# J{hushi Ram Sarkar]. • April I. Nandlal Misra v. 11, L. 11-1 is,,a

- **Citation:** [1960] 3 S.C.R. 431
- **Court:** Supreme Court of India
- **Decided:** 1960
- **Case number:** Criminal Appeal No. 64 of 1958
- **Bench:** K. SuBBA RAo, J.C. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-hushi-ram-sarkar-april-i-nandlal-misra-v-11-l-11-1-is-a-1713
- **Pages:** 10

## Headnote

Maintenance-Provisions of s. 488 of the Code of Criminal
Procedure-Mandatory-Preliminary enquiry not contemplatedProceedings under Chapter XXXV I, Code of Criminal Procedure-of
civil nature-Question of paternity to be decided by the Magistrate.
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 recommen<ling 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.
The High Court rejected the Sessions Court's reference
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
1ist~ljlish his case in the manner prescribed by law.
·•
State· of Uttar
Pradesh
v.
J{hushi Ram
Sarkar].
•
April I.
Nandlal Misra
v.
11, L. 11-1 is,,a
Subba Rao J.
432
SUPREME COURT REPORTS
[1960]
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 cotnP,elling
a man to maintain his \vife 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.

## Text

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3 S.C.R. SUPREME COURT REPORTS
431
such circumstances is itself void. Neither do we
understand Mulla, J., to take the view that apart from
s. 2 L of the Act, the commitment was void because the
learned Magistrate could himself have awarded the
maximum sentence provided. We have said that
s. 21 does not take away the power of the Magistrate
if he has such power, to commit, nor affect the jurisdiction of a Court of Session to try a case committed
to it by a Magistrate empowered to do so.
Therefore
it seems to us that the learned Sessions Judge had full
jurisdiction to try the case against the respondent.
In the result we allow the appeal and set aside the
order of the High Court. The case will now go back
to the High Court to be heard on merits.
Appeal allowed.
N AND LAL MISRA
v.
K. L. MISRA
(K. SuBBA RAo and J.C. SHAH, JJ.)
Maintenance-Provisions of s. 488 of the Code of Criminal
Procedure-Mandatory-Preliminary enquiry not contemplatedProceedings under Chapter XXXV I, Code of Criminal Procedure-of
civil nature-Question of paternity to be decided by the Magistrate.
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 recommen<ling 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.
The High Court rejected the Sessions Court's reference
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
1ist~ljlish his case in the manner prescribed by law.
·•
State· of Uttar
Pradesh
v.
J{hushi Ram
Sarkar].
•
April I.
Nandlal Misra
v.
11, L. 11-1 is,,a
Subba Rao J.
432
SUPREME COURT REPORTS
[1960]
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 cotnP,elling
a man to maintain his \vife 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.
CRIMINAL APPELLATE JURISDICTION:
Criminal
Appeal No. 64 of 1958.
Appeal by special leave from the judgment and
order dated December 3, Hl56, of the Allahabad High
Court in Criminal Reference No, 159 of 1956.
N. 0. Sen, for the appellant.
0. K. Daphtary, Solicitor-General of India, Purshottam Tricumdas, G. 0. Mathur and 0. P. Lal, for the
respondent.
1960. April 1.
The J'udgment 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 Ii ves 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 g~ving 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.
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3 S.C.R. SUPREME COURT REPORTS
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 rapplicant asked for time to .adduce
further eviaence 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 f acie 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 dismissed 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-s. (6) of s. 488
of the Code.
He submitted the record to the High
CDurt Df Judicature at Allahabad recommending that
the order passed by the Magistrate be set aside and
that the Magistrate be ordered to., proceed with the
Nan dial Misra
v
I{. L. Misra
Subba Rao].
434
SUPREME COURT REPORTS
[1960]
I96o
application in accordance with law. The reference
Nandlal Misra came up for hearing before Chowdhry, J., who, on the
v.
analogy of other sections of the Code held that the
I<. L. Mism
Magistrate in holding a preliminary enquiry acted in
consonance with the general scheme of the Code and
Subba Rao J.
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 maintainability 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
r.eference. 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 tb.B 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 appella,nt 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
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3 S.C.R. SUPREME COURT REPORTS
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 ~tate 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 witnesses 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 obimrved:
".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 I 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
Nandlal Misra
v.
f{. L. Misra
Subba Rao J.
N andlal Misra
v.
K. L. Misra
S1tfJba Rao].
436
SUPREME COURT REPORTS
[l960]
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 ir\ 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 lea,rned 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 proper 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 p0wer to
make a preliminary enquiry and the concession, even
if it had been made, can only mean, in the context,
tha.t 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 pr9visions of s. 488 of the
Qode.
Chapter XXXVI of the Cod(' 9on,tlllin~ three
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3 S.C.R. SUPREME COURT REPORTS
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 J}fagistrate 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
sh:;i,11 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 un_der 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 ~eans neglects or refuses to maintain
it. It 'is suggested thi:tt unless the child is admitted by
the putative father to be his illegitimate child1 the
~6
z960
Nandlal Misra
v.
K. L. Misra
Subba Rao J.
1960
N and/al Misra
v.
J(. L. Misra
Subba Rao ].
438
SUPREME COURT REPORTS
[1960]
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 pres·cribes the procedure to be followed by the Magistrate. Under that
sub.section, all evidence under that Chapter shall be
taken in the presence of the husband or the 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. 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
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 posit.ion; 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·agairist him, it lightens the burden
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3 S.C.R. SUPREME COURT REPORTS
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 thats. 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 c~se 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 fol.
lowed by the Magistrate was permissible, to give
notice to t1ie 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 cou,ld possibly do.
The
singularity of the. method adopted by the Magistrate
does not end there. The leai.:ned Magistrate, though
he subsequently held that he could not make a preliminary enquiry as contemplated by ss. 2QO 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 tha,t " no further evidence to be led at thilj
r960
Nandiat Misra
v.
K. L. Misra
Subba Rao ].
z960
N andlal Misra
v.
K. L. Misra
Subba Rao ],
440
SUPREME COURT REPORTS
[1960]
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 ~espondent, 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 M!j>gistrate has
no concern with personalities who are parties to the
case b'efore 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 iJrder 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.
•