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PATNA HIGH COURT
Mohd. Mustkim @ Bhola vs Bibi Anuja Khatoon
Equivalent citations: 1997 (2) BLJR 1405
DATE: 12 September, 1996
ACTS: SEC 125 AND 62 Code of Criminal Procedure
JUDGMENT
P.K. Sarin, J.
1. Heard the learned Counsel for the parties.
2. This criminal writ application has been filed by the petitioner for quashing the order dated 21.7.95 passed in Criminal Revision No. 430/94 by 2nd Additional Sessions Judge, Purnea, (copy at Annexure 1) alleging that the opposite party is legally married wife of the present petitioner. It was alleged that the petitioner began to treat the respondent with cruelty on her inability to bring a buffalo from her father’s house and ultimately in November, 1991 after brutally assaulting her the opposite party (in this application) was driven out of his home and since then she has been living with her parents alongwith her minor daughter. The respondent claimed maintenance for her and also for her minor daughter.
3. It appears that the summon in respect of said application was sent to the petitioner by registered post but it was not served and thereafter summon was again sent by registered post on 8.9.94 but the registered envelop was not received back even after expiry of 30 days. Hence the learned Magistrate held that the summons were deemed to be served and accordingly proceeded ex- parte. After taking evidence he passed an order on 25.8.94 awarding maintenance at the rate of Rs. 300/- per month to the respondent and Rs. 100/- per month to the child.
4. Against the said order the petitioner filed Cr. Rev. No. 430/94 before the Sessions Judge, which has been dismissed by the order dated 21.7.95. The Revisional Court held that there was due service by sending the summons by registered post and there was no ground for interfering with the order passed by the learned Judicial Magistrate. Feeling aggrieved by the said order passed in criminal revision application this criminal writ application has been filed.
5. It has been contended by the learned Counsel for the petitioner that the procedure for service of summons to a party are provided in Section 62 of the Code of Criminal Procedure which requires that the summons shall be served by a police officer, or subject to such rules as the state Government may make in this behalf, by a officer of the Court issuing it or other public servant and the summons if practicable be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons. It has been contended that nowhere it has been provided that summons to any party can be served by sending it by registered post and the service of summons by registered post is no valid service in the eye of law. In support of this contention the learned Counsel for the petitioner has placed reliance on a decision of Allahabad High Court in the case of Dhani Ram v. State 1994 Crl LJ 1234 where in it has been held that under the Code there is no provision for effecting service on a party or a witness in any manner other than that provided by Chapter VI of the Code. Therefore, the service of notice of the proceedings under Section 488 of the Code of Criminal Procedure (which was similar to present Section 125 of the Cr. P.C. 1973) by registered post or by publication in the newspaper is unwarranted. The learned Counsel has further placed reliance on the decision of Guthikonda Sri Hari Prasad Rao v. Guthikonda Lakshmi Rajyma 1992 CrlLJ 1594 wherein it has been held that in a proceeding under Section 125 of the Code of Criminal Procedure service of summons by registered post is insufficient service and the ex-parte order of maintenance on the basis of such insufficient service is not sustainable.
6. Section 62 of the Code of Criminal Procedure lays down the procedure for effecting service of summons issued to the party which has to be served by police officer, or subject to such rules as the State Government may make in this behalf by officer of the Court, or other public servant and Section 64 of the Code lays down that for effecting service of summons when persons summoned cannot be found the summons may be served by leaving one of the duplicates for him with some adult male member of his family residing with him, and the person with whom the summons is so left, shall, if so required by the serving officer, sign a receipt, therefor on the back of the other duplicate. Section 65 of the Code lays down that if service cannot be effected as provided in Sections 62, 63 or 64 it may be served by affixing one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides and thereupon the Court may, after making such inquiry as it thinks fit either declare that the summon has been duly served or may order fresh service in such manner. Section 69 of the Code provides that in respect of witnesses, summons may be served by registered post. Only provision for service of summons by post is in Section 69 of the Code and it relates to the witnesses and not to a party in the proceedings. Therefore, the summons or notice in respect of proceedings under Section 125 of the Code of Criminal Procedure to the opposite party of that case has to be served in accordance with the procedure laid down under Section 62 or 64 or 65 of the Code of Criminal Procedure and not in accordance with the procedure contemplated by Section 69. In the present case, notice of the application under Section 125, Cr. P.C. was not served on the present petitioner by adopting any of the procedure laid down in Sections 62 or 64 or 65 of the Code. The procedure adopted for service of notice was by sending it by registered post which is permissible under Section 69 only in respect of witnesses and not in respect of party to the proceeding. Therefore, service of notice by registered post cannot be held to be valid service in accordance with law. The orders of the learned Magistrate or the revisional Court that there was due service by sending the notice by registered post is against the express provisions of the law as already indicated above. When there is no valid service, the ex-parte order of maintenance could not have been sustained. The revisional Court has erred in not setting aside that ex-parte order of maintenance passed by the learned Magistrate. In these circumstances, interference by this Court by exercising powers under Articles 226 and 227 of the Constitution of India is necessary so that the petitioner may get opportunity to contest the proceeding under Section 125, Cr. P.C. he has been denied opportunity of hearing, by not effecting service of notice on him, in accordance with law.
7. Accordingly the impugned order passed by the revisional Court is set aside. Consequently, the order dated 25.8.94 passed by the learned Magistrate is also set aside. The learned Magistrate is directed to give opportunity to the petitioner to put his plea of defence in respect of the said proceedings and thereafter the application under Section 125, Cr. P.C. moved by the opposite party shall be decided in accordance with the law. The petitioner shall appear before the Court concerned on 9.10.1996.
DATE: 12 September, 1996