Padmanabhan v. 1.Nagajothi2.Arul Selvi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 25-09-2007CORAMTHE HONOURABLE MR.JUSTICE S.PALANIVELUCRIMINAL ORIGINAL PETITION No.28266 OF 2006Padmanabhan...Petitioner-vs-1.Nagajothi2.Arul Selvi...RespondentsPetition under Section 482 of the Code of Criminal Procedure asstated therein. For petitioner : Mr.N.ManokaranFor respondents : Mr.R.MarudhachalamurthyO R D E RThis petition has been filed to call for the records relating tothe order, dated 21.09.2006, made in C.R.P.No.76 of 2006, on the file ofAdditional District Court/Fast Track Court No.I, Erode, confirming theorder, dated 19.06.2006, made in C.M.P.No.749 of 2006 in M.C.No.44 of 2005on the file of Chief Judicial Magistrate, Erode, and set aside the same.2. Petitioner is respondent in M.C.No.44 of 2005, in which hiswife, first respondent, and, daughter, second respondent, arecomplainants, who claimed maintenance from him under Section 125 Cr.P.C.In the said case, an ex parte order was passed on 28.11.2005, on accountof non-appearance of the petitioner. Thereafter, the petitioner preferredC.M.P.No.749 of 2006 on 25.04.2006, to set aside the ex parte order andthe said petition suffered dismissal on 19.06.2006. Aggrieved over thesaid order, the petitioner carried the matter in revision before the FastTrack Court No.I, Erode, in C.R.P.No.76 of 2006, which also met with thesame fate i.e., dismissal. Hence, the petitioner is before this Courtwith this petition.3. The main contention of the learned counsel for the petitioneris that the petitioner was not at all personally served with any summonsor notice by the trial Court, namely, Chief Judicial Magistrate Court, https://hcservices.ecourts.gov.in/hcservices/ Erode, and, only on 22.04.2006, he came to know of the ex parte order and, on 25.04.2006, he filed the petition to set aside the said order, underSection 126 (2) Cr.P.C. 4. Conversely, learned counsel for the respondents wouldvehemently contend that having exhausted the remedy of revisionalproceedings before the Fast Track Court, the petitioner is precluded fromcoming to this Court in the form of original petition under Section 482Cr.P.C. and, hence, it amounts to preferring a second revision against theorder of the trial Court, which is not at all legally permissible. Insupport of his contention, the learned counsel garnered support from adecision of the Hon'ble Apex Court in Rajathi v. C.Ganesan, 1999 (II) CTC646, wherein it was held as under :"11.....In the present case, the High Courtminutely examined the evidence and came to theconclusion that the wife was living separatelywithout any reasonable cause and that she was able tomaintain herself. All this High Court did in exerciseof its powers under Section 482 of the Code whichpowers are not a substitute for a second revisionunder sub-section (3) of Section 397 of the Code. Thevery fact that the inherent powers conferred on theHigh Court are vast and would mean that these arecircumscribed and could be invoked only on certainset principles."5. The Hon'ble Supreme Court was of the opinion that petitionunder Section 482 Cr.P.C. could not be made a substitute for a secondrevision, which is prohibited by statute.6. Section 397 (3) Cr.P.C. reads that if an application underSection 397 has been made by any person either to the High Court or to theSessions Court, no further application by the same person shall beentertained by the other of them.7. But, later on, in a subsequent decision in Kailash Verma v.Punjab State Civil Supplies Corporation and another, 2005 (2) SupremeCourt Cases 571, the Supreme Court has rendered a finding to the effectthat in order to avoid serious miscarriage of justice and abuse of processof the Court, the High Court shall exercise inherent jurisdiction. Learnedcounsel for the petitioner placed much reliance upon the said decision, inwhich the following is the operative portion :"5. It may also be noticed that this Court inRajathi v. C.Ganesan, 1999 (6) SCC 326 : 1999 SCC(Cri) 1118, said that the power under Section 482 ofthe Criminal Procedure Code has to be exercisedsparingly and such power shall not be utilised as a https://hcservices.ecourts.gov.in/hcservices/ substitute for second revision. Ordinarily, when arevision has been barred under Section 397 (3) of theCode, the complainant or the accused cannot be allowedto take recourse to revision before the High Courtunder Section 397 (1) of the Criminal Procedure Codeas it is prohibited under Section 397 (3) thereof. However, the High Court can entertain a petition underSection 482 of the Criminal Procedure Code when thereis serious miscarriage of justice and abuse of theprocess of the court or when mandatory provisions oflaw are not complied with and when the High Courtfeels that the inherent jurisdiction is to beexercised to correct the mistake committed by therevisional court."8. In view of the dictum laid down by the Apex Court in theabove said decision, preferring of proceedings, invoking inherentjurisdiction of the High Court under Section 482 Cr.P.C. is not at all abar, after a revision was turned down by a revisional Court. Hence, thepresent petition is legally maintainable.9. Next is the outcry of the petitioner that he did not receiveany notice.10. It shall be stated that the particulars pertaining todespatch of process from the Court in the proceedings, further course ofcommunication and address of the petitioner are very much available in theorder passed by the Fast Track Court, as per which, on 07.10.2005, theChief Judicial Magistrate Court sent summons to the petitioner byregistered post; the registered postal cover bears an endorsement to theeffect that intimation was given to the addressee; it was retained by postoffice till 19.10.2005, for the purpose of serving upon the addressee, and, since it could not be done, the registered postal cover was returnedback to the C.J.M.Court, Erode, on 20.10.2005. The Fast Track Court hasobserved in its order that even though the registered postal cover waskept by the post office uptil 19.10.2005, the petitioner had not claimedand received the said cover and, hence, with the knowledge of the saidpost, he wilfully avoided to receive and returned back the same. 11. In this context, it is pertinent to state that the postalcover did not have the endorsement, as "refused". In the view of thisCourt, the above finding is not appropriate, for the reason that in theabsence of any proper endorsement on the postal cover as if it was refusedby the addressee, there could be no conclusion by the Court that theaddressee had wantonly avoided receipt of the same. https://hcservices.ecourts.gov.in/hcservices/

#12. Learned counsel for the petitioner would submit that incriminal cases, service of summons to a party should be effected as perSection 62, as adumbrated in Chapter VI of the Criminal Procedure Code, and, in the absence of due observance of the above said provision, it mustbe presumed that no personal service was effected on the party concerned. 13. Section 62 Cr.P.C. runs as follows :"62.Summons how served.- (1) Every summons shall beserved by a police officer, or subject to such rulesas the State Government may make in this behalf, byan officer of the Court issuing it or other publicservant.(2) The summons shall, if practicable, be servedpersonally on the person summoned, by delivering ortendering to him one of the duplicates of thesummons.(3) Every person on whom a summons is so servedshall, if so required by the serving officer, sign areceipt therefor on the back of the other duplicate."The above said provision mandates personal service of summons, ifpracticable. 14. In this connection, learned counsel for the petitioner woulddraw attention of this Court to the following decisions, which are on thesubject of service of summons :(i) S.Thulasingam v. Padmavathi Ammal, 1963 (1) Crl.L.J.546(Vol.66, C.N.170), in which it is observed as below :"Service by registered post in case ofproceedings under S.488 Criminal P.C.is not a properservice since this mode is not one of the modesmentioned in chapter VI, which relates to service ofsummons except in the single instance of summons toan incorporated company. Consequently, a person whohas been served by registered post cannot be set downex parte on his failure to appear." https://hcservices.ecourts.gov.in/hcservices/ "It has been held in several decisions that theservice of summons by registered post on the personproceeded against under S.488 Crl.P.C.is notpermissible under the Criminal Procedure Code, andthat in such a case the person cannot be proceededagainst ex parte under the proviso to S.488 (6) ofthe Criminal Procedure Code."(ii) Pahilajrai v. Jethi Bai, AIR 1959 PATNA 433 (V 46 C 123),wherein it is held as follows :"Service of notice has to be effected ascontemplated under S.68 read with Ss.69 and 70 of theCode before making an ex parte order against thehusband under S.488. Mere publication of the noticein the Government Gazette cannot serve the purpose ofnotice as understood under S.68 read with S.69 unlessprovision to that effect has been made by the StateGovernment. For, under the provisions of the saidsections not only the summons must issue but it mustbe served, in the absence of any express direction bythe State Government, by a police-officer or by anofficer of the Court issuing it or by any other publicservant. In the absence of the service of summons, the ex parte order made under S.488 is liable to beset aside." 15. It is to be observed that when there was no personal summonson the party concerned, the process of service of summons could not becompleted and there could be no presumption as to service.16. Another limb of contention of the learned counsel for therespondents is that the petition filed by the petitioner to set aside theex parte order under Section 126 (2) Cr.P.C. is not at all entertainableby the Court, since the said petition had been made out of stipulatedperiod, namely, three months from the date of the order and no sufficientcause was shown either to condone the delay or to allow the petition. 17. In this regard, it is the argument of the learned counselfor the petitioner that only on 22.04.2006, he came to know of the exparte order and immediately on 25.04.2006, he filed the petition forsetting aside the ex parte order, which contention receives a scathingattack from the side of the respondents. https://hcservices.ecourts.gov.in/hcservices/

#18. It is true that the petition to set aside the ex parte ordershould have been made within three months from the date of the ex parteorder and the proviso does not provide for filing of any such petitionafter three months from the date of the order. In short, the provisionsdo not prescribe anything for condoning the delay. In this connection, the question of filing application under Section 5 of the Limitation Acthas become academic.19. Now, it is to be found out, whether the petition could befiled within three months from the date of knowledge of the order. Infact, there was no personal service on the petitioner. Had the petitionerbeen personally served with the summons, he might be out of Court and hecould not agitate before the Court that he filed the petition within threemonths from the date of knowledge. But, the fact in this case isotherwise. In the absence of personal service of summons on thepetitioner, his version that he had knowledge of the order only on22.04.2006 has to be necessarily relied upon. Hence, he could very wellmaintain the petition, which was filed beyond the prescribed time limit ofthree months. An earlier decision of this Court in Sukhirthammal v.Subramanian, 1985 CRI.L.J.1294, supports this finding. The observation inthe said decision goes thus :"24. This question about the applicability of S.5of the Limitation Act has become academic in thepresent case since the dispute in this case is withregard to the time from which the period of limitationis to be reckoned viz., whether it would start from thedate of the ex parte order or from the date ofknowledge on the part of the respondent about the saidorder. It is to be pointed out that the learnedMagistrate himself has given a finding that there isnothing to show that the respondent was served withsummons in the maintenance proceedings, that accordingto the respondent he came to know about the ex parteorder only on 16-9-1978 and that he had taken out theapplication for setting aside the ex parte order on 28-11-1978 well within the period of three months from thedate of such knowledge. In the present revision also, the petitioner has not placed any material to show thatthe first limb of the proviso to S.126 (2) Cr.P.C. hasbeen satisfied in this case for this Court to hold thatthe period of limitation would run from the date of theorder. On the other hand, it is clear that therespondent had moved the Court below for setting asidethe ex parte order within a period of three months fromthe date of knowledge of the said order." https://hcservices.ecourts.gov.in/hcservices/

#20. To sum up, there was no personal service on the petitioner, in the absence of which, the ex parte order passed against his is liableto be set aside. Even though he knocked the door of the Court after threemonths from the date of ex parte order, he could very well maintain thepetition to set aside the ex parte order, as he has initiated proceedingswithin three months from the date of his knowledge. The present petitionalso could not be termed to be a substitute for second revision, sincethis Court has got plenary powers under Section 482 Cr.P.C., to avoidmiscarriage of justice and abuse of process of Court.21. For the foregoing reasons, this petition is allowed. Consequently, the connected Criminal M.P.No.1 of 2007 is closed.Sd/Asst. Registrar/true copy/Sub Asst. RegistrardixitTo1. The Chief Judicial Magistrate, Erode.2. The Additional District Judge, Fast Track Court No.I, Erode.1 cc To M/s.N.Manokaran, Advocate, SR.59737.CRL.O.P.No.28266 of 2006AKR(CO)RVL 03.10.2007