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2018 DIGILAW 1121 (ALL)

Vivek Mathur v. State of U. P.

2018-05-04

SAUMITRA DAYAL SINGH

body2018
JUDGMENT : SAUMITRA DAYAL SINGH, J. 1. Heard Sri Piyush Dubey, learned counsel for the applicant and Ms. Pooja Saxena, opposite party no.2 who has appeared in person, the learned AGA for the State and perused the record. 2. The present application has been filed against the order dated 04.02.2017 passed by the Judge, Family Court/FTC-I, Agra in Misc. Case No. 73 of 2016 (Vivek Mathur Vs. Pooja Saxena). By that order the learned court below has rejected the application filed by the applicant under Section 126 (2) Cr.P.C. The aforesaid application had been filed with reference to the ex parte order dated 16.05.2016 passed in Case No. 598 of 2015. By that order maintenance allowance had been awarded @ Rs. 20,000/- per month to the opposite party no.2 and @ Rs. 15,000/- per month to her son, from date of their application being 24.07.2015. 3. Earlier, by the order dated 16.02.2017, passed in the present proceedings, the matter was referred to the Mediation and Conciliation Centre of this Court, subject to payment of Rs. 1,50,000/- to the opposite party no.2. Over and above that amount, a sum of Rs. 20,000/- had been paid by the applicant towards mediation. 4. Admittedly, the mediation has failed and the matter has thus been listed before this Court for hearing. 5. Only submission advanced by learned counsel for the applicant is that the applicant had no knowledge of the ex parte order dated 16.05.2016 passed under Section 125 Cr.P.C. No sooner did he gain knowledge of the same, through a common acquaintance of the parties, he filed the application under Section 126 (2) Cr.P.C. on 24.05.2016. 6. In this regard, it is further submitted that the opposite party no.2 did not file any objection or reply to the aforesaid application filed under Section 126 (2) Cr.P.C. 7. Then it has been submitted that the applicant had no knowledge of the proceeding inasmuch as the text message allegedly sent to him through SMS, on his cellular phone, by the police officer at Bengaluru, was never received by him and also it is submitted that such notice was never affixed at his residence. Since he had no knowledge of the proceedings under section 125, it is submitted that the learned court below has erred in rejecting the application filed Under Section 126 (2) Cr.P.C. 8. Since he had no knowledge of the proceedings under section 125, it is submitted that the learned court below has erred in rejecting the application filed Under Section 126 (2) Cr.P.C. 8. Opposing the submission made by learned counsel for the applicant, the opposite party no.2, submits that though she may not have filed a formal objection to the application under section 126 (2) Cr.P.C., however, she had brought all the relevant facts on record denying the assertion made in the application filed under Section 126 (2) Cr.P.C. 9. Such denial is stated to be contained in her affidavit in support of her application filed under Section 340 Cr.P.C. That application had been filed with reference to the affidavit filed in support of the application under Section 126 (2) Cr.P.C. In her affidavit filed along with her application filed under section 340 Cr.P.C., the opposite party no.2 had annexed documents that were numbered and described/identified as paper no. 5B (affidavit) and documents 5B/4 to 5B/14. 10. On the strength of her application filed under section 340 Cr.P.C., it has been submitted that the earlier notices dispatched to the applicant by speed post mode had been served on the applicant but that he failed to respond to the same. Thus earlier notice (in the same proceedings), had been dispatched to the applicant on 28.07.2015, by the learned court below, by speed post bearing RU 140470019IN. It was delivered to the applicant at Bengaluru, at his residence on 10.08.2015. Then, another notice was dispatched to the applicant on 14.10.2015, by the learned court below, again through speed post mode bearing EU 424253402IN. It was delivered to the applicant on 23.10.2015. 11. It has then been submitted that in addition to the above, notice of the proceedings was further effected on the applicant through the agency of the local police at Bengaluru. Thus the applicant had full knowledge of the proceedings and he deliberately avoided appearing in those proceedings. Therefore, the learned court below has rightly rejected the application filed under section 126(2) Cr.P.C. 12. It is first seen, that these being proceedings under the Criminal Procedure Code, service of notice/summons by post is not the prescribed mode. 13. Thus the applicant had full knowledge of the proceedings and he deliberately avoided appearing in those proceedings. Therefore, the learned court below has rightly rejected the application filed under section 126(2) Cr.P.C. 12. It is first seen, that these being proceedings under the Criminal Procedure Code, service of notice/summons by post is not the prescribed mode. 13. Having said that, in the present proceedings, as a fact there does not appear to exist any denial to the fact that two notices (as noted above) were dispatched by the learned court below, through speed post. The applicant did not dispute the correctness of that fact allegation or that such notices were not dispatched to the applicant at his correct address or that, though they were dispatched at the correct address, the same were however not delivered to him. 14. In this background fact, the learned Court below examined the service of summons by the local police authority at Bengaluru. It is claimed that the local police at Bengaluru tried to contact the applicant on his cellular phone number 09845187532, from the cellular phone no. +91 9964153699, by Mr. Muniraju R, Head Constable No. 1644, both by making a call as also by sending a text message through SMS. The applicant disputes that any phone call was ever made by the police authority and that he ever received a text message through SMS on his mobile phone. Similarly, the applicant denied any summon of the proceeding under Section 125 Cr.P.C. was affixed at his house property at Bengaluru. 15. However, other than a bald allegation denying service, no specific denial exists on record. Neither the applicant ever denied the subscription or use or correctness of his cellular number 09845187532 nor did the applicant dispute the correctness of the address at which the summon is claimed to have been served through affixation. The applicant only pleaded non service of summons. He completely glossed over the fact pertaining to earlier dispatch of notices by the learned court below, through speed post mode. 16. By virtue of the fact that the proceedings arise under the Criminal Procedure Code, in the first place, Chapter VI of that enactment would apply as to "Processes To Compel Appearance". He completely glossed over the fact pertaining to earlier dispatch of notices by the learned court below, through speed post mode. 16. By virtue of the fact that the proceedings arise under the Criminal Procedure Code, in the first place, Chapter VI of that enactment would apply as to "Processes To Compel Appearance". Thus, if strictly construed, barring summons to a witness, all other summons to parties (including the applicant here in) are required to be served by a police officer and in respect to summons issued to a party residing outside the local limits of the court issuing such summons, they are required to be served in accordance with provisions of sections 67 & 68 of that Code. 17. At the same time, the nature of proceedings arising under section 125 Cr.P.C. is very different in nature and purport when compared to any other inquiry or trial of offence required arising under that Act. It is by very nature a provision to further social justice, to prevent vagrancy and destitution and to preserve human life with the accompanying dignity it is entitled to. Though these are proceedings fall under the Criminal Procedure Code, however, the nature of liability is essentially civil. 18. It may be remembered that Section 125 of the Criminal Procedure Code, 1973 is a successor of Section 488 of the Code of Criminal Procedure, 1898. In Nand Lal Misra Vs. Kanhaiya Lal Misra, AIR 1960 SC 882 . With respect to Sections 488, 489 and 490 of the Code of Criminal Procedure, 1898, the Supreme Court observed as under: "(8) ..... (6) .....The relief given under this Chapter is essentially of civil nature. It prescribes a summary procedure for compelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court." 19. Again in Mst. Jagir Kaur and another Vs. Jaswant Singh, AIR 1963 SC 1521 , it was observed as under: "(12) To summarize: Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief." 20. Jaswant Singh, AIR 1963 SC 1521 , it was observed as under: "(12) To summarize: Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. Section 488 prescribes alternative forums to enable a deserted wife or a helpless child, legitimate or illegitimate, to get urgent relief." 20. What has been held by the Supreme Court in the context of Sections 488, 489, 490 of the Code of Criminal Procedure, 1898, is equally true with respect to Sections 125, 126, 127 and 128 of Criminal Procedure Code, 1973. 21. Neither the non applicant is an accused nor is he to be punished for a wrong. He is only to be directed to provide for means of sustenance to a person to whom he is otherwise bound to provide for, in normal circumstances, as a member of a civilized society. 22. Considered in that light, even, if the assertion made by the applicant is accepted that the summons had not been served on the applicant, still, in view of the background facts noted above, it appears that the applicant had due knowledge of the proceedings upon service of notices dispatched by the learned Court below through speed post. 23. Section 126 (2) Cr.P.C. reads as under : "(2) All evidence in such proceedings shall be taken in the presence of the person against whom an order for payment of maintenance is proposed to be made, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed for summons-cases: Provided that if the Magistrate is satisfied that the person against whom an order for payment of maintenance is proposed to be made is wilfully avoiding service, or wilfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex parte and any order so made may be set aside for good cause shown on an application made within three months from the date thereof subject to such terms including terms as to payment of costs to the opposite party as the Magistrate may think just and proper". 24. The legislature having made clear that if the Magistrate is satisfied that the non-applicant in these proceedings "is willfully avoiding service or willfully neglecting to attend Court", he may proceed to hear and determine the case ex parte. 24. The legislature having made clear that if the Magistrate is satisfied that the non-applicant in these proceedings "is willfully avoiding service or willfully neglecting to attend Court", he may proceed to hear and determine the case ex parte. Thus, that prior service of summons on the non applicant is not a precondition for such person to be faced with an ex parte order. Only this much is sufficient that the Magistrate be satisfied that the non applicant has willfully avoided service or that he is neglecting to attend the Court. 25. Thus, once the learned court below had, in the facts of this case found that the earlier notices dispatched by it, by speed post, had not been responded to by the applicant and the applicant did not make a specific denial of service of such notices, it is difficult to find fault with the ex parte nature of the order passed by the learned Court below. 26. Even as to the service of summons sought to be effected through the local police at Bengaluru, there does not appear to exist any material to doubt the correctness of the facts stated in the communication made by the local police authority at Bengaluru to the learned Court below stating that oral as also text communication of the proceedings pending before the learned court below had been given to the applicant on his cellular phone. The applicant did not deny that he is the subscriber of such cellular phone number or that it was in his use and possession or that the said phone was active at the time when communication is said to have been made to the applicant on that number. 27. Other than a bald denial made to service of summon by affixation, the said denial has not been substantiated and supported by any credible evidence. 28. It is unambiguously clear that the applicant was avoiding service and/or was willfully neglecting to attend to the proceedings before the learned court below. It is so because, once the applicant had received the notice of the proceedings that were dispatched by speed post, it cannot be accepted that he had no knowledge of the proceedings wherein such notice had been issued. It is so because, once the applicant had received the notice of the proceedings that were dispatched by speed post, it cannot be accepted that he had no knowledge of the proceedings wherein such notice had been issued. His admitted non appearance despite such intimation, has naturally led the learned court below to be satisfied that the applicant has willfully avoided service and/or has willfully neglected to attend the proceedings. Consequently, it has passed the ex parte order against him. 29. In view of the above, there does not appear any error in the reasoning given by the learned court below while rejecting the application filed under Section 126 (2) Cr.P.C. on the ground that the applicant had sufficient knowledge of the proceedings and that he had been served with notices but that he failed to appear in the same. 30. The present criminal application lacks merits and is accordingly dismissed. 31. It is however, made clear that the amount of Rs. 1,50,000/- that had been deposited by the applicant in pursuance of the earlier order dated 16.02.2017 passed in these proceedings may be adjusted towards the recovery to be made in pursuance of the ex parte order passed by the learned court below, under Section 125 Cr.P.C. dated 16.05.2016.