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PETITIONER: NANDLAL MISRA

       Vs.

RESPONDENT: K. L. MISRA

DATE OF JUDGMENT: 01/04/1960

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C.

CITATION:  1960 AIR  882            1960 SCR  (3) 431

ACT: Maintenance--Provisions  of s. 488 of the Code  of  Criminal Procedure--Mandatory-Preliminary  enquiry  not  contemplated Proceedings under Chapter XXXVI, Code of Criminal  Procedure of civil nature--Question of Paternity to be decided by  the Magistrate.

HEADNOTE: The  appellant who was a minor filed an application  by  his mother as his guardian under s. 488 of the Code of  Criminal Procedure  in the Court of the City  Magistrate,  Allahabad, praying for an order against the respondent, for maintenance alleging  that he was his putative father.   The  Magistrate summarily  dismissed  the  appellant’s  application  without issuing  notice  to  the respondent as  required  by  s.488, Criminal  Procedure Code.  The Court of Session in  revision against  the Magistrate’s order came to the conclusion  that it  was  a fit case in which the Magistrate  ought  to  have issued summons to the respondent and submitted the record to the  High  Court recommending that the order passed  by  the Magistrate  be set aside and that the Magistrate be  ordered to  proceed  with the application in  accordance  with  law. TheHighCourtrejectedtheSessionsCourt preference and  refused to  certify  that the case was a fit one for appeal  to  the Supreme Court.  On appeal by special leave : Held,  that the appellant was not given full opportunity  to establish his case in the manner prescribed by law. 432 Section  488  of  the Code of Criminal  Procedure  does  not contemplate  a preliminary enquiry before issuing  a  notice but lays down that all evidence under that section should be taken  in  the  presence of the respondent  or  his  pleader indicating  thereby  that one enquiry only  should  be  held after notice. Sub-section (6) of s. 488 is mandatory in form and in  clear terms  it  prescribes the procedure to be  followed  by  the Magistrate.  It is the duty of the Court, before making  the order,  to find definitely, though in a summary manner,  the paternity of child. Chapter  XXXVI of the Code of Criminal Procedure is a  self- contained  one and the relief given under it is  essentially of  a civil nature.  It prescribes a summary  procedure  for

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compelling  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.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 64  of 1958. Appeal  by special leave from the judgment and  order  dated December  3, 1956, of the Allahabad High Court  in  Criminal Reference No. 159 of 1956. N.   C. Sen, for the appellant. C.   K.  Daphtary, Solicitor-General of India,.   Purshottam Tricumdas, G. C. Mathur and C. P. Lal, for the respondent. 1960.  April 1. The Judgment of the Court was delivered by 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 lives under the guardianship 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 Procedure (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  giving 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. 433 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  adjourned  the petition  for hearing to September 26, 1955, on  which  date one police constable was examined and the learned Magistrate made the endorsement 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 applicant asked for  time  to  adduce further   evidence  in  support  of  the   application   for maintenance.   On that petition the learned Magistrate  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 facie  case before he issued notice to the  respondent.   He then  proceeded  to consider 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

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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  Court  of  Judicature  at   Allahabad recommending that the order passed by the Magistrate be  set aside and that the Magistrate be ordered to proceed with the 434 application  in accordance with law.  The reference came  up for  hearing  before Chowdhry, J., who, on  the  analogy  of other  sections  of  the Code held that  the  Magistrate  in holding  a preliminary enquiry acted in consonance with  the general  scheme of the Code and 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  preliminary  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  Magistrate  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  reference.   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 contemplated 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 the 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  appellant  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  question 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 435 Court in an appeal filed under Art. 136 of the Constitution. But,  this appeal discloses exceptional circumstances  which compel us to depart from the ordinary practice. It  is not correct to state that the appellant had  conceded throughout that a Magistrate can make a 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 appellant 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

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further enquiry before issuing notice.  Section 203 empowers him to dismiss a petition, if in his judgment no  sufficient ground for proceeding with the case has been made out.   The contention raised by the appellant, therefore, can only mean that  the Magistrate -cannot make a preliminary  enquiry  in the manner contemplated by the said provisions.  Indeed, the Magistrate accepted this contention; but he observed:  "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   issue it and that, therefore, 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 submission 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 436 Chapter  XXXVI  of  the  said Code shall  be  taken  in  the presence  of  the  opposite  party,  has  erred  in  law  in directing  evidence to be led under s. 200 Cr P. C.  and  in considering the said evidence has usurped a jurisdiction not vested in it by law." 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  judgment "...it  appears that it was conceded by the learned  counsel appearing  for  the  applicant that the  Magistrate  had  to satisfy  himself in limine that a notice of the  application in  question  should  issue to  the  opposite  party."  This observation  is only a reproduction 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 learned 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  pro-per 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 power to make a preliminary enquiry and the concession, even if it had been made, can only mean, in the context, that 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  provisions of s.  488  of  the  Code. Chapter XXXVI of the Code contains three

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437 provisions.   The  heading  of  the  Chapter  is  "  of  The Maintenance of Wives and Children".  The relevant provisions read: Section  488.  (1)  If any person  having  sufficient  means neglects  or refuses to maintain his wife or his  legitimate or  illegitimate  child  unable  to  maintain  itself,   the District  Magistrate,  a  Presidency,  Magistrate,  a   Sub- divisional  Magistrate  or a Magistrate 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  Magistrate 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 shall be recorded in the manner prescribed in the case of summons-cases:         x                 x                x Section  489  provides for the alteration in  the  allowance under  s. 488, and s. 490 prescribes the procedure  for  the enforcement  of the order of maintenance.  The relief  given tinder  this  Chapter is essentially of  civil  nature.   It prescribes  a  summary  procedure for compelling  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 followed and provides for the enforcement of the decision of the magistrate.  Under s. 488, so far as  it is  relevant 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  means neglects or refuses to maintain it. It  is suggested that unless the child is admitted by the  putative father to be his illegitimate child, the 56 438 magistrate  has  no power to make an order  for  payment  of maintenance.   This  argument, if accepted, would  make  the entire  section nugatory.  The basis of an  application  for maintenance  of  a  child  is the  paternity  of  the  child irrespective of its legitimacy or illegitimacy.  The section by  conferring  jurisdiction on the magistrate  to  make  an allowance  for  the maintenance 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 mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate.  Under  that subsection,  all evidence under that Chapter shall be  taken in  the presence of the husband or the father, as  the  case maybe,  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

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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 drawing  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 enquiry be held,  even  in  a blackmailing   action  notice  will  have  to  go   to   the respondent.  There is nothing incongruous in this  position; 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 against him, it lightens the burden 439 of  the petitioner, for an honest respondent may  admit  his paternity  of the child, if that was a fact and may  contest only  the quantum of maintenance.  We, therefore, hold  that s.  488  of  the Code does  not  contemplate  a  preliminary enquiry  before  issuing a notice, but lays  down  that  all evidence under that Chapter should be 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 case  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  intimacy  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  maintenance  and  stated that  she  received  the acknowledgments  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,  ordinarily,   would   be sufficient,   even  if  the  procedure  followed   by   -the Magistrate   was   permissible,  to  give  notice   to   the 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 could possibly do.  The singularity of the method adopted by the Magistrate does not end there.  The learned  Magistrate, though he subsequently held that he could not make a  preli- minary  enquiry  as contemplated by ss. 200 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 that " no further evidence to be led at this 440 stage  ". This order indicates that the  learned  Magistrate prevented  the  appellant  at that stage  to  examine  other witnesses.  Even if a liberal meaning was given to the terms of the order, it would mean that at that time the Magistrate was  inclined to give notice to the respondent  but  changed his   mind   subsequently.    Thereafter,   the   Magistrate

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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 respondent,  he  recorded a finding  against  the  appellant before  the  entire evidence was placed before  him.   While accepting 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   preliminary 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 Procedure, 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 Magistrate has no concern with  personalities who  are  parties to the case before 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 prescribed 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 order 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. 0 441