The Magistrate had no jurisdiction to pass the ex parte order without service of notice in accordance with Sections 68, 69, and 70 of the Code of Criminal Procedure.

N.Imam, J.

1. This is an application in revision against the order of the learned Magistrate who has passed an ex parte order under Sec. 488 of the Code of Criminal Procedure directing the petitioner to pay a sum of Rs. 300.00 a month by way of maintenance to the opposite party.

2. The point taken before me is that the fearned Magistrate had no jurisdiction to pass the ex parte order without service of notice as contemplated under Section 68 read with Sec. 69 of the Code of Criminal Procedure. It transpires that in the Bombay Government Gazette, dated 11-4-1957, the notice of the application and the date of the hearing of the case had been published. This, of course, is no notice as contemplated under Sec. 68 read with Sec. 69 of the Code unless it can be shown that the State Government had provided that notice shall be served in this manner. I asked the learned lawyer for the opposite party whether any such provision had been made by the State Government of Bombay, and I was definitely informed that no such provision had been made. It is thus clear that mere publication of the notice in the Bombay Government Gazette cannot serve the purpose of notice as understood under Sec. 68 read with Sec. 69 of the Code of Criminal Procedure. It appears, however, that after the case was remanded by this Court, notice, perhaps under Sec. 68, was issued, for the order of the learned Magistrate dated 26-4-1957 states thus:

"No reply is received from Bombay in respect of the S. R. of the notice issued to the O. P."

What has to be proved is that not only a notice had been issued but it had been served in accordance with Sections 68 and 69 of the Code of Criminal Procedure. At this stage it would be well to refer to these sections. Sec. 68 is as follows:

"(1) Every summons issued by a Court under this Code shall be in writing, in duplicate, signed and sealed by the presiding officer of such Court, or by such other officer as the High Court may, from time to time, by rule, direct.

(2) Such summons shall be served by a police officer, or subject to such rule as the State Government may prescribe in this behalf, by an officer of the Court issuing it or other public servant.

(3) This section applies also to the police in the towns of Calcuttta and Bombay."

It will be seen, therefore, that not only the summons must issue but it must be served, in the absence of any express direction by the State Government, by a police-officer or by an officer of the Court issuing it or by any other public servant. None of these facts has been established before me. Sec. 69 provides how the summons shall be served and it is as follows:

"(1) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons.

(2) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate."

I need not refer to Sub-section (3) as it is not relevant. From the record it does not appeal that the provisions of Sub-section (1) of Sec. 69 have been satisfied. I would now refer to Section 70, which reads thus:

"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 his family, or, in a Presidency Town, with his servant residing with him; and the person with whom the summons is so left, shall, if so required by the serving officer, sign a receipt therefor on the back of the other duplicate."

3. I referred to Section 70 because it was submitted before me that the petitioner was evading service of summons, in which case it was not possible for the authorities to proceed under Section 70. From the record it does not appear that Section 70 was resorted to. It will be seen, therefore, from what I have stated above, that there has been no service of the summons as required under Section 68 or Sec. 69 or S