N Andlal Misra v. K. L. Misra

Subba Rao J. SuBBA RAo, J.-This appeal by special leave is

directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under s. 488 of the Code of Criminal Procedure.

The appellant is a minor and Ii ves under the guar-dianship of his mother, Smt. Gita Basu. -On September 14, 1955, the appellant, through his mother, filed an application under s. 488 of the Code of Criminal Pro-cedure (hereinafter referred to as the Code) in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, Advocate-General, Uttar Pradesh, Allahabad, for maintenance alleging that he is his putative father. Without g~ving notice to the respondent, the Magistrate posted the petition for evidence on September 20, 1955. On that date, the appellant's guardian was examined and she was also cross-examined by the Magistrate at some length. After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under s. 202 of the Code and, for that purpose, he Nan dial Misra v adjourned the petition for hearing to September 26, I{. L. Misra 1955, on which date one police constable was examin-ed and the learned Magistrate made the endorsement Subba Rao]. that the applicant said that she would examine no other witness. On September 27, 1955, the appellant filed a petition before the Magistrate stating that s. 200 of the Code had no application and that no enquiry need be made before_ issuing notice to the respondent.

If, however, the Court treated the application as a complaint, the rapplicant asked for time to .adduce further eviaence in support of the application for maintenance'. On that petition the learned Magistrate ---1 made the endorsement " lead the further evidence,

please, if you like". On October 6, 1955, the guardian of the appellant examined one more witness. On that date, the learned Magistrate made in the proceeding sheet the endorsement " no further evidence to be led at this stage ". _

On October 10, 1955, the learned Magistrate made an order dismissing the application. He agreed with the petitioner's contention that ss. 200 to 203 of the Code did not apply to the application for maintenance; but he expressed the view that he should be satisfied that the petitioner had a prima f acie case before he issued notice to the respondent. He then proceeded to con-sider the evidence and came to the conclusion that he was not satisfied that the respondent was the father of Nand Lal, and on that finding he refused to issue notice of the application to the respondent, and dis-missed the application. The appellant filed a revision against that order of the learned. Magistrate to the Sessions Judge, Allahabad. The learned Sessions Judge, after considering the materials placed before the Magistrate, came to the conclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent under sub-s. (6) of s. 488 of the Code. He submitted the record to the High CDurt Df Judicature at Allahabad recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to., proceed with the I96o application in accordance with law. The reference Nandlal Misra came up for hearing before Chowdhry, J., who, on the

v. analogy of other sections of the Code held that the I<. L. Mism Magistrate in holding a preliminary enquiry acted in

consonance with the general scheme of the Code and Subba Rao J. that, therefore, the order dismissing the application

was not vitiated by any illegality or irregularity. He observed that it was conceded by. the appellant before the Magistrate that the Magistrate could hold a pre-liminary enquiry and that, therefore, it was not open to the appellant to question its propriety. He also found that every opportunity was given to the guardian of the appellant to lead such evidence as he desired to produce and that, therefore, the appellant was not prejudiced by the alleged irregularity. On the main-tainability of the reference, he held that the finding arrived at by the learned Magistrate was one of fact on the materials placed on the record and, as the Magi-strate did not act perversely or in contravention of some well-established principles of law or procedure, the learned Sessions Judge should not have made the r.eference. The learned Judge finally pointed out that the proceedings were only summary in nature and that they did not deprive the appellant of his right to seek remedy, if any, in a civil court. In the result,· the reference was rejected. The appellant by this appeal questions the correctness of that order.

Learned counsel for the appellant contends that the learned Magistrate followed a procedure not contem-plated by the Code of Criminal Procedure and that in any event he conducted the enquiry in a manner - which, to say the least, was unjust to tb.B appellant.

The learned Solicitor General, appearing for the respondent, supported the procedure adopted by the Magistrate and also the finding arrived at by him. He further contended that the appella,nt in the High Court as well as before the Magistrate conceded that the Magistrate had power to make a preliminary enquiry and that, therefore, he should not be allowed to ques-tion the validity of the enquiry for the first time before this Court.

Ordinarily, in a case like this we should have been disinclined to interfere with the order of the High Court in an appeal filed under Art. 136 of the Constitu-tion. But, this appeal discloses exceptional circum-stances which compel us to depart from the ordinary Nandlal Misra v. practice. f{. L. Misra

It is not correct to ~tate that the appellant had conceded throughout that a Magistrate can make a Subba Rao J. preliminary enquiry under s. 488 of the Code before issuing notice to the respondent. Indeed the judgment of the Magistrate discloses that on behalf of the appel-lant certain decisions were cited in support of the contention that an application under s. 488 of the Code does not come under the purview of ss. 200 to 203 of the Code. Section 200 of the Code provides for the examination of the complainant and the wit-nesses present in court. Section 202 enables him to make a further enquiry before issuing notice. Section 203 empowers him to dismiss a petition, if in· his judg-ment no sufficient ground for proceeding with the case has been made out. The contention raised by the appellant, therefore, can only mean that the Magi-strate cannot make a preliminary enquiry in the man-ner contemplated by the said provisions. Indeed, the Magistrate accepted this contention; but he obimrved: ".But, as the learned counsel submit, I have to be satisfied that a notice under s. 488 Cr. P.C. should issue to the opposite party before I issue it and that, there-fore, all that has come on record as yet is admissible for consideration of the question whether the notice should be issued or not". This observation did not record any concession on the part of the appellant that the Magistrate could make a preliminary enquiry. In the context of the first submission, the second sub-mission could only mean that the Magistrate could satisfy himself before issuing notice, whether the application was ex facie not maintainable or frivolous. In the revision petition filed before the Sessions Judge, the appellant raised the following ground :

" Because the court below while correctly holding that application made by the applicant under s. 488 Cr. P. C. did not attract the operation of the provisions made in ss. 200 to 203 of the said Code and further that in pursuance of the mandatory provision in s. 488(6) all evidence under

Chapter XXXVI of the said Code shall be taken in the presence of the opposite party, has erred in law N andlal Misra in directing evidence to be led under s. 200 Cr .P. C.

v. and in considering the said evidence has usurped a K. L. Misra

jurisdiction not vested in it by law."

S1tfJba Rao]. The judgment of the learned Sessions Judge also

disclosed that this point was , raised before him. Though the learned Sessions Judge accepted the contention that ss. 200 to 203 of the Code had no application, he remarked that "in this case the learned Magistrate thought it fit to satisfy himself if this was a case fit enough in which he should issue a notice." Before the learned Judge of the High Court, it does not appear that any concession, even in a limited form, was made. Chowdhry, J., observes in his judg-ment" .. .it appears that it was conceded by the learned counsel appearing for the applicant that the Magi-strate had to satisfy himself ir\ limine that a notice of the application in question should issue to the opposite party." This observation is only a reproduc-tion of what the Magistrate stated in his judgment. Learned counsel, who appeared for the appellant in the High Court, does not appear to have made any fresh concession before the High Court and we do not think that the lea,rned Judge was justified in drawing from the' observations of the Magistrate that it was conceded on behalf of the applicant that it would be a proper procedure for the court to make such a preliminary enquiry in order to' satisfy itself that notice should issue to the opposite party. As we have pointed out, the main contention of the petitioner throughout was that the Magistrate had no p0wer to make a preliminary enquiry and the concession, even if it had been made, can only mean, in the context, tha.t the Magistrate could satisfy himself whether, on the allegations in the petition, it was a frivolous petition.

The first question is whether s. 488 of the Code contemplates any preliminary enquiry on the part of a Magistrate before he could issue notice to the opposite party. The answer to this question turns upon the construction of the pr9visions of s. 488 of the Qode. Chapter XXXVI of the Cod(' 9on,tlllin~ three provisions. The heading of the Chapter is "Of The z960 Maintenance of Wives and Children". The relevant provisions read : Nandlal Misra v. Section 488. (1) If any person having sufficient K. L. Misra means neglects or refuses to maintain his wife or J. his legitimate or illegitimate child unable to main-Subba Rao tain itself, the District Magistrate, a Presidency, Magistrate, a Sub-divisional Magistrate or a Magi-strate of the first class may, upon proof of such neglect or refusal, order. such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the J}fagistrate from time to time directs.

x x x (6) All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader, and sh:;i,11 be recorded in the manner prescribed in the case of summons-cases :

x x x Section 489 provides for the alteration in the allow-ance under s. 488, and s. 490 prescribes the procedure for the enforcement of the order of maintenance. The relief given un_der this Chapter is essentially of civil nature. It prescribes a summary procedure for com-pelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are not final and the parties can legitimately agitate their rights in a civil court. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be follow-ed and provides for the enforcement of the decision of the magistrate. Under s. 488, so far as it is rele-vant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient ~eans neglects or refuses to maintain it. It 'is suggested thi:tt unless the child is admitted by the putative father to be his illegitimate child1 the 1960 magistrate has no power to make an order for pay-N and/al Misra ment of maintenance. This argument, if accepted,

v. would make the entire section nugatory. The basis of J(. L. Misra an application for maintenance of a child is the pater-

nity of the child irrespective of its legitimacy or Subba Rao ]. illegitimacy. The section by conferring jurisdiction

on the magistrate to make an allowance for the main-tenance of the child, by necessary implication,. confers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the court, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub-s. (6) of s. 488 is manda-tory in form and in clear terms it pres·cribes the pro-cedure to be followed by the Magistrate. Under that sub.section, all evidence under that Chapter shall be taken in the presence of the husband or the father, as the case may be, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word " all " with which the sub-section opens emphasizes the fact that no evidence shall be taken in the absence of the father or his pleader. It is conceded that ss. 200 to 203 of the Code do not apply to an application under s. 488 of the Code. As the proceedings are of a civil nature, the Code does not contemplate any preliminary enquiry. When the terms are clear, there is no scope for draw-ing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if no preliminary en-quiry be held, even in a blackmailing action notice will have to go to the respondent. There is nothing incongruous in this posit.ion; for, if a suit is filed in a civil court for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry. We are not impressed by the argument that the sub-section itself is intended only for the benefit of the respondent. It appears to us that notice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence is taken·agairist him, it lightens the burden of the petitioner, for an honest respondent may admit r960 his paternity of the child, if that was a fact and may contest only the quantum of maintenance. We, there-Nandiat Misra fore, hold thats. 488 of the Code does not contemplate v. K. L. Misra a preliminary enquiry before issuing a notice, but lays down that all evidence under that Chapter should be Subba Rao taken in the presence of the respondent or his pleader, indicating thereby that one enquiry only should be held after notice.

The more objectionable feature in this c~se is that the Magistrate followed a procedure, which is, to say the least, unjust to the appellant. The appellant's guardian was examined by the Magistrate, and she related the circumstances that led to her illicit inti-macy with the respondent; she has stated in what circumstance the intimacy commenced. She filed copies of the notices sent by her, through an advocate, by registered post to the respondent demanding main-tenance and stated that she received the acknowledg-ments but the respondent did not think it fit to reply.

She filed a photograph wherein she and the respondent were seated on chairs with the appellant standing between them. A servant was also examined, who deposed that she had seen the respondent visiting the appellant's mother at odd hours. This evidence, ordi-narily, would be sufficient, even if the procedure fol.

lowed by the Magistrate was permissible, to give notice to t1ie respondent. But the learned Magistrate cross-examined the mother of the appellant at great length. The cross-examination discloses that the Magistrate had either uncommon powers of intuition or extraneous sources of information, for he elicited so many minute details of her life that only an advocate well instructed in his brief cou,ld possibly do. The singularity of the. method adopted by the Magistrate does not end there. The leai.:ned Magistrate, though he subsequently held that he could not make a preli-minary enquiry as contemplated by ss. 2QO to 203 of the Code, examined the mother of the appellant at great length and then gave her· opportunity under s. 202 of the Code to produce other evidence. After examining two more witnesses, the learned Magistrate ordered tha,t " no further evidence to be led at thilj z960 stage ''. This order indicates that the learned Magis-

trate prevented the appellant at that stage to examine N andlal Misra other witnesses. Even if a liberal meaning was given

v.

K. L. Misra to the terms of the order, it would mean that at that

time the Magistrate was inclined to give notice to the Subba Rao ], respondent but changed his mind subsequently.

Thereafter, the Magistrate considered the evidence and delivered a judgment holding that the paternity of the appellant had not been established. While there was uncontradicted evidence sufficient for the Magistrate to give notice to the ~espondent, he recorded a finding against the appellant before the entire evidence was placed before him. While accept-ing the contention of the appellant that the procedure under ss. 200 to 203 of the Code did not apply, in fact he followed that. procedure and converted the preli-minary enquiry into a trial for the determination of the question raised. Indeed, he took upon himself the role of a cross-examining counsel engaged by the respondent. The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is not warranted by the Code of Criminal Pro-cedure, and to make an unjudicial approach to the case of the appellant. In the courts of law, there cannot be a double-standard-one for the highly placed and another for the rest: the M!j>gistrate has no concern with personalities who are parties to the case b'efore him but only with its merits.

After carefully going through the entire record, we are satisfied that the appellant was not given full opportunity to establish his case in the manner pre-scribed by law. We should not be understood to have expressed any opinion on the merits of the case ; they fall to be considered on the entire evidence which may be produced by the appellant in the presence of the respondent or his pleader, as the case may be.

In the result, the iJrder of the High Court is set aside and the reference made by the Sessions Judge is accepted and the application is remanded to the Court of the Magistrate, First Class, Allahabad, for disposal according to law.

Appeal allowed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 64 of 1958.

Appeal by special leave from the judgment and order dated December 3, Hl56, of the Allahabad High Court in Criminal Reference No, 159 of 1956.

N. 0. Sen, for the appellant.

0. K. Daphtary, Solicitor-General of India, Pur-shottam Tricumdas, G. 0. Mathur and 0. P. Lal, for the respondent.

1960. April 1. The J'udgment of the Court was delivered by ·