Court:Karnataka High Court
Bench: JUSTICE N Bhat
V.P. Shivanna vs Smt. Bhadramma on 5 February 1992
Issue of salary attachment warrant – Validity.
1. The petitioner in this case has challenged the proceedings in C. Misc. No. 3/87 on the file of Judicial Magistrate First Class (JMFC for short), Nelamangala and praying for quashing the same. The facts relevant for the disposal of this petition, briefly stated are as under :
2. Petitioner Shivanna is the husband of respondent Bhadramma. In C. Misc. No. 5/85, the JMFC, Nelamangala, by his order dated 23-9-1986 directed the instant petitioner to pay maintenance to Smt. Bhadramma at the rate of Rs. 75/- p.m. and an amount of Rs. 150/- p.m. to the child born out of Bhadramma. Since the amount was not paid by the instant petitioner as ordered by the learned JMFC, respondent Bhadramma filed an application before the JMFC under S. 125(3), Cr.P.C. for the recovery of the amount. The learned JMFC, by his order dated 23-3-1988, directed the issue of salary attachment warrant against the instant petitioner. Aggrieved by this order passed by the JMFC, the instant petitioner has approached this Court by this petition, challenging the entire proceedings leading to this said order.
3. I have heard Sri R. G. Hegde, counsel for the petitioner and Smt. Manjula Devi, counsel for respondent.
4. Sri Hegde petitioner’s counsel has placed two points for the consideration of the Court. The first point is that the certified copy of the order passed by the JMFC in C. Misc. No. 5/85 was not supplied to the instant petitioner at all, with the result, it was not possible for the instant petitioner to have taken any defence in the course of the proceedings filed by the instant respondent under S. 125(3), Cr.P.C. The second point that is pressed into service is that notice was not all given to the petitioner before passing the order in the way and manner as has been done by the learned JMFC. Pressing into service these two contentions, petitioner’s counsel contended that the order passed by the lower Court directing the issue of salary attachment and the entire proceeding as such are liable to be set at naught.
5. On the other hand, Smt. Manjula Devi, submitted to the Court that the petitioner has challenged only the order dated 23-3-1988, without challenging the orders passed by the JMFC on earlier occasions. Smt. Manjula Devi also brought to the notice of the Court that the instant petitioner was, in fact, arrested on 14-9-1987 and that he was brought before the Court and he knew that the matter was actually posted before the Court for payment of the amount. In this connection, the relevant portion of the order sheet produced in this case has been brought to my notice. It is also pointed out by the respondent’s counsel that the instant petitioner had written a letter which is seen at page 36 of the file to the effect that he will actually appear on 8-9-1987. In this view of the matter, learned counsel contended that it is too late in the day for the petitioner to contend before the Court that he had no knowledge of the proceedings before the learned JMFC. Learned counsel also invited the attention of this Court to the registered notice having been sent to the instant petitioner. Pressing into service these contentions, respondents’ counsel submitted to the Court that the order passed by the lower Court deserves to be confirmed and the present petition is liable to be rejected.
6. It is not disputed that an order for maintenance was passed under S. 125(1), Cr.P.C., against the instant petitioner. It is further seen that the instant respondent sought to execute the said order in C. Misc. No. 3/87. It is also seen from the certified copy of the order sheet in C. Misc. No. 3/87, produced before this Court, that the learned JMFC directed the issue of notice to respondent, by 4-3-1987. It appears that he was not served because, the order sheet dated 4-3-1987 directs steps to be taken. The order sheet dated 16-3-1987 discloses that the case was adjourned to 24-3-1987. The order sheet dated 24-3-1987 goes to show that steps were taken and there was a direction to issue notice to respondent through RPAD by 20-4-1987. The chronological events which took place next before the issue of registered notice are succinctly referred to hereinabove. It is seen from the order sheet dated 17-6-1987 that the notice sent by registered post which was sent to the instant petitioner was not returned. On the next date that is to say, on 6-7-1987, the learned Magistrate passed the following order :
“RPAD not returned. Issue arrest warrant as process paid on 17-6-87 to the address furnished in the memo by 10.8.”
At this juncture, it is necessary to point out here that there is nothing to show that the notices were sought to be served as provided for in the Criminal Procedure Code. It is needless to say that the Cr.P.C. is complete in the matter of procedure relating to the service of summons or for that matter, the service of notice. There is no question of notice being served either through the process server or through registered post to a person who is required to appear before the Court in connection with any of the proceedings under the Cr.P.C., including the proceeding under S. 125, Cr.P.C. In fact, this aspect is fully covered by two decisions of this Court. In the decision in Revappa v. Gurusanthawwa reported in 1960 Mys LJ 125 : (1960 Cri LJ 1107) it is pointed out by this Court that according to Sections 68 to 74 (under the old code), Cr.P.C., every summons issued by a Criminal Court under the Cr.P.C., should be signed by the Presiding Officer and served by the police. It is further pointed out that the notice contemplated in S. 488(6) is the same thing as the summons provided in S. 68, Cr.P.C. It is therefore held in the said case that, the summons in a proceeding under S. 488 issued by the Head Munshi and served by the process server is illegal. It is further pointed out that the error or irregularity in the issue of summons is not cured by S. 537 of the old Code. This Court in the decision in Bhimappa Gangappa v. Indirabai reported in 1981 (1) KLJ 353 : (1981 Cri LJ (NOC) 8), has pointed out that service of notice of application under S. 125, Cr.P.C. by registered post is illegal, since under S. 67, Cr.P.C. it has to be served by a process server or the Officer of the Court. In view of these decisions, it is clear that the issue of notice by registered post is wholly unwarranted. Under these circumstances, the question as to whether the notice actually reached the instant petitioner or whether any presumption can be drawn with reference to S. 114 (illustrations) of the Indian Evidence Act, 1872, that the notice has reached him, would not arise for consideration at all.
7. Smt. Manjulla Devi however submitted that the decision rendered in Bhimappa’s case was in the context of the notice contemplated under S. 125(1), Cr.P.C., and that therefore, the said decision does not apply to the facts of the instant case. The distinction sought to be made by the learned counsel with reference to the said decision, in my opinion, is a distinction without difference. It is necessary to notice here that in both the cases referred to hereinabove, the notice contemplated under the Cr.P.C., will have to be served in the way and manner as provided for under the provisions of Cr.P.C. It is needless to say that, having regard to the language reflected in S. 125(3), Cr.P.C. a notice will have to be read as having been provided for under the said section before any further action is taken thereunder. It is no doubt true that it is not stated in so many clear words in S. 125(3) that a notice will have to be given. In fact, Smt. Manjula Devi has not disputed the fact that a notice under S. 125(3) is necessary before having recourse to further proceedings thereunder, against the person against whom, an order for maintenance has already been passed under S. 125(1), Cr.P.C. However, what she wanted to emphasise is that a notice otherwise than through the procedure reflected under the Cr.P.C. may be permissible in the context of the notice referable to S. 125(3). I am unable to agree with her for the reasons already stated hereinabove.
8. Smt. Manjula Devi, however, wanted to have recourse to the provisions reflected in S. 87 of the Cr.P.C. to contend that in the instant case the warrant issued by the learned JMFC was wholly justifiable. S. 87 of the Cr.P.C. reads as under :
“Section 87 : Issue of warrant in lieu of, or in addition, to, summons :-
A Court may, in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest –
(a) If, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the Court sees reason to believe that he has absconded or will not obey the summons; or
(b) If at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure.”
A careful perusal of the said provision would go to show as to under what circumstances warrant can be issued under S. 87, Cr.P.C. I am indeed of the view that the order sheet of the learned JMFC produced before this Court does not even remotely indicate the circumstances reflected in S. 87 to justify the warrant contemplated under S. 87. In fact, this aspect has been made clear by this Court in the decision in Anadrao v. State of Karnataka rendered on 17-1-1992 in Cr.P. No. 112/1982. Under these circumstances, I am unable to agree with the submissions made by Smt. Manjula Devi.
9. Once when it is held that the Magistrate was required to issue notice under S. 125(3) before he proceeds further and once when it is held that the notices are required to be served in the way and manner as provided for under the provisions of Sections 61 to 68, and once when it is held that the records of the case go to show that the said provisions were not exhausted, it would follow as a matter of logical corollary, that the learned JMFC was not at all justified in directing the issue of warrant. It is true that earlier when the warrant was sent to the instant petitioner, he is shown to have sent a letter that he would appear on some date. However, it would not be a ground to contend that he should be deemed to have taken notice. Notice contemplated under S. 125(3) is a clear notice calling upon the person to comply with the order passed under S. 125(1). If after an opportunity in that behalf is given, the person against whom the order under S. 125(1) is passed does not comply with it, then only further proceedings should take place against him and not otherwise. It is further seen that in the instant case, as pointed out earlier that when the petitioner was brought under arrest, he was directed to make the payment by the next date. Smt. Manjula Devi however submitted to the Court that it is not as if the Court on its own, gave the next date for payment, but, the said date was given at the request and at the behest of the advocate for the petitioner who was represented by the Advocate at that time. It would be indeed in fitness of things to cull out the portion of the order reflected on the date 14-9-1987. The order on the said date reads as under.
“Respondent produced under warrant by P.C. 829 at 1-50 p.m. Sri C.K.R. filed power for respondent and also filed application under S. 436, Cr.P.C. prays time for surety and payment, hence the respondent is enlarged on bail on self-bond for Rs. 2,000/-, for payment by 5-10-87.”
A perusal of the said order would go to show that the person was actually brought on arrest and if in that context he makes that submission, I am indeed of the view that the same cannot be made an argument to contend that opportunity cannot be said to have been given at all. Once when it is noticed that a patent illegality was committed and once when it is also noticed that the same is not curable, I am of the view that all further proceedings would get vitiated.
10. Smt. Manjula Devi wanted to submit that from the ratio in Revappa’s case it can only be an irregularity in the context relating to an order of maintenance alone gets vitiated and, it is not possible to say that, even any irregularity committed in the context of issue of notice relating to S. 125(3) will not get vitiated. I am unable to agree with the submission made by Smt. Manjula Devi. The ratio laid down in Revappa’s case will mutatis mutandis apply to the facts of this case also. I am, therefore, of the view that the illegality committed in this case is neither curable nor cured. Neither S. 460, Cr.P.C. nor S. 465, Cr.P.C. can be called in aid in such a situation.
11. For the reasons stated hereinabove, I am of the view that the proceedings next after the application under S. 125(3) was filed by the instant respondent gets vitiated and as such is liable to be quashed.
12. In the result, the criminal petition is allowed. The proceedings from the date 24-3-1987 by which the learned JMFC directed the issue of notice by registered post acknowledgment due and the subsequent proceedings taken by the learned JMFC in C. Misc. No. 3/87 are hereby quashed. The learned JMFC is directed to proceed from the stage where he directed the issue of notice to respondent. For the sake of convenience, it is submitted at the bar that the instant petitioner and respondent would appear before the Court on 13th March, 1992. If the petitioner appears before the Court on that date, the learned JMFC is directed to give him an opportunity to show cause as to why the order of maintenance which is passed against him in C. Misc. No. 5/85 should not be recalled in the way provided under S. 125(3). If, however, the petitioner does not appear before the Court on the said date, the learned JMFC is at liberty to proceed with the matter as if the petitioner, though having been given an opportunity, has failed to avail that opportunity.
13. The petitioner is directed to appear before the Judicial Magistrate First Class, II Court, Nelamangala on 13-3-1992 at 11.00 a.m. Having regard to the fact that the matter is an old one, the learned JMFC is directed to dispose of the matter in question after following the aforesaid procedure within four months from the date on which the petitioner appears before him. Further it is seen that while the stay order was granted by this Court, the stay order was granted subject to the condition that the instant petitioner deposits certain amount with liberty to the other side to withdraw the same. It is stated at the bar that the said amount is already withdrawn by the instant respondent. It is made clear that the question of the said amount being given to the instant petitioner does not arise, unless of course, the order directing the petitioner to pay maintenance is set aside.
14. The papers which are received from the JMFC shall be sent back to the JMFC.
15. Petition allowed.
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