Kumara Pillai, J.C.
1. Claiming that she was his wife and that the second counter-petitioner was her child born of him, the first counter-petitioner filed M. C. No. 11 of 1951 in the Alleppey Division First Class Magistrate's Court against the revision petitioner for maintenance for herself and the second counter-petitioner. The learned Magistrate issued notice to the revision-petitioner through post and it was returned unserved with an endorsement that he refused to accept the same. Thereupon the Magistrate proceeded 'ex parte' against the revision-petitioner and passed an order directing him to give maintenance to the counter-petitioners.
Within the time allowed by law, the revision-petitioner appeared before the Magistrate and applied under the proviso to Clause 6 of Section 488, Criminal P.C. for setting aside the 'ex parte' order. The learned Magistrate dismissed the application holding that the case could not be re-opened at the endorsement on the notice sent from the Court was that it was refused by the revision-petitioner. This revision petition is filed against the order of the Magistrate refusing to re-open the case.
2. Under the Proviso to Clause 6 of Section 488, of Criminal P. C. any 'ex parte' order made under that section has to be set aside for good cause shown on application made within three months from the date thereof. It is admitted in this case that the application for setting aside the 'ex parte' order has been made within three months of that order. The only question for decision is whether the revision-petitioner has Shown good cause.
3. Except the bald statement on the notice issued through post that the revision-petitioner refused to accept the same there is no evidence to prove that it was taken to and refused by him. To issue notice through post is not a procedure warranted by the Code of Criminal Procedure for compelling appearance of parties in Court. The ordinary process for compelling appearance is in the first instance to issue summons under Section 68, Criminal P. C.; and when summons so issued cannot be served it is the duty of the Court to issue a warrant. When the warrant also cannot be executed the Court has to proceed under Sections 87 and 88 and issue a proclamation and attach the property of the person who is evading service of process.
In an exactly similar case : - 'Gurnam Singh v. Mt. Datto' AIR 1950 EP 20 (A), it was held:
The proceedings under Section 488 are judicial proceedings of a criminal Court and are governed by the Code. Section 68 applies to summons to accused as well as persons summoned in proceedings under the Code. The service of summons by registered post letter on the person proceeded against under Section 488 P520015.ble8 is not permitted. In such a case the person cannot be proceeded against 'ex parte' under the proviso to Section 488(6).
As the procedure prescribed in Chap. VI, Criminal P. C. for compelling appearance of parties has not been followed in this case, I hold that the learned Magistrate had no jurisdiction to determine the case 'ex parte' and that the revision-petitioner has shown good cause for setting aside the ex parte order.
4. The revision petition is therefore allowed and the order of the Magistrate dated 23-10-1951 awarding maintenance to counter-petitioners 1 and 2 and his order dated 11-3-1952 refusing to set aside the 'ex parte' order of 23-10-1951 are both set aside., M. C. No, 11 of 1951 of the Alleppey Division First Class Magistrate's Court is restored to file and the Magistrate is directed to proceed with it and dispose of the same according to law after getting the revision-petitioner's written statement and allowing both parties to adduce evidence.