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State of Mysore Vs. GhousuddIn and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1972CriLJ808
AppellantState of Mysore
RespondentGhousuddIn and anr.
Excerpt:
.....with the same. - 18 of 1970 before the sessions court on 25-11-1970. on hearing both sides, the learned sessions judge has opined that the magistrate, while passing the order in question, has failed to comply with the provisions of sub-section (6) of section 488 criminal p. the further reasoning of the learned sessions judge is that the magistrate has, on 11-8-1970. on the advocate for the husband reporting no instructions, not recorded that he wag satisfied that the husband was wilfully avoiding service or wilfully neglecting to attend the court, and. 5. the learned sessions judge has failed to appreciate the record made by the trial court in its order sheet d/- 21-7-1970. the opening sentence is 'parties are present'.that ordinarily means and in this case there is no other material..........petition no. 18 of 1970 before the sessions court on 25-11-1970. on hearing both sides, the learned sessions judge has opined that the magistrate, while passing the order in question, has failed to comply with the provisions of sub-section (6) of section 488 criminal p. c. and the proviso thereunder.4. the reasoning of the learned sessions judge is that on 21-7-1970 the husband was not present and only his advocate was present and as such the evidence of p. ws, 1 to 4 was recorded in the absence of the husband and, therefore the mandatory provisions of sub-section (6) of section 488 of the criminal procedure code laying down that the evidence should be taken in the presence of the husband or father, have been offended. the further reasoning of the learned sessions judge is that.....
Judgment:
ORDER

M.S. Nesargi, J.

1. This is a reference made by the Sessions Judge Bidar against an order passed under Section 488 of the Criminal 'Procedure Code by the First Class Magistrate, Bidar in Criminal Case No. 81 of 1967.

2. The few facts necessary for a decision in this case are : That respondent 2 wife filed an application against respondent-1 her husband under Section 488 of the Criminal Procedure Code claiming maintenance from him. The husband appeared through an Advocate and filed objections. Ultimately the wife came to be examined and cross-examined. Her cross-examination was completed on 21-7-1970. The order sheet of the date 21-7-1970 reads as follows:

Parties are present, Cross-examination of P.W. 1. and P. W. 2, P. W. 3 and P. W. 4's statement recorded, petitioner's evidence heard. Case adjourned for defence evidence call on 11-8-1970.

On 11-8-1970, the counsel appearing on behalf of the husband reported no instructions, and the case was adjourned to 17-8-1970 for arguments. On 17-8-1970 also it was adjourned for arguments to 24-8-1970. On 24-8-1970 the arguments on behalf of the wife were heard and orders were pronounced on 31-8-1970. By this order, the Magistrate has allowed the application of the wife and fixed the quantum of maintenance at Rs. 40/- per month.

3. It was against this order that the husband filed a revision petition in Criminal. Revision petition No. 18 of 1970 before the Sessions Court on 25-11-1970. On hearing both sides, the learned Sessions Judge has opined that the Magistrate, while passing the order in question, has failed to comply with the provisions of Sub-section (6) of Section 488 Criminal P. C. and the proviso thereunder.

4. The reasoning of the learned Sessions Judge is that on 21-7-1970 the husband was not present and only his Advocate was present and as such the evidence of P. Ws, 1 to 4 was recorded in the absence of the husband and, therefore the mandatory provisions of Sub-section (6) of Section 488 of the Criminal Procedure Code laying down that the evidence should be taken in the presence of the husband or father, have been offended. The further reasoning of the learned Sessions Judge is that the Magistrate has, on 11-8-1970. on the Advocate for the husband reporting no instructions, not recorded that he wag satisfied that the husband was wilfully avoiding service or wilfully neglecting to attend the court, and. therefore, it was necessary to hear the case ex parte. It is his opinion that because of this ground the order passed by the Magistrate is vulnerable.

5. The learned Sessions Judge has failed to appreciate the record made by the trial court in its order sheet D/- 21-7-1970. The opening sentence is 'parties are present'. That ordinarily means and in this case there is no other material to hold otherwise that both the parties were present. Therefore it will have to be held that the husband was present when the evidence of P. Ws. 1 to 4 was recorded. In the result, the first ground relied upon by the learned Sessions Judge that the evidence of P. Ws. 1 to 4 appears to have been recorded in the absence of the husband falls to the ground. In regard to the remaining ground that the Magistrate has. on 11-8-1070. not recorded that he was satisfied that the husband was wilfully avoiding service or wilfully neglecting to attend the court, and therefore, it was necessary to hear the case ex parte. I am of the opinion that this ground is not available because, as already pointed out, the husband was present in Court on 21-7-1970 and, therefore, it will have to be held that he was aware of the fact that the case was adjourned to the next date, viz., 11-8-1970, It was the duty of the husband to be present in the court on that day, because the case was set out for defence evidence. If for any reason he had found himself unable to attend the court on 11-8-70, it was his duty to get in contact with his Advocate and make arrangements for securing an adjournment. The fact that the Advocate of the husband reported no instructions, provides ample material to infer that the husband had failed to contact his Advocate thereby leaving the Advocate in the lurch. It is evident that the Advocate reported no instructions because of this attitude on the part of the husband. In this connection, the learned Sessions Judge has placed reliance on the decision of this Court reported in (1967) 1 Mys LJ 236 : AIR 1968 Mys 188 (Sri Krishna Venkatesh Pai v. Devappa Ayyu Naik). In this decision, it has been held by this Court that where a counsel has been engaged for an appeal and if, for any reason he wants to report no instructions it is his duty to notify the appellant first and then seek leave of the court to retire from the case, and it is then the duty of the court to protect the interests of the appellant by issuing notice to him or direct counsel to file proof of having issued notice of his intention not to proceed with the appeal, and further that the court cannot dismiss the appeal merely on the counsel reporting no instructions. I am unable to see how this decision can support the reasoning put forward by the learned Sessions Judge. The facts that were under consideration in the said case were those that had transpired in an appeal. In appeals, no date of hearing would be communicated to the party directly. Only counsel of the parties would be aware of the dates of hearing. In the case now under consideration, the date of hearing on 11-8-1970 was in the know of the husband as it was the date set out on 21-7-1970 in his presence. Therefore, in my opinion, there was no obligation cast on the court to issue notice of the further adjournment to the husband on the Advocate reporting no instructions.

6. The facts and circumstances narrated and discussed in the preceding paragraphs provide sufficient material to hold that the husband remained absent on 11-8-1970 without even making attempts to arrange to intimate the court the reasons for his so remaining absent. It is, hence, seen that on merits, the reference is to be rejected.

7. The learned Sessions Judge has overlooked the latter part of the proviso to Sub-section (6) of Section 488 of the Criminal Procedure Code. The whole of the proviso reads as follows:

Provided that 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. Any orders so made may be set aside for good cause shown on application made within three months from the data thereof.

The latter part of the proviso made it incumbent on the husband in this case to have applied to the Magistrate, that too within three months from the date of the Order viz., 31-8-1970. setting out sufficient cause or ground for his remaining absent on 11-8-1970 and requesting for setting aside of the order now in question. When the law specifically lays down a particular procedure to be adopted it has to be complied with before an aggrieved person proceeds to invoke the revisional jurisdiction of the higher courts. In view of the failure of the husband to take steps as narrated above. i.e. to file an application before the said Magistrate within three months praying for setting aside the order now in question, the learned Sessions Judge could not have, in law, entertained the revision petition filed by the husband, in these circumstances, it is to be held that the revision petition filed by the husband in the Sessions Court at Bidar is in law, not maintainable.

8. It is in view of the foregoing reasons that the reference is rejected.


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