Case Note & Summary
The petitioner, Ananth Kumar S C, filed two criminal revision petitions under Section 397 read with 401 of the Code of Criminal Procedure, 1973 (Cr.P.C.), challenging the order dated 27.10.2017 passed by the LXVIII Additional City Civil and Sessions Judge, Bengaluru (CCH-69) in Criminal Appeal Nos.1530/2015 and 801/2015. The Sessions Judge had dismissed the appeals and confirmed the ex parte order of maintenance granted to the respondents (the petitioner's wife and children) under Section 125 Cr.P.C. The petitioner contended that he was not served with summons in the maintenance proceedings and was not given an opportunity of hearing before the ex parte order was passed. The respondents argued that service was effected by registered post, which was sufficient. The High Court examined the record and found that the trial court had issued summons to the petitioner by registered post, but there was no acknowledgment due or proof of service. The Court noted that the requirement of service by registered post with acknowledgment due is mandatory only for proceedings under Section 138 of the Negotiable Instruments Act, 1881, and not for proceedings under Section 125 Cr.P.C. The Court held that the ex parte order was passed without proper service and without giving the petitioner an opportunity of hearing, which violated principles of natural justice. Consequently, the High Court allowed the revision petitions, set aside the impugned order, and remanded the matter to the trial court for fresh consideration after giving the petitioner an opportunity to be heard. The Court directed the trial court to dispose of the maintenance application within three months from the date of receipt of the order.
Headnote
A) Criminal Procedure Code - Maintenance - Section 125 Cr.P.C. - Ex parte Order - Service of Summons - The petitioner challenged the ex parte order of maintenance on the ground that he was not served with summons and was not given an opportunity of hearing. The Sessions Judge dismissed the appeal holding that service by registered post was sufficient. The High Court held that the requirement of service by registered post with acknowledgment due is applicable only to proceedings under Section 138 of the Negotiable Instruments Act, 1881, and not to proceedings under Section 125 Cr.P.C. The Court set aside the ex parte order and remanded the matter for fresh consideration after giving an opportunity of hearing to the petitioner. (Paras 1-10) B) Criminal Procedure Code - Maintenance - Section 125 Cr.P.C. - Opportunity of Hearing - The High Court emphasized that before passing a final order in maintenance proceedings, the court must ensure that the opposite party has been duly served and given an opportunity to be heard. Failure to do so vitiates the order. (Paras 8-10)
Issue of Consideration
Whether the order passed by the Sessions Judge confirming the ex parte order of maintenance under Section 125 Cr.P.C. is sustainable when the petitioner was not served with summons and was not given an opportunity of hearing.
Final Decision
The High Court allowed the criminal revision petitions, set aside the order dated 27.10.2017 passed by the LXVIII Additional City Civil and Sessions Judge, Bengaluru in Crl.A.No.1530/2015 and Crl.A.No.801/2015, and remanded the matter to the trial court for fresh consideration after giving the petitioner an opportunity of hearing. The trial court was directed to dispose of the maintenance application within three months from the date of receipt of the order.
Law Points
- Service of notice by registered post with acknowledgment due is mandatory under Section 138 of the Negotiable Instruments Act
- 1881
- but not for proceedings under Section 125 Cr.P.C.
- Ex parte order set aside when service of summons not proved
- Opportunity of hearing must be given before passing final order in maintenance proceedings
