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2024 DIGILAW 1234 (GUJ)

AARIF GANIBHAI MODA v. STATE OF GUJARAT

2024-06-13

GITA GOPI

body2024
JUDGMENT : GITA GOPI, J. 1. RULE returnable forthwith. Learned Additional Public Prosecutor waives service of notice of Rule on behalf of the respondent-State. 2. By way of this application, the applicant has prayed for quashing and setting aside the order dated 20.03.2024 passed by the learned Principal Judge, Family Court, Jamnagar in Criminal Miscellaneous Application No. 44 of 2024, whereby the revisionist was ordered to suffer rigorous imprisonment for the period of ten months for the arrears of ten months maintenance amount which was in total of Rs.70,000/- and further considering intentional disregard of the order of the Court, 10 days rigorous imprisonment for every month breach, thus 100 days further imprisonment, under Section 125(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to in short as ‘Cr.P.C.’). 3. Learned Advocate for the applicant herein Mr. M.S. Padaliya has drawn the attention of this Court to the Affidavit of the respondent No. 2-the wife, placed on record at Annexure ‘C’. In Paragraph 3 of the said Affidavit, it is stated that the entire amount has been paid to her as per the application of recovery. 4. Learned Advocate for the applicant submitted that an application could be moved before the learned Family Court itself, for quashing and setting aside the order which punishes the applicant for every month for non-payment of maintenance amount, but the order further stipulates ten (10) days rigorous imprisonment for every month’s breach as an additional punishment imposed upon the applicant for 100 days. It was further submitted that the same was required to be challenged as such order is prima-facie bad in law and unreasonable. 5. To assist his submissions, learned Advocate for the applicant has relied upon the following decisions of the Hon’ble Apex Court: (a) Shahada Khatoon v. Amjad Ali, (1995) 5 SCC 672 (b) Gorakshnath Khandu Bagal v. State of Maharashtra and Others, 2005 Cri. L.J. 3158 (c) The decision of the larger Bench of this Court in the case of Suo Motu v. State of Gujarat, 2010 AIR SCW 622 (d) The decision dated 03.12.2021 of the High Court of Judicature for Rajasthan at Jodhpur in the case of In Ref. U/s. 395 Cr.P.C. by District and Sessions Judge, Pali v. Unknown in D.B. Criminal Reference No. 2/2020 6. Learned Advocate for the respondent No. 2 Mr. U/s. 395 Cr.P.C. by District and Sessions Judge, Pali v. Unknown in D.B. Criminal Reference No. 2/2020 6. Learned Advocate for the respondent No. 2 Mr. F.O. Chariya has submitted that necessary order in accordance with law be passed, stating that the wife has received the total amount as prayed for in the Recovery proceedings and thus, has no objection if the warrant stands cancelled. 7. Learned Additional Public Prosecutor Mr. Hardik Mehta submitted that the impugned order of the learned Principal Judge, Family Court, Jamnagar is to be considered in view of the provision and further submitted that every breach of the maintenance order requires punishment from the Court. 8. Keeping in view the provision of Section 125(3) of Cr.P.C. to the submission advanced, the vital question which falls for consideration is: “Whether the learned magistrate is empowered to impose sentence beyond the statutory limit as prescribed under Section 125(3) of Cr.P.C.?” 9. Section 125(3) of the Cr.P.C. explains that if any person so ordered fails to comply with the order, without sufficient cause, the Magistrate may for every breach of the order, issue a warrant for levying the amount due. The learned Magistrate shall be empowered to issue warrant for the recovery of the maintenance due, in the manner provided for levying fines, and may also sentence such person for the whole or any part of each month’s allowance to imprisonment for a term which may extend to one month. Every single breach of monthly maintenance order gives rise to a separate cause of action making the Magistrate issue a warrant for levying of the amount. The Magistrate may exercise the discretion to pass an order sentencing imprisonment for a term which may extend to one month for each month’s default. 10. Every single breach of monthly maintenance order gives rise to a separate cause of action making the Magistrate issue a warrant for levying of the amount. The Magistrate may exercise the discretion to pass an order sentencing imprisonment for a term which may extend to one month for each month’s default. 10. Section 125(3) of Cr.P.C. reads as under: (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be] [Substituted by Act 50 of 2001, Section 2 for “allowance” (w.e.f. 24-9-2001)] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. 11. The order was passed in Criminal Miscellaneous Application No. 117 of 2023 on 24.11.2023 to pay monthly maintenance of Rs.7,000/-. The Recovery Petition was filed for the arrears of ten months. In view of the provisions under Section 125(3) of Cr.P.C. the due amount could be recovered by way of levying fine. The learned Magistrate herein subjected the applicant to ten months rigorous imprisonment, and further 100 days sentence was ordered observing intentional disregard of the order of the Court, thus 10 days additional rigorous imprisonment for every month breach. In view of the provisions under Section 125(3) of Cr.P.C. the due amount could be recovered by way of levying fine. The learned Magistrate herein subjected the applicant to ten months rigorous imprisonment, and further 100 days sentence was ordered observing intentional disregard of the order of the Court, thus 10 days additional rigorous imprisonment for every month breach. The proviso to sub-section (3) stipulates that no warrant shall be issued for recovery of any amount until and unless an application is made to the Court for such amount within a period of one year from the date on which it becomes due. The warrant would remain in force until the payment is made. The imprisonment which follows for each month’s default for whole or in part of the allowance would extend to one month until the payment is made. 12. Since in the present matter, the amount under the recovery proceeding had been paid as stated by applicant of Section 125(3) of Cr.P.C. the warrant which has been issued would be required to be cancelled. The issue which requires consideration is whether the order which has put the applicant to imprisonment of 100 days, over and above 10 months imprisonment for default of 10 months recovery for the maintenance amount, having found that it is the intentional disregard of the order of the Court, is legal and valid. 13. The application for recovery of the maintenance amount can be filed within a period of 12 months from the date on which it becomes due. The Section does not contemplate filing of separate application for recovery of each month’s allowance. When the respondent is found to be in breach of the order under Section 125 of Cr.P.C. the Court would be acting within its jurisdiction by issuing warrant for recovery of each months due and sentence the defaulter for every month’s default. 14. Incase of Suo Motu (supra), the view taken by the Hon’ble Larger Bench of this Court is reproduced hereunder for explaining the scope of the provision of Section 125(3) of Cr.P.C. Paragraph 14 is reproduced herein as under: “14. Sub-Section (1) of section 125 thus provides for monthly allowance to be paid to the wife, children, mother or father, as the case may be, at such monthly rate as the Magistrate thinks fit. Sub-Section (1) of section 125 thus provides for monthly allowance to be paid to the wife, children, mother or father, as the case may be, at such monthly rate as the Magistrate thinks fit. It can thus be seen that the maintenance that the Magistrate awards under section 125(1) becomes payable every month. Sub-Section (3) of section 125 provides for summary procedure for recovery of such maintenance allowance so fixed by the Magistrate, if any person so ordered fails without sufficient cause to comply with the order. It is provided that in such a case, for every breach of the order, the Magistrate may issue warrant for levying the amount due in the manner provided for levying fines and may sentence such person for the whole or any part of each month's allowance for the maintenance including interim maintenance remaining unpaid to imprisonment for a term which may extend to one month or until payment if sooner made. Sub-Section (3) of section 125 thus empowers the Magistrate to award sentence upto one month for the whole or part of each month's allowance remaining unpaid. Limitation on the power of the Magistrate to impose imprisonment for a term not exceeding one month, therefore, has to be viewed in the background of the purpose for which such imprisonment is provided. As already noticed, section 125(1) refers to monthly allowance to be fixed by the Magistrate for maintenance of wife, child, father or mother on such monthly rate as the Magistrate thinks fit. Upon failure of a person to comply with such an order, it is open for the Magistrate for every breach of the order to issue warrant for levying the amount due and further to sentence such a person for the whole or any part of each month's allowance remaining unpaid to imprisonment for a term which may extend to one month. To our mind, therefore, the Legislature never intended that regardless of the extent of the default on the part of the husband, the Magistrate can impose sentence only upto one month. True interpretation of section 125(3), in our view, would be that for each month of default in payment of maintenance, it is open for the Magistrate to sentence the defaulting person to imprisonment for a period of one month or until payment if sooner made.” 15. True interpretation of section 125(3), in our view, would be that for each month of default in payment of maintenance, it is open for the Magistrate to sentence the defaulting person to imprisonment for a period of one month or until payment if sooner made.” 15. The above referred judgment has taken into consideration Section 125(3) of Cr.P.C. by referring to various judgments of the High Court as also the order of the Hon’ble Apex Court in the case of Shahada Khatoon (supra) wherein it was held in Paragraphs 20, 21 and 22 as under: “20. It can thus be seen that prior to decision of the Apex Court in Shahada Khatoon’s case, almost unanimously different High Courts of the country had held that limitation on power of the Magistrate to impose sentence upto a maximum of one month is relatable to each month of default in payment of maintenance and that subject to the limitation prescribed in proviso to sub-section (3) of Sectoin125, it is open for the Magistrate to impose sentence upto a maximum of one month for each month of default and that a composite order of this nature can be passed by the Magistrate. It was only after the Apex Court decided the case of Shahada Khatoon that various High Courts have taken somewhat different view. 21. For the reasons already stated, we find that Supreme Court in Shahada Khatoon’s case did not lay down the ratio that regardless of the extent of default on the part of the husband in paying maintenance, the Magistrate can impose imprisonment of maximum of one month. We are in respectful disagreement with the view expressed by some of the High Courts to the contrary. 22. In the result, question is answered in following terms: “Magistrate in exercise of powers under section 125 of the Criminal Procedure Code is empowered to sentence a defaulting person for a term upto one month (or until payment if sooner made) for each month of default subject of course to the limitation provided in proviso to subsection (3) of section 125. In other words, it is open for the Magistrate to award sentence upto a maximum of one month for each month of default committed by the person ordered to pay maintenance and the maximum limit of sentence of one month referred to in sub-section (3) of section 125 will be applicable for each month of default. Magistrate can entertain separate applications from the person entitled to receive such maintenance or even entertain a common application for several months of default and pass appropriate order and, if found necessary, sentence a defaulting person upto a maximum one month for each month of default. In all such cases, however, period of limitation provided in sub-section (3) of section 125 shall have to be borne in mind.” 16. It has been laid down by answering the question referred to the Division Bench that the learned Magistrate in exercise of powers under Section 125 of Cr.P.C. is empowered to sentence the defaulting person or until payment if sooner made, for each months’ default, which is subject to limitation as in the proviso to sub-section (3) of Section 125 of Cr.P.C. It has been clarified that it is open for the learned Magistrate to award sentence upto a maximum period of one month for each month of default, for the person ordered to pay maintenance and the maximum limit of one month will be applicable for each month of default. The empowerment of the learned Magistrate to sentence the defaulter is of one month maximum limit of sentence for each month’s default. Here in this case, there is default for 10 months. Hence, the warrant would be for a period of sentence for 10 months limitation. The power of the Magistrate to impose imprisonment for a term not exceeding one month for each month’s default has to be viewed in the background of the purpose for which such imprisonment is provided. 17. The judgment of the Division Bench clarifies the learned Magistrate’s maximum power of sentencing a person for each month’s default. The maximum limit of sentence of one month referred to in the section will be applicable for each month of default. Such powers are to be exercised in conformity with the provisions. The provision does not permit the learned Magistrate to go beyond the statute. The maximum limit of sentence of one month referred to in the section will be applicable for each month of default. Such powers are to be exercised in conformity with the provisions. The provision does not permit the learned Magistrate to go beyond the statute. Further, such order of imprisonment can be passed provided the breach of the order of the learned Magistrate is brought to the notice, by an application to be filed. The learned Magistrate would be empowered to entertain an application for recovery of the maintenance amount which would not be beyond the period of one year from the date on which it became due. The order for maintenance of wives, children and parents are passed when the person having sufficient means neglects or refuses to maintain them. Such order passed for maintenance are subject to alteration, on proof of a change in the circumstances of any person. Section 127 of Cr.P.C. lays down the grounds under which alteration in allowance can be prayed. Section 127(3)(c) can also be prayed to be invoked for cancellation of maintenance order if the Magistrate is satisfied that the woman has obtained divorce from her husband and that she had voluntarily surrendered her rights to maintenance after her divorce. Breach of the order of the Court under Section 125 of Cr.P.C. would not make the learned Magistrate an aggrieved party. 18. The allowance order is subject to alteration as per Section 127 of Cr.P.C. Even during recovery proceedings under Section 125(3), the person so orders can bring to notice of the Magistrate the sufficient cause for non-compliance, the Magistrate may take these causes for consideration to pass recovery orders. Though every one month breach the punishment of sentence is prescribed under Section 125(3) of Cr.P.C. it is not mandatory that the Magistrate should pass the sentence of imprisonment in each case of default. Hence, the discretionary power is to be exercised on hearing the parties. 19. Breach of the maintenance order by the learned Magistrate would not constitute an offence under Section 125 of Cr.P.C. Necessary corollary can be drawn to examine the power of the learned Magistrate under Section 125 of Cr.P.C. by making reference to Section 31 of the Protection of the Women from Domestic Violence Act, 2005 (hereinafter referred to in short as ‘the D.V. Act’) which is reproduced as under: “31. Penalty for breach of protection order by respondent: (1) A breach of protection order, or of an interim protection order, by the respondent shall be an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. (2) The offence under sub-section (1) shall as far as practicable be tried by the Magistrate who had passed the order, the breach of which has been alleged to have been caused by the accused. (3) While framing charges under sub-section (1), the Magistrate may also frame charges under section 498-A of the Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.” 20. Cognizance of the offence under Section 31 of the D.V. Act can be taken by the learned Magistrate for the offence which gets constituted on the breach of the protection order or of interim protection order. The protection order of the Magistrate against respondent under D.V. Act cannot be disregarded. Such breach of protection order of the Magistrate will on brought to the notice, shall be punishable with imprisonment of either description for a term which may extend to one year or with fine which may extend to Rs.20,000/- or with both. The Section itself provides that as far as practicable such offence would be tried by the learned Magistrate who had passed the protection order. Section 31 further clarifies that while framing the charges, for the breach of the protection order under sub-section (1), the learned Magistrate may also frame charges under Section 498A of the Indian Penal Code (IPC) or for any further provision of the IPC or Dowry Prohibition Act, 1961 as the case may be, if the facts disclose the commission of such offence. The offence under Section 31 of the D.V. Act shall be cognizable and non-bailable. 21. Section 32 requires reproduction hereunder so as to vis-a-vis understand the power of the learned Magistrate under Section 125 of Cr.P.C. and that under the D.V. Act: “32. The offence under Section 31 of the D.V. Act shall be cognizable and non-bailable. 21. Section 32 requires reproduction hereunder so as to vis-a-vis understand the power of the learned Magistrate under Section 125 of Cr.P.C. and that under the D.V. Act: “32. Cognizance and proof: (1) Notwithstanding any thing contained in the Code of Criminal Procedure, Samvat 1989 the offence under sub-section (1) of section 31 shall be cognizable and non-bailable. (2) Upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub- section (1) of Section 31 has been committed by the accused.” 22. Section 125 of Cr.P.C. does not make such provision of taking cognizance of breach of order of the learned Magistrate as commission of offence. The Court under Section 125 of Cr.P.C. cannot take cognizance as offence of breach of magistrate’s order for maintenance, to punish the defaulter by sentencing him to imprisonment even if the Magistrate comes to a conclusion that it was an intentional breach and disregard of the order of the Magistrate. 23. The D.V. Act is for the protection of women from domestic violence. The protection orders by the learned Magistrate in favour of the aggrieved woman is passed after giving opportunity to the aggrieved person and the respondent and on being prima-facie satisfied that domestic violence has taken place or is likely to take place, a protection order in favour of the aggrieved person prohibiting the respondent to commit any such act as noted under Section 18 of the D.V. Act gets passed. Section 18 of the D.V. Act is reproduced herein-under: “18. Protection orders - The Magistrate may, after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person and prohibit the respondent from: (a) committing any act of domestic violence. (b) aiding or abetting in the commission of acts of domestic violence. (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person. (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact. (c) entering the place of employment of the aggrieved person or, if the person aggrieved is a child, its school or any other place frequented by the aggrieved person. (d) attempting to communicate in any form, whatsoever, with the aggrieved person, including personal, oral or written or electronic or telephonic contact. (e) alienating any assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties, jointly by the aggrieved person and the respondent or singly by the respondent, including her stridhan or any other property held either jointly by the parties or separately by them without the leave of the Magistrate. (f) causing violence to the dependants, other relatives or any person who give the aggrieved person assistance from domestic violence. (g) committing any other act as specified in the protection order.” Breach of the protection order would be subject to penalty as provided under Section 31 of the D.V. Act while 125(3) of the Cr.P.C. does not specify such penal provision. 24. The power under Section 31 of the D.V. Act can be exercised upon the sole testimony of the aggrieved person and the Court thereafter, may conclude that the offence under sub-section (1) of Section 31 has been committed by the accused. The cognizance of offence is thus taken on the evidence recorded, it can be also on the sole testimony of the aggrieved. 24.1. This aspect can be further understood from the standpoint of provision of monetary relief in the form of maintenance order under Section 20(1)(d) of the D.V. Act. 24.2. Section 20 of the D.V. Act also provides under sub-section (6) the effect of failure to make payment in terms of order under sub-section (1). 24.3. Section 20(1)(d) and sub-section (6) are reproduced herein-below for ready reference: “20. Monetary reliefs: (1) While disposing of an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but is not limited to,- ................. ................. ................. ................. ................. (d) the maintenance for the aggrieved person as well as her children, if any, including an order under or in addition to an order of maintenance under section 125 of Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force. ................. ................. ................. (6) Upon the failure on the part of the respondent to make payment in terms of the order under sub-section (1), the Magistrate may direct the employer or a debtor of the respondent, to directly pay to the aggrieved person or to deposit with the court a portion of the wages or salaries or debt due to or accrued to the credit of the respondent, which amount may be adjusted towards the monetary relief payable by the respondent.” 24.4. This provision under Section 20 of the D.V. Act also deals with the recourse available to the learned Magistrate for the recovery of the monetary relief passed under the said Section. The recovery is made as provided under sub-section (6) directing the employer or the debtor of the respondent to directly pay to the aggrieved persons or to deposit with the Court. The recovery of the money due is by passing such direction. Under the D.V. Act, there is no provision for sentencing the respondent on breach of the order of the learned Magistrate for monetary relief. Under purposive interpretation of Section 125(3) of Cr.P.C. it can be understood that the authority to sentence as provided by the section is to ensure that the defaulter shall make early payment of the recovery money. The powers of the learned Magistrate to impose punishment is restricted to twelve months. Though Section 125(3) of Cr.P.C. employs the expression “sentence” and “imprisonment” such liability to undergo imprisonment cannot be held to be a punishment as contemplated under Section 53 of the Indian Penal Code. 25. The mere fact that the defaulted amount can be recovered in the manner provided for levying fines cannot lead a Court to a conclusion that the defaulter has committed any offence. Non-payment of the maintenance amount is not an offence by itself. 25.1. The sentence of imprisonment imposed under Section 125(3) is not a punishment stricto senso; but is only a mode of recovery/enforcement of a defaulted payment. Non-payment of the maintenance amount is not an offence by itself. 25.1. The sentence of imprisonment imposed under Section 125(3) is not a punishment stricto senso; but is only a mode of recovery/enforcement of a defaulted payment. The power given to a Magistrate to sentence a person to imprisonment, does not mean he is punished for non-payment of the maintenance amount due but to ensure the recovery by directing detention of the person concerned in a prison. 25.2. Even a glaring fact which came to notice is that Magistrate has passed an order of rigorous imprisonment. Section 53 of the IPC deals with punishment the description of imprisonment is (1) rigorous and (2) simple. Section 125(3) of Cr.P.C. does not deal with imprisonment as rigorous, it is only in the form of direction to detain a person in prison till recovery. 25.3. In the case of Smt. Kuldip Kaur v. Surinder Singh and Another, (1989) 1 SCC 405 , it was held that a distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly allowance which has fallen in arrears on the other. A person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance “without sufficient cause” to comply with the order. Sentencing a person to jail is a “mode of enforcement”. It is not a “mode of satisfaction” of the liability. The liability can be satisfied only by making actual payment of the arrears. Sentencing to jail is the means for achieving the end of enforcing the order by recovering the amount of arrears. Thus a sentence of jail is not substitute for the recovery of the amount of monthly allowance which has fallen in arrears. 25.4. In the case of Shantilal v. State of Madhya Pradesh, (2008) 1 KLH 503, it was held in Paragraph 31 as under: “31. In a suo motu revision, the High Court observed that the Sessions Judge had awarded maximum term of sentence on M for the offence for which he was found guilty “and added to it a fine (which there could surely have been little prospect of his paying). The result was that he was, in effect, sentenced to eleven years' rigorous imprisonment.” 25.5. The object of Section 125 of Cr.P.C. is to prevent vagrancy and destitution. The result was that he was, in effect, sentenced to eleven years' rigorous imprisonment.” 25.5. The object of Section 125 of Cr.P.C. is to prevent vagrancy and destitution. It aims at providing speedy recovery. This aspect has clarified by following observations in Chaturbhuj v. Sita Bai, (2008) 2 SCC 316 , as: Sentencing a person to jail is a ‘mode of enforcing’ and not a ‘mode of satisfaction’ of the liability, which can be satisfied only by making actual payment of the arrears. The very purpose of imprisonment is to require a person who refuses to comply with the order without sufficient means to obey the order and to make payment of the monthly allowance. The purpose of imprisonment would not be to wipe out the liability which he has refused to discharge, the imprisonment of the person concerned is in no way a substitute for the recovery of the amount of the monthly allowance which has fallen in arrears. So accordingly, no sooner the due amount is paid the defaulter is ordered to be released from jail. Even after payment of the due money, he cannot be directed to serve the sentence as ordered. The warrant is issued for the recovery of the due amount, after execution of warrant if the person fails to pay the amount due as directed under warrant for the remaining unpaid amount, he has to suffer imprisonment for a term or until payment if sooner made. 26. Thus, in view of the reason given hereinabove, this Court concludes that the order passed by the learned Magistrate in the impugned order of sentencing the applicant for additional 100 days concluding it to be intentional breach of the order, and, subjecting him to a sentence of rigorous imprisonment of additional 10 days for every month as illegal and invalid contrary to the provisions of law, not mandated under Section 125 of Cr.P.C. Further, since the total amount has been paid by the present applicant, the warrant issued for recovery of the amount is required to be cancelled. 27. In the result, the application is allowed. The order dated 20.03.2024 passed by the learned Principal Judge, Family Court, Jamnagar in Criminal Miscellaneous Application No. 44 of 2024 and the proceedings initiated in pursuance thereof qua the applicant are quashed and set aside. 28. Rule is made absolute to the aforesaid extent. Direct service is permitted.