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2014 DIGILAW 272 (JK)

Diya Muneer (Minor) v. Muneer Ahmad Sopori

2014-07-04

ALI MOHAMMAD MAGREY

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1. This petition under Section 561-A Cr. P. C. has been filed by the petitioner against the order dated 07.02.2014 passed by the learned Principal Sessions Judge, Anantnag, in Criminal Revision File no.27/Rev, whereby the learned Sessions Judge, while disposing of the revision petition, has directed the learned trial Magistrate to decide the application filed by the revision petitioner on 17.12.2013 in accordance with law and permitted the petitioner to file an application in terms of the provision of Section 488(6) Cr. P. C. 2. Facts of the case are briefly noted. The petitioner herein filed an application under Section 488 Cr. P. C. before the learned Judicial Magistrate, Anantnag, seeking grant of maintenance from the respondent. Records of the trial court reveal that when the service in ordinary mode failed to evoke any response from the respondent, the trial court ordered issuance of "duparti" summons. Despite that, the respondent failed to cause his appearance before the court to defend the aforesaid application for grant of maintenance. Consequently, by order dated 22.10.2013, the learned Magistrate set the non-applicant- respondent ex-parte, and directed the petitioner to adduce evidence in support of her petition. On production of evidence in ex parte by the petitioner, and after hearing the counsel for the petitioner, the learned trial Magistrate by order dated 07.12.2013 allowed the application, directing the non-applicant, respondent to pay a monthly maintenance of Rs.2,500/- to the applicant, Diya Muneer. The maintenance so order was ordered to be paid from the date of the application viz. 11.03.2013. 3. It appears that after the aforesaid order dated 07.12.2013 disposing of the application was passed by the learned trial Magistrate, the respondent filed an application on 17.12.2013 stating therein that he had come to know that he had been proceeded ex parte on 07.12.2013 and, therefore, sought setting aside of the ex parte proceedings. However, the records show that no action was taken by the learned Magistrate on this application. 4. The respondent, thereafter, on 28.12.2013 filed a criminal revision petition before the learned Principal Sessions Judge, Anantnag. In the said revision petition, the respondent prayed that the order dated 07.12.2013 passed by the learned Magistrate be set aside. However, the records show that no action was taken by the learned Magistrate on this application. 4. The respondent, thereafter, on 28.12.2013 filed a criminal revision petition before the learned Principal Sessions Judge, Anantnag. In the said revision petition, the respondent prayed that the order dated 07.12.2013 passed by the learned Magistrate be set aside. The said revision petition has been disposed of by the learned Sessions Judge in the following manner: "[T]he learned Magistrate shall dispose of the application filed by the petitioner on 17th of December, 2013 in accordance with law and pass appropriate orders. In case no application is pending before the learned Magistrate, then the petitioner shall also be at liberty to file an application in terms of Section 488(6) Cr. P. C" 5. The applicant-petitioner has challenged the aforesaid order in this petition under Section 561-A Cr. P. C. on various grounds taken therein. 6. I have heard learned counsel for the parties, perused the record and considered the matter. 7. Learned counsel for the petitioner invited the attention of this Court to the contents of the application dated 17.12.2013 filed by the respondent before the learned trial Magistrate, and submitted that the non-applicant had been set ex parte by order dated 22.10.2013 and not on 07.12.2013. On 07.12.2013 the learned trial Magistrate passed the final order on the application granting maintenance in favour of the applicant. The learned counsel submitted that in terms of the proviso to sub-section (6) of Section 488 Cr. P. C. the right course available to the non-applicant-respondent was to seek setting aside of the ex parte proceedings initiated against him on 22.10.2013 and the final order dated 07.12.2013, but the respondent did not seek setting aside the order dated 22.10.2013 whereby he was actually proceeded ex parte. 8. It be seen that the proviso to Section 488(6) Cr. P. C. empowers the Magistrate to proceed to hear and determine a case ex parte, if he is satisfied that the respondent is willfully avoiding service or willfully neglects to attend the Court, but any orders so made can be set aside for good cause shown on an application made within three months from the date thereof. P. C. empowers the Magistrate to proceed to hear and determine a case ex parte, if he is satisfied that the respondent is willfully avoiding service or willfully neglects to attend the Court, but any orders so made can be set aside for good cause shown on an application made within three months from the date thereof. That means, an application seeking setting aside the order whereby a non-applicant is proceeded ex parte can be made within three months and so also an application seeking setting aside of the order whereby the case is finally determined ex parte can also be made within three months of the date of such order. 9. In the instant case, the application, admittedly, was made by the non-applicant on 17.12.2013, i.e, within three months of the date of passing order dated 22.10.2013 as well as the order dated 07.12.2013. It is true that the respondent in the aforesaid application has stated that he has been proceeded ex parte on 07.12.2013, but it is immaterial inasmuch as he has actually prayed for setting aside the ex parte proceedings initiated against him, which admittedly were initiated on 22.10.2013. 10. It is note worth that the learned Sessions Judge, Anantnag, has not set aside the ex parte order dated 07.12.2013 passed by the learned trial Magistrate granting maintenance in favour of the petitioner herein. Therefore, to that extent there is no reason for the petitioner to feel aggrieved of the same. 11. Furthermore, insofar as the learned Sessions Judge has granted liberty to the non-applicant-respondent to file an application in terms of the proviso to Sub-Section (6) of Section 488 Cr. P. C. before the learned Magistrate, to seek setting aside of the order dated 07.12.2013, I do not see that the learned Sessions Judge has committed any illegality in so doing, since the revision petition itself has been decided on 07.02.2014, i.e., within just two months of the date of the order dated 07.12.2013 and the non-applicant had still one month's time left with him to file such application. 12. In view of the above, I do not see any irregularity or illegality having been committed by the learned Sessions Judge. The petition is, accordingly, dismissed along with the connected Cr. M. P. Interim direction, if any, subsisting shall stand vacated. 13. 12. In view of the above, I do not see any irregularity or illegality having been committed by the learned Sessions Judge. The petition is, accordingly, dismissed along with the connected Cr. M. P. Interim direction, if any, subsisting shall stand vacated. 13. The trial court records reveal that the application for grant of maintenance had been made on 11.03.2013. Alongwith the main application, a miscellaneous application for interim maintenance had also been filed by the applicant. But the learned Magistrate has not passed any order on the interim maintenance application till the main application was finally disposed of on 07.12.2013. Such course adopted by the learned Magistrate, leaving the minor child without any sustenance for so long a period is simply unacceptable. It is made clear that in the event the learned Magistrate is satisfied that the non-applicant-respondent has been able to show a good cause for setting aside of the ex parte proceedings and by reason thereof the final order of maintenance dated 07.12.2013 is set aside, the learned Magistrate shall simultaneously pass appropriate orders on the application for interim maintenance without loosing any further time so that the interests of the minor female child are secured in accordance with the spirit of the provision of Section 488 Cr. P. C. Further, in that eventuality, the learned Magistrate shall make an endeavour to dispose of the whole matter within a period of three months. 14. Parties are directed to appear before the trial Magistrate on 12.07.2014. 15. Registry is directed to send down the trial court records forthwith to enable the parties to appear before the trial Magistrate on the date fixed above.