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Shashl Kumar Nayak Vs. Raj Laxmi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 103 of 1978
Judge
Reported in17(1980)DLT18
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 64, 125 and 126(2)
AppellantShashl Kumar Nayak
RespondentRaj Laxmi
Advocates: N.B. Sinha,; R.K. Nayak and ; R.K. Jain, Advs
Cases ReferredSunil Kumar Phukan v. Mt. Pratima Buragohain
Excerpt:
.....in the procedure by which he is to be served with notice or summons of the proceedings under section 488.'with respect, i wholly agree with the view taken in sunil kumar phukan (supra). (13) before discussing the facts of the case in hand i would like to point out that the whole purpose of enacting section 125 is to give immediate relief to a neglected wife or child. in my view, the service of the notice on shri ram kumar nayak, advocate, father of shri shashi kumar nayak, should be taken to be a good service on the husband. the proviso to section 126(2) provides that if the magistrate is satisfied that the persons against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the court, the magistrate may..........on one month's leave. it is written in the forwarding letter, which is on record (p. 57), that shri nayak is staying at panna with his father shri ram kumar nayak, advocate. the report on the summons is that the summons was taken for service on shri shashi kumar nayak at the house of his father shri ram kumar nayak where shri ram kumar nayak was present who informed that shri shashi kumar nayak had gone to banaras. on 25th july, 1977, the magistrate passed fresh orders for service of the summons on the husband both in the ordinary way and by registered acknowledgment due post for 3rd september, 1977. the summons was sent for service on shri nayak through the d.i.g. police sagar. the summons was again not served and fresh order for service on shri nayak was made for 12th september,.....
Judgment:

R.N. Aggarwal, J.

(1) This petition by Shri Shashi Knmar Nayak has arisen in the following Circumstances. On 20th December, 1976, the res- respondent herein, Smt. Raj Laxmi, filed an application against her husband Shri Shashi Kumar Nayak under section 125 of the Code of Criminal Procedure for maintenance. An order was made by the Magistrate for issuing summons to the husband both in the ordinary way and by registered post. The notices were not received back. On 8th February, 1977, Shri A. K. Srivastava wrote in the order that for some personal reason he did not wish to try the petition and he forwarded the papers to the Sessions Judge for transfer of the case to some other court. The case was transferred to the Court of Shri J. P. Sharma, Metropolitan Magistrate. On 1st April, 1977, the court passed an order for issuing summons to the husband both in the ordinary course as well as by registered acknowledgment due post for 7th May, 1977. Summonses were issued to the husband both in the ordinary course and by registered acknowledgment due post. The summons sent by registered post was received by Shri S. S. Rajput, Officer-in-charge, Watch, Sugar, on 7th April, 1977. The summons sent in the ordinary manner is not on the record and, thereforee, it is not possible to say what report was made on it. On 11th April, 1977 Shri S. S. Rajput returned the registered cover along with a letter which reads as under :

'YOURRegd. Letter 4613 received by S. S. Rajput Officer-in charge Watch on 7/4/77 at 14.00 hrs. for S. K. Nanak DSP(W) Sagar. Addressee not traced yet. Letter return to you with thanks.

(2) On 7th May 1977, the Magistrate passed fresh orders for service of the summons on the husband for 25th July 1977. Summons was sent for service on the husband through the Deputy Inspector General of Police, Sagar on 27th June 1977. On 12th July 1977, the Superintendent of Police, Sagar, sent the summons to Superintendent of Police, Panna for service on Shri Shashi Kumar Nayak, Deputy Superintendent of Police (Wireless) as Shri Shashi Kumar Nayak had proceeded on one month's leave. It is written in the forwarding letter, which is on record (p. 57), that Shri Nayak is staying at Panna with his father Shri Ram Kumar Nayak, advocate. The report on the summons is that the summons was taken for service on Shri Shashi Kumar Nayak at the house of his father Shri Ram Kumar Nayak where Shri Ram Kumar Nayak was present who informed that Shri Shashi Kumar Nayak had gone to Banaras. On 25th July, 1977, the Magistrate passed fresh orders for service of the summons on the husband both in the ordinary way and by registered acknowledgment due post for 3rd September, 1977. The summons was sent for service on Shri Nayak through the D.I.G. Police Sagar. The summons was again not served and fresh order for service on Shri Nayak was made for 12th September, 1977.

(3) On 12th September 1977, the wife filed an application under section 126(2) of the Code of Criminal Procedure. The wife alleged that the notice that was sent to Shri Nayak by registered post for the date 8th February 1977 was duly served upon Shri Nayak. The wife in support of her above assertion filed a letter from the Post Master which states that the registered letter dated 29th January, 1977 was delivered to the addressee on 31st January, 1977. The Post Office also sent a copy of the receipt evidencing the delivery of the letter. The wife further alleged that the husband had in divorce proceedings pending in the Court of the District Judge at Panna filed an application dated 11th April, 1977 for restraining the wife from proceeding with the application for maintenance filed at Delhi and in which the date fixed was 7th May 1977, according to the wife the above would show that the husband knew of the date 7th May, 1977 and he had intentionally not appeared in the case. Along with the application, the wife filed on record a certified copy of the application dated 11th April, 1977.

(4) Shri Brijesh Kumar, Metropolitan Magistrate, by his order dated 12th September, 1977, found that there has been service on the husband and he is intentionally avoiding to .appear in the court and passed an order for proceeding exparte against the husband.

(5) On 4th October 1977, the Magistrate allowed the application exparte and granted maintenance of Rs. 250.00 per month to the wife with effect from the date of the petition.

(6) The husband filed an application for setting aside the ex-parte order dated 4th October, 1977. The applicant alleged that no notice or summons of the petition was served upon him and thereforee, the ex-parte order should be set aside. The applicant further alleged that the Court at Delhi had no jurisdiction and also that the petitioner (wife) is a woman of loose character and she had illicit relations with other persons before marriage and that even after marriage she was caught red handed in the act of adultery with another person and, thereforee, she is also not entitled to maintenance.

(7) The above application was contested by the wife.

(8) The Magistrate by a detailed order dated 24th February 1978, found that the husband had knowledge of the proceedings and he had intentionally not appeared in the case and dismissed the application for setting aside the ex-parte order.

(9) Against the above order the husband has come in revision to this Court.

(10) I have heard the learned counsel for the parties and have also perused the record.

(11) Sections 61 to 66 in Chapter Vi of the Code of Criminal Procedure prescribe the form and the mode in which the summons is to be served on the person summoned. Section 62(2) provides that the summons shall, if practicable, be served personally on the person summoned. Section 64 provides that where the person summoned cannot, by the exercise of due diligence, be found, the summons may be served by leaving one of the duplicates for him with some adult male member of the family residing with him : the Explanationn to section 64 says that a servant is not a member of the family within the meaning of the section. Section 65 provides the procedure when service cannot be effected as provided in sections 62, 63 and 64. Section 66 lays down the procedure for service on the Government servant and it provides that where the person summoned is in the active service of the Government, the court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the court under his signatures with the endorsement required by that section. The remaining lections are not relevant for the decision of the case. Shri Sinha, learned counsel for the petitioner, contended that there was no service of the summons on the husband as contemplated in sections 62, 64 and 66 and, thereforee, the exparte order passed against him is not legal and should be set aside. There can be no quarrel with the proposition that a person summoned under the Code of Criminal Procedure has to be served in the manner provided in the aforesaid sections. But I see no legal bar to the service of the Summons on a person by registered post in addition to the prescribed mode. The whole object is to make the person summoned aware of the proceedings taken against him. I am fortified in the above view by a decision of the High Court of Gauhati in Sunil Kumar Phukan v. Mt. Pratima Buragohain

(12) The facts of the cited case are that the respondent therein Mt. Pratima Buragohain filed an application against the petitioner therein for maintenance under section 488 Criminal Procedure Code Twice notice was issued but was not returned after service. The Magistrate ordered for service of the notice by registered post through the Superintendent of Police, Nowgong under whom the petitioner therein was serving as Sub-Inspector of Police. The notice was served and the postal acknowledgment receipt was received. The petitioner therein did not put in appearance and the Magistrate proceeded exparte and passed an order fixing maintenance. On 19th December, 1969, the petitioner therein filed an application for setting aside the ex-parte order which was dismissed by the Magistrate as barred bylimitation. The husband filed a revision petition in the High Court against the above order. It was contended on behalf of the petitioner that the Code of Criminal Procedure does not provide for service of summons by registered post. His Lordship while dealing with the above contention observed as under :

'THEhusband has a right to be informed of the case and be heard before any order is passed against him in the proceedings under section 488, but he has no vested right in the procedure by which he is to be served with notice or summons of the proceedings under section 488.'

With respect, I wholly agree with the view taken in Sunil Kumar Phukan (supra).

(13) Before discussing the facts of the case in hand I would like to point out that the whole purpose of enacting section 125 is to give immediate relief to a neglected wife or child. The evidence in proceedings under section 125 has to be recorded in the manner prescribed for summons cases. Notice was issued to the husband by registered post acknowledgment due for 8th February 1977 but it was not received back. Fresh notice was issued to the husband both in the ordinary way and by registered post for 7th May, 1977 but were received back unserved. I have in the earlier part of the judgment stated in detail the steps that were taken to serve the husband and I need not mention them over again.

(14) The wife in her application under section 126(2) dated 12th September, 1977 stated that the notice issued to the husband by registered post for 8th February, 1977 was duly served upon him. She in support of her assertion placed on record the letter received from the postal department and the receipt evidencing the delivery of the registered letter to the addressee. The husband in the application for setting aside the ex-parte order has made a general statement that no notice was served upon him but has not specifically denied the averment made by the wife in the application that the notice sent by registered post for 8th February, 1977 was served upon the husband. I ana inclined to accept the averment of the wife that the notice issued to the husband for 8th February, 19 77 by registered post was duly served upon him.

(15) Notice was issued to the husband in the ordinary manner for 25th July, 1977. The notice was sent to the D.I.G. Police. Sagar Range, for service on the husband who is a Deputy Superintendent of Police : since the husband was on leave the Superintendent of Police Sagar sent the notice to the Superintendent of Police, Panna for effecting the service on the husband who was staying at Panna with his father Shri Ram Kumar Nayak, advocate. The report on the summons, which is at page 63 of the record shows that the summons was taken for-service on Shri Shashi Kumar Nayak to the house of his father where Shri Ram Kumar Nayak, advocate was present and he told the officer who had gone to effect service, that Shri Shashi Kumar Nayak had gone to Banaras and was likely to return in a few days.

(16) There is material on the record suggesting that the husband was deliberately keeping himself out of the way and did not allow the service to be effected on him. In my view, the service of the notice on Shri Ram Kumar Nayak, advocate, father of Shri Shashi Kumar Nayak, should be taken to be a good service on the husband.

(17) There is another aspect of the case. The proviso to section 126(2) provides that if the Magistrate is satisfied that the persons against whom an order for payment of maintenance is proposed to be made is willfully avoiding service, or willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the case ex-parte and any order so made may be set aside for good cause shown on an application made within three months from the date of the order.

(18) There is unimpeachable evidence on the record that the husband was intentionally avoiding service. An order was made on 1st April, 1977 for issuing fresh notice to the husband both in the ordinary way and by registered post acknowledgment due for 7th May 1977. The notice sent by registered post was received on 7th April, 1977 by Shri S.S. Rajput, Officer-in-charge, Watch, Sagar. Shri S.S. Rajput returned the registered envelope on 11th April, 1977 with the note 'addressee not traced yet'. I may mention here, even at the risk of repetition, that Shri Shashi Kumar Nayak is posted as Deputy Superintendent of Police at Sagar and Shri S.S Rajput must be an officer under him. The husband had filed a petition for divorce against the wife in the Court of the District Judge at Panna. On 9th April, 1977 the husband filed an application in the Court of the District Judge at Panna for an injunction restraining the wife from proceeding with the application filed by her under section 125 of the Code of Criminal Procedure in the Court of a Magistrate at Delhi. The husband has in the said application stated that the date fixed in the case is 7th May, 1977 which was the date fixed in the case at Delhi. The question arises at once as to how the husband came to know of the date 7th May, 1977 on 9th April 1977. The answer, to my mind, is straight and it is that he had seen the registered cover otherwise he could not have known of the date 7th May, 1977; The date 7th May, 1977 is mentioned on the acknowledgment due receipt, which is on the record. It is further impossible to believe that a subordinate would not know about the whereabouts of his superior who is of a rank not less than Deputy Superintendent of Police. Further, there was no need for Shri S.S. Rajput to send back the registered cover just after 4 days and he could have certainly found out Shri Nayak and given the registered letter to him, To me, it appears that the note 'addressee not traced yet' was intentionally made.

(19) The above facts leave no manner of doubt that the husband was fully in know of the proceedings and of the date fixed in the case and he was willfully avoiding the service. I would be prepared to go to the length of holding that he was also willfully neglecting to attend the court.

(20) For the reasons stated I find no sufficient reason to set aside the ex-parte order. The revision petition is dismissed in liming.


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