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Sunil Kumar Phukan Vs. Mt. Pratima Buragohain - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantSunil Kumar Phukan
RespondentMt. Pratima Buragohain
Excerpt:
- - sub-section (6) of section 488 criminal procedure code, inter alia, provides all evidence under chapter xxxvi to be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, but under the proviso, if the magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the court, the magistrate may proceed to hear and determine the case ex parte. 9. the law is well settled on the authority of the aforesaid decision of the supreme court that when it is provided by law that limitation runs from the date of a particular order, limitation runs from the date of the knowledge, actual or constructive, of the order. the second party having made the application after..........granting maintenance to the first party (wife) and her minor child under section 488 of the code of criminal procedure.2. the facts of the case, in brief, are as follows: the first party made an application claiming maintenance of rs. 100/- for herself and rs. 50/- for her minor daughter from the second party. as the notice had not been returned, a fresh notice was issued. as the second notice was also not returned after service, the magistrate ordered issue of notice by registered post through the superintendent of police, nowgong under whom the second party was serving as sub inspector of police. on 11.4.1968 the magistrate found that the notice issued by registered post had been duly served and the postal acknowledgment receipt had been received, but as the second party did not.....
Judgment:

Baharul Islam, J.

1. This application under Section 439, Criminal Procedure Code filed by the second party (husband) is directed against the order dated 15.5.1968 passed by the Magistrate granting maintenance to the first party (wife) and her minor child under Section 488 of the Code of Criminal Procedure.

2. The facts of the case, in brief, are as follows: The first party made an application claiming maintenance of Rs. 100/- for herself and Rs. 50/- for her minor daughter from the second party. As the notice had not been returned, a fresh notice was issued. As the second notice was also not returned after service, the Magistrate ordered issue of notice by registered post through the Superintendent of Police, Nowgong under whom the second party was serving as Sub Inspector of Police. On 11.4.1968 the Magistrate found that the notice issued by registered post had been duly served and the postal acknowledgment receipt had been received, but as the second party did not appear, he fixed the case for hearing ex parte on 15.5.1968 on which date the first party examined two witnesses and the Magistrate passed an order directing the second party to pay a monthly maintenance of Rs. 150/- per month to the first party and her daughter.

3. On 19.12.1969 the second party appeared and filed an application for setting aside the ex parte order passed by the Magistrate on 15.5.1968. The learned Magistrate by his order dated 23.1.1970 rejected the application as barred by limitation under Sub-section (6) of Section 488 the Code of Criminal Procedure.

4. The only question involved in this case is Whether in the facts and circumstances of the case the application filed by the second party for setting aside the ex parte order was barred by limitation under Sub-section (6) of Section 488 of the Code of Criminal Procedure.

5. Mr. J.K. Barua the learned Counsel appearing for the second party-petitioner submits that the Criminal Procedure Code has not provided for service of summons by registered post and he refers to Sections 68 to 74 under Chapter VI of the Code of Criminal Procedure and in support of his argument he relies on. AIR 1950 EP 20 : 51 Cri LJ 390. On the other hand Mr. K.N. Saikia, learned counsel appearing for the first party-opposite party submits that the irregularity, if any in the service of summons has been cured under Section 537(a) of the Code of Criminal Procedure. In the instant case, assuming, while not deciding, whether service of the notice of a proceeding under Section 488. Criminal Procedure Code, by registered post is not permissible under the provisions of Criminal Procedure Code or whether the irregularity, if any in the service of summons by post was cured under Section 537(a) of the Code of Criminal Procedure, the fact remains that the notice in fact was served on the second party. The purpose, of the summons or the notice in a case under Section 488 of the Code of Criminal Procedure is to inform the second party about the case. The second party has a right to be informed of the case and be heard before any order is passed against him, but in my opinion, he has no vested right in the procedure by which he is to be served with notice or summons. Sub-section (6) of Section 488 Criminal Procedure Code, inter alia, provides all evidence under Chapter XXXVI to be taken in the presence of the husband or father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, but under the proviso, if the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. The provision of evidence of witnesses of the first party in the presence of the husband or his father, or his pleader, when his personal attendance is dispensed with, is mandatory. But this taking of evidence in presence of the second party or his father or his pleader, is dispensed with if the second party wilfully avoids service or wilfully neglects to attend Court. The first Part of the proviso pre-supposes knowledge of the second party of the existence of the case. In the instant case the finding of the Magistrate is and his finding has been borne out by materials on record and not denied by the second party that the second party accepted the notice of the case. He had therefore knowledge of the case. When in spite of the notice on him he neglected to attend the Court, the Magistrate was justified in taking evidence of the first party in the absence of the second party.

6. Now it is to be seen whether the application of the second party for setting aside the ex parte order was within time. The period prescribed under the second part of the proviso to Sub-section (6) is three months from the date of the ex parte order. The application having been filed after nineteen months of the order is prima facie barred by limitation.

7. Mr. J.K. Barua very strenuously contends that the period of three months from the date of the ex parte order runs from the date of the knowledge of the ex parte order by the second party, and in support of his contention he relies on. : [1962]1SCR676 and 1972 Cri LJ 93 (Punj)(FB).

8. In the aforesaid decision the Supreme Court considered the question of limitation under proviso (b) to Section 18(2) of the Land Acquisition Act, which provides limitation from the date of the Collector's award. The question involved was whether the date of the Collector's award meant date of the knowledge of the Collector's award by the aggrieved party. The Supreme Court has held:

Whether the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. So the knowledge of the party affected by the award made by the Collector under Section 12 of the Land Acquisition Act. 1894, either actual or constructive is an essential requirement of fair play and natural justice. Therefore the expression 'the date of the award' used in proviso (b) to Section 18(2) of the Act must mean the date when the award is either communicated to the party or is known by him either actually or constructively. It will be unreasonable to construe the words 'from the date of the Collector's award' used in the proviso to Section 18 in a literal or mechanical way.' In the case reported in : AIR1966AP50 referred to above, Justice Jaganmohan Reddy. as he then was, has held that the principles laid down by the Supreme Court in the above decision applied to the limitation prescribed by the proviso to Sub-section (6) of Section 488 of the Code of Criminal Procedure, I respectfully agree with the Andhra view and hold that the principle laid down by the Supreme Court in : [1962]1SCR676 (supra) applies to the limitation prescribed under the proviso to Sub-section (6) of Section 488, Criminal Procedure Code. This view also gets support from 1972 Cri LJ 93 (Punj)(FB), on which Mr. Barua relies. In this case a full Bench of the Punjab and Haryana High Court has held:

Under the proviso to Sub-section (6) of Section 488. Criminal Procedure Code, a husband, against whom an ex parte order has been made fixing maintenance allowance, is entitled to reckon the period of limitation of three months from the date of knowledge of the order for an application made to set aside that order on the ground that he had neither wilfully avoided service nor wilfully neglected to attend the Court and pleads want of the knowledge of the order. Terminus a quo for reckoning the period of limitation in such a case is not the date of the order.

** ** **

The expression 'the date thereof' occurring in the proviso to Sub-section (6) of Section 488 of the Code must be construed to mean the date on which the husband or the father, as the case may be acquired knowledge, actual or constructive, of the proceedings against him.

9. The law is well settled on the authority of the aforesaid decision of the Supreme Court that when it is provided by law that limitation runs from the date of a particular order, limitation runs from the date of the knowledge, actual or constructive, of the order.

10. In the instant case the notice of the proceedings under Section 488 was duly served on the second party on 28.3.1968, while the ex parte order was passed on 15.5.1968, He did not take any interest or steps in the case. Therefore in my opinion his conduct amounted to wilful negligence to attend the Court and it shall be presumed that he had constructive knowledge of the ex parte order and as such limitation will run from the date of that order. The second party having made the application after nineteen months of that order, his application was clearly out of time and the learned Magistrate was justified in rejecting his application.

11. In the result this application fails and is rejected. The rule is discharged.


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