Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7
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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7
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