1. This is a petition to revise the order of the Second Presidency Magistrate, in M.P. No. 1324 of 1961 in M.C. No. 906 of 1961 on his file, refusing to set aside the ex parte order for enhanced maintenance made against the petitioner.
2. The petitioner is alleged to have been served by registered pest in an application filed by the respondent under Section 488 Cri.P.C. The only question for consideration in this petition is whether it is proper service on which the petitioner could be set ex parte on the ground that he wilfully avoided service or wilfully neglected to attend court. It has been held in several decisions that the service of summons by registered post on the person proceeded against under Section 488 Cri.P.C. is not permissible under the Criminal Procedure Code, and that in such a case the person cannot be proceeded against ex parte under the proviso to Section 488(6) of the Criminal Procedure Code. Vide Gurnam Singh v. Mr. Datto AIR 1950 EP 20, George v. Chacko AIR 1954 Trav-Co. 116 and Revappa v. Gurushanthaw-wa AIR 1960 Mys 198.
Under Section 488(6) Cri.P.C. an inquiry under Chapter XXXVI should be made in the presence of the respondent unless his personal attendance is dispensed with and the proceedings are conducted in the presence of his pleader. There is however a proviso to the said sub-clause, that if, the magistrate is satisfied that the respondent is wilfully avoiding service or wilfully neglects to attend the court, the Magistrate may proceed to hear and determine the case ex parte. The mode of service of process to compel the appearance of a person proceeded against under the provisions of the Criminal Procedure Code either as an accused or otherwise is found in Chapter VI. Part A of Chapter VI relates to summons and it contains Sections 68 to 74 as to how summons should be served.
The mode of service by registered post is not one of the modes mentioned therein except in the single
stance of summons to an incorporated company. Thus the petitioner could not be said to have been duly served in this case, and he ought not to have been set ex parte. The learned Second Presidency Magistrate should have set aside the ex parte order at least when the petitioner approached the court with a request to set aside the ex parte order. It is unfortunate that he did not even enquire into the matter but dismissed it summarily The summons sent to the petitioner is not even in the correct form and it did not give the details of the proceedings against the petitioner. In fact a witness summons appears to have been used wrongly in this case.
3. The ex parte order passed against the petitioner is therefore set aside. The Second Presidency Magistrate is directed to take the case on file and dispose it according to law.