T.K. Tukol, J.
1. The sole point for my consideration in this petition is whether the order passed under Section 488(1) of the Code of Criminal Procedure by the City Magistrate, Bangalore fixing up the monthly allowance for the maintenance of the respondent merely (sic) affidavits filed by the parties is legal and valid.
2. The respondent filed an application before the City Magistrate under Section 488 of the Criminal Procedure Code against the present applicant stating that she was his legally-wedded wife, that during her illness he had married a second wife and that he had refused to maintain her. She prayed for a monthly allowance of Rs. 50/-. In his written statement the present petitioner while admitting many of the averments, contended that he never refused to maintain his wife and that being a carpenter his income was very meagre.
3. At the hearing, the parties filed their respective affidavits on 6-2-1962. The Magistrate heard arguments on 6-3-1962 and passed the impugned order on 14-3-1962. The sole contention raised by the learned Advocate for the petitioner is that the order passed by the City Magistrate was bad in law as it was not based on the evidence re-corded by him. Section 488(6) of the Criminal Procedure Code lays down that
'All evidence under this Chapter shall 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, and shall be recorded in the manner prescribed in the case of summons-cases'. The proviso to this sub-section is not relevant. It is obvious from the wording of this sub-section that all evidence under this chapter shall be recorded in the manner prescribed in the case of summons-cases. The provision prescribing the manner for recording the evidence during an enquiry under Section 488(6) is mandatory. Section 244 which prescribes the procedure for trial of summons-cases provides that the Magistrate, when he does not convict the accused on his admission, shall proceed to hear the complainant and take all such evidence as may be produced in support of the prosecution, hear the accused and take all such evidence as he produces in his defence. In what manner such evidence shall be recorded is prescribed by Section 355 of the Code.
According to that Section, in summons-cases tried before a Magistrate other than a Presidency Magistrate, the Magistrate shall make a memorandum of the substance of evidence of each witness as the examination of the witness proceeds. Such memorandum has to be written and signed by the Magistrate with his own hand and forms part or the record. Where the Magistrate is prevented from making a memorandum as required under sub-sections. (1) and (2) or Section 355, he shall record reasons for his inability to do to and shall cause such memorandum to be made in writing from his dictation in the open Court and shall sign the same. The combined effect of all these provisions is that they obviously require that a Magistrate holding an enquiry under Section 488 must make a memorandum of the substance of the evidence of each witness examined by each of the parties to the proceeding. There is no provision for deciding such a case on affidavits.
4. In view of this legal position, the question that falls to be considered is whether the order passed by the Magistrate is bad in law. It may be incidentally mentioned that whenever the Code permits decision of a matter on receipt of affidavits, specific provision has been so made. Section 145(4) of the Code empowers a Magistrate holding an enquiry 'to peruse the statements, documents and affidavits, if any'. The law gives discretion to the Magistrate to receive affidavits in evidence instead of examining witnesses as in a regular trial. It is therefore clear that the procedure followed by the Magistrate is in contravention of the express provisions contained in Section 488(6) of the Code.
5. In this context, it may be argued that the contravention of law by the Magistrate is merely an error or irregularity which can be cured under Section 53/ of the Code. Section 537 does not apply to an infringement of statutory requirements; it only applies to errors, omissions or Irregularities of a technical nature which may occur by accident or oversight in the course of proceedings conducted in the mode prescribed by a statute.
As was held in Anil Ranjan Sen v. Smt. Anuprama Sen, 1959 Cri LJ 776: (AIR 1959 Tripura 26) if in conducting a trial the Judge adopts a procedure which is a departure from the authorised procedure, it would amount to a violation of the law, which cannot be cured by Section 637 of the Code.
In Venkatrao v. Rukminibai, AIR 1954 Hyd 178 it has been laid down that the direction in Sub-section (6) of Section 488 is peremptory and that the conduct of the proceedings in the absence of the husband, without the Magistrate satisfying himself that the husband was wilfully neglecting to attend the Court, was in contravention of the procedure laid down in sub-section (6) and that the contravention of this express provision cannot be described as an error, omission or irregularity within the meaning of Section 537.
In that case, all the evidence for the petitioner Rukminibai had been recorded in the absence of the husband, though his Advocate was present. The evidence of witnesses for the husband was also recorded in his absence. In the Revision Petition filed before the High Court, it was contended for the petitioner that the requirements of the Sub-section had not been fulfilled and that the order should be set aside. It was contended that the procedure followed by the Magistrate was only an irregularity. The contention was rejected on the ground that the Code having enacted positively that the evidence should be taken in a certain way, it cannot be contended that the contravention of the express prevision can be described as an error, omission or irregularity.
A similar view was taken by the Chief Court at Sind in Rupchand Issardas v. Emperor, AIR 1942 Sind 32 where an order for maintenance passed on the basis of evidence not taken down in the presence of the husband without an order dispensing with his personal presence was set aside it being Illegal. Though these decisions refer to non-compliance with the first part of sub-section (6) of Section 488, the principles laid down therein apply with equal force even to contravention of the latter part which requires the recording of evidence by the Magistrate in the manner prescribed for the trial of summons-cases.
6. In the result, I hold that the order passed by the Magistrate is not valid. It is accordingly set aside and the case is remanded back to the Magistrate for disposal according to law.