Legality of ex-parte order passed by Magistrate proceeding ex-parte.

Criminal Revision Case No. 543 of 1958 is filed against the order of the Third Presidency Magistrate passed in M.P. No. 332 of 1957, granting maintenance to the respondents at Rs. 460 per month by the petitioner herein; and Crl.Rev. Case No. 544 of 1958 is against the order of the same Magistrate in M.P. No. 213 of 1958, refusing to set aside the ex parte order of maintenance passed in favour of the respondents.

The petitioner is in the employ of the Government of India as Charge d’ Affaires, Indian Embassy at Santiago, Chile, South America. He married the mother of the respondents, and, after giving birth to two children on whose behalf the petition for maintenance was filed, there were divorce proceedings between the petitioner and his wife; the wife has been divorced and she has married another. The petition for maintenance was filed in Court at a time when the petitioner was serving in Baghdad as First Secretary in the Indian Embassy there. Summons were sent out on 26th November, 1957, in accordance with the provisions of section 72 of the Code of Criminal Procedure for service on the petitioner. It was received on 1st December, 1957, in the Embassy office at Baghdad. The petitioner was then working in that office and left that office on the 18th on account of his assignment as Charged’ Affaires, Chile. For some reason or other, no attempt appears to have been made to serve the summons after the 1st and before he left the station on the 18th. But the fact remains that summons was not served on him in accordance with the provisions of section 69 of the Code of Criminal Procedure. The question under these circumstances is whether it can be said that the petitioner has been served with summons on the petition for maintenance.

Section 72 of the Code of Criminal Procedure clearly lays down that:

“Where the person summoned is in the active service of the Government or of a Railway Company, the Court issuing the summons shall ordinarily send it in duplicate to the head of the office in which such person is employed; and such head shall thereupon cause the summons to be served in manner provided by section 69 and shall return it to the Court under his signature with the endorsement required by that section”.

Section 69 says that

“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”.

Now, the return of the summons is in the following terms:

“In acknowledging receipt of your letter No. R.O.M.P. 332/57, dated the 25th of November, 1957, I am directed to inform you that Mr. P.T.B. Menon has already left Baghdad for Santiago, Chile, in South America and as such the document received with your letter under reference is returned herewith” .

This is dated 18th December, 1957. It is not disputed that the petitioner left the station on the 17th. As already stated, there is nothing to indicate from this return of the summons as to why the summons could not be served personally before he left. It is not as if it was a case where it was impracticable to serve the summons personally on the person concerned. However, there is no reason to dispute the statement contained in the return namely that he had left the station and, therefore, the summons had not been served. It is from this circumstance that Mr. Chellaswami appearing for the respondents contends that the petitioner must have had knowledge of the summons having been received in the office and, he must have left with knowledge that summons had come without its being served on him, and, therefore, it amounts to service and the case falls within section 488 (6), Criminal Procedure Code (Proviso), i.e., the Magistrate is satisfied that he is wilfully avoiding service, or wilfully neglects to attend the Court, the Magistrate may proceed to hear and determine the case ex parte. The Magistrate, in this case, has held under the circumstances that the petitioner must have had knowledge and, therefor