M. Sadasivayya, J.
1. The respondent though served has not appeared.
2. What has been challenged in this revision petition is the validity of an order made under Section 488 of the Criminal P C. by the Munsiff Magistrate, Aurad and which in revision hag been confirmed by the learned Sessions Judge of Bidar.
3. The only contention which has been urged by Mir. Manohar Rao Jagirdar, the learned Advocate for the petitioner, is that the mandatory requirement of Sub-section (6) of Section 488 of the Criminal P.C. has not been complied with, in the present case. The learned Magistrate depended upon the evidence adduced by way of affidavits, to reach his conclusions and evidence was not recorded in the manner required under Sub-section (6) of Section 488, Criminal P.C.
4. In AIR 1968 Mys 174, Naranappa v. Puttamma, it has been pointed out by this Court that the combined effect of the provisions of Sections 488(6), 244 and 355 of the Criminal P.C. is that a Magistrate holding an enquiry under Section 488 must make a memorandum of the substance of the evidence of each witness examined by such of the parties to the proceedings. It has been further pointed out that there is no provision for deciding such a case on affidavits, because whenever the Code permits decision of a matter on receipt of affidavits, specific provision has been so made. It has been held in that case that the provision prescribing the matter for recording the evidence during an enquiry under Section 488(6) is mandatory and contravention of the provision by the Magistrate is not merely an error or irregularity which can be cured under Section 587 of the Criminal P.C. In spite of the above clear ruling of this Court, the learned Magistrate has proceeded to decide the case on the affidavits of the parties. Strangely enough, the learned Sessions Judge has sought to distinguish the above decision of the High Court on the ground that in the present case the husband had remained ex parte. The view taken by the learned Sessions Judge, is clearly erroneous. As contended by Mr. Manohar Rao Jagirdar, the learned Advocate for the petitioner, the necessity to comply with the mandatory requirements of Sub-section (6) of Section 488 of the Criminal P.C. is not dependent upon a party being present or ex parts. In order that the evidence taken will be evidence in accordance with law, it is necessary that there should be compliance with Sub-section (6) of Section 488, Criminal P.C.
5. Having regard to the view that has been taken by this Court in AIR 1968 Mys 174, the order of the learned Magistrate, as well as the order passed by the learned Sessions Judge of Bidar in revision, have to be set aside. They are accordingly set aside, and this case is remanded to the Court of the Munsiff-Magistrate, Aurad, for fresh disposal in accordance with law.