face value. It is clear from these facts that the notice of the application under S. 125, Cr. P. C. was not issued to the petitioner in accordance with the provisions contained in S. 62 and onwards of the Cr. P. C. On the other hand, the said notice was sent by registered post and when the postal endorsement of refusal was received by the learned Magistrate he decided the application under S. 125, Cr. P. C. ex parte and passed an order on 5-2-1977 awarding Rs. 50/- per mensem as maintenance to Arifa Khatoon. To set aside that ex parte order the petitioner moved an application qn 7-4-1980 (wide attested copy filed today) alleging that he has learnt about the ex parte maintenance order dated 5-2-1977 only on 29-3-1980 in connection with the recovery proceedings. That application was rejected by the learned Magistrate through his order dated 7-5-1980 Annex. 3 to the present petition. The ground for the rejection of the restoration application given by the learned Magistrate is that the application was moved more than there months after the passing of the maintenance order dated 5-2-1977. That application was rejected by the learned Magistrate through his order dated 7-5-1980 Annex. 3 to the present petition. The ground for the rejection of the restoration application given by the learned Magistrate is that the application was moved more than there months after the passing of the maintenance order dated 5-2-1977. Against that order the present petitioner filed criminal revision No. 56 of 1980 before the learned Sessions Judge who rejected it through his order dated 7-8-1980 (Annex. 1) on the ground that the notice was served upon the petitioner by registered post and it should be presumed that notice was duly served upon him when the envelope had returned back with the endorsement of 'refused'. In other words he held that the petitioner had every knowledge of the case under S. 125, Cr. P. C. Having lost his claim in the two Courts below the petitioner has come to this Court with the present petition. 3. The first question requiring consideration in this petition is whether or not service of summons in proceedings under S. 125 Cr. P. C. has to be effected in accordance with the procedure laid down in Sections 62 to 68 of the Criminal P. C. or it can be straightway effected through registered post. In Madan Mohan Srivastava v. State, 1968 All WR (HC) 76 service of summons in a case under S. 125, Cr. P. C. was effected through publication in newspaper and not through the police in accordance with the provisions contained in S. 62, and onwards of the Cr. P. C. It was laid down by a learned Single Judge of this Court that no provision in the Cr. P. C. prescribes publication in newspaper as a mode of service of summons and if summons is published in the newspaper it could not be said that personal service upon the opposite party was duly effected. It was emphasised in that authority that the only manner in which summons could be served upon the opposite party was that contained in S. 62 and onwards of the Cr. P. C. S. 69 of the new Cr. P. C. deals with the service of summons by post but it specifically lays down that the said mode of service can be resorted to only in the case of a witness. P. C. S. 69 of the new Cr. P. C. deals with the service of summons by post but it specifically lays down that the said mode of service can be resorted to only in the case of a witness. It does not lay down that service upon the accused or an opposite party of a criminal case can also be effected by post. In S. Thulsingam v. Padmawati Ammal, 1963 (I) Cri. LJ 546 a learned Single Judge of Madras High Court relying upon an earlier decision of that very Court and upon two decisions of other Courts held that service by registered post in proceedings under S. 488, Cr. P. C. (old) is not a proper service. Since this mode is not one of the modes mentioned in Chap. VI which relates to service to summons except in the single instance of summons to an incorporated company. It was added that consequently a person who has been served by registered post cannot be set down ex parte on his failure to appear. I see no reason to disagree with the proposition of law laid down in the aforesaid authority. In my opinion, the learned Magistrate committed illegality by resorting to postal service method for effecting service of summons upon petitioner in the present case instead issuing summons in accordance with section 62 Cr. P. C. and onwards. Once it is held that service by registered post could not be effected, it is obvious that the endorsement of 'refused' made by the postman upon the postal cover cannot lead us to the conclusion that the summons was personally served upon the petitioner. There is no reason to disbelieve the affidavit filed on his behalf to the effect that he had no knowledge of the proceedings prior to 29-3-1980 when recovery proceedings came to his knowledge. 4. While rejecting petitioner's restoration application the learned Magistrate held that a restoration application under the proviso to S. 126 (2), Cr. P. C. could be moved only within ninety days of the date of the ex parte order. This view of the learned Magistrate is against the view expressed in Hari Singh v. Smt. Bhakhtwari, 1970 All WR (HC) 329 wherein it was held by this Court in a case under S. 488 (6) of the old Cri. P. C. could be moved only within ninety days of the date of the ex parte order. This view of the learned Magistrate is against the view expressed in Hari Singh v. Smt. Bhakhtwari, 1970 All WR (HC) 329 wherein it was held by this Court in a case under S. 488 (6) of the old Cri. P.C. that where personal service upon the husband has not been effected and he subsequently learns about the proceedings under S. 125, Cr. P. C. the prescribed limitation of 90 days in moving the restoration application should be reckoned from the date of knowledge of the order and not from the date of the order itself. The learned Sessions Judge also wrongly upheld the learned Magistrate's order granting maintenance of Arifa Khatoon and also his order whereby he refused to set aside that order. 5. The result therefore is that the first legal error committed by the learned Magistrate while handling the application under S. 125, Cr. P. C. was that he wrongly issued summons to the petitioner by registered post instead of issuing the same in accordance with the procedure laid down by S. 62 and onwards of the Cr. P. C. The summons of the proceedings having not been personally served upon the petitioner the other mistake committed by the learned Magistrate was to decide the case ex parte. The third mistake committed by him was his failure to set aside the ex parte order on the ground that the restoration application waste moved more than ninety days after the passing of the order without applying his mind to the fact that summons was not personally served upon the petitioner and he could apply for restoration within ninety days from the date of the knowledge or the said order. The learned Sessions Judge also wrongly exercised his discretion to rejecting the revision of the petitioner by coming to the conclusion that service of summons by post was a valid and effective service upon the petitioner. Miscarriage of justice has obviously taken place on account of the said erroneous orders passed by the Magistrate and the Sessions Judge concerned. In the interest of justice therefore this court has to intervene so that abuse of the process of the court is avoided. Once the main order passed by the Magistrate under S. 125, Cr. Miscarriage of justice has obviously taken place on account of the said erroneous orders passed by the Magistrate and the Sessions Judge concerned. In the interest of justice therefore this court has to intervene so that abuse of the process of the court is avoided. Once the main order passed by the Magistrate under S. 125, Cr. P. C. dated 5-2-1977 is set aside on account of the aforesaid errors, it is obvious that recovery proceedings which are going on the basis of that order have to be set aside. 6. I, therefore, allow this petition and quash the maintenance order dated 5-2-1977 passed by the Magistrate concerned and also the order dated 7-5-1980 passed by him refusing to set aside the aforesaid maintenance order. I also set aside the revisional order dated 7-8-1980 passed by the Sessions Judge, Sultanpur in criminal revision No. 56 of 1980. The learned Magistrate is directed to register the application under S. 125, Cr. P. C. moved by Smt. Arifa Khatoon before him to its original number. The petitioner's counsel is directed to ask his client to put in appearance before the learned Magistrate on 12-10-1981 and to take a date from him for filing his written statement in reply to the Arifa Khatoon's application under S. 125, Cr. P. C. Thereafter the learned Magistrate shall decide the said petition under S. 125, Cr. P. C. on merits in accordance with law. The recovery proceedings which are pending in the Court of the learned Magistrate against the petitioner on the basis of the maintenance order dated 5-2-1977 which has been set aside by this Court shall stand automatically quashed.