iminal 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
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 section 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 section 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 section 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 section 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 sections 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 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 section
6 of section 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 article 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 section 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 section 488 of the Code does not come under the purview of sections 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 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 section 488 Cr
PC 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 section 488 Cr P C did not attract the operation of the provisions made in sections 200 to 203 of the said Code and further that in pursuance of the mandatory provision in s 4886 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 section 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 sections 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 section 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 section 488 of the Code
Chapter XXXVI of the Code contains three 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 section 488 and section 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 section 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 section
6 of section 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 sections 200 to 203 of the Code do not apply to an application under section 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 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 section 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 sections 200 to 203 of the Code examined the mother of the appellant at great length and then gave her opportunity under section 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 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 sections 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


Summary:
A rationalisation scheme in the mills of the appellant com panies was agreed to by the Works Committee and a notice under section 9A of the  was given to the 365 Union of their workmen
The workmen however objected to the introduction of the scheme and the dispute was referred by the Government to the Tribunal on December 13 1957
On December 16 the management of the companies put the rationalisation scheme into operation but the workmen refused to do the additional work placed on them by the scheme
Later the same day the mills declared a lock out
Work was however resumed a few days later as a result of a settlement and a dispute arose as to whether the workmen were entitled to the payment of wages for the period during which the mills were closed Held 1 that the workmen s representatives on the Works Committee represented the workmen only for the purpose of the functions of the Works Committee and that the approval of the scheme of rationalisation by the Works Committee was not binding on the workmen or their Union
Kemp and Company Ltd vs Their Workmen  approved
2 that the introduction of a rationalisation scheme was an alteration of conditions of service to the prejudice of the workmen
3 that the alteration of conditions of service was made not when notice under section 9A of the was given but on December 16 when the rationalisation scheme was put into operation and that as it was done when the reference was pending before the Tribunal it was a contravention of section 33 of the Act
4 that the closure of the mills in the circumstances of this case by the employer amounted to an illegal lock out and that the workmen unable to work in consequence of the lock out were entitled to wages for the period of absence caused by such lock out