Case ID: 876

Judgment:
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. 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 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	 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 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:
The appellant who was a minor filed an application by his mother as his guardian under section 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 section 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 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.