IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.3090 OF 2016 BETWEEN:
SRI D B GAJENDRA S/O LATE DONNERA BHIMAPPA AGED ABOUT 35 YEARS, OCCUPATION-COOLI WORK, R/O INAM MUTTALLI AGRAHARA, MUCHUDI POST, SHIRALAKOPPA, SHIKARIPURA TALUK, SHIMOGA DISTRICT-577427. ... PETITIONER (BY SRI: SHIVARAJ PATIL, ADVOCATE) AND 1. MASTER PRAJWAL S/O D.B.GAJENDRA AGE-7 YEARS 2. KUM.GAGANA @ SHARA D.B.GAJENDRA AGE-4 YEARS 3. SMT. VASANTHA W/O D.B.GAJENDRA AGED ABOUT 30 YEARS RESPONDENTS NO.1 AND 2 ARE MINORS, REPRESENTED BY THEIR MOTHER RESPONDENT NO.3 i.e. SMT. VASANTHA, RESIDING AT C/O THIMMAPPA NAGATHIBELAGALU TANDA, TALLIKATTI POST, BHADRAVATHI TALUK SHIMOGA DISTRICT-577301. ... RESPONDENTS (BY SRI: SURESH SUBBAIAH, ADVOCATE) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET-ASIDE THE ORDER DATED 26.03.2016 PASSED IN CRL.RP.NO.13/2015 ON THE FILE OF THE IV ADDL. DISTRICT AND S.J., SHIMOGA (SITTING AT BHADRAVATHI) AS WELL AS THE JUDGMENT DATED 28.07.2014 PASSED IN CRL.MISC.NO.16/2014 ON THE FILE OF THE COURT OF I ADDL. CIVIL JUDGE AND JMFC, BHADRAVATHI.
THIS CRL.P COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Petition is filed seeking to set aside the order dated 26.3.2016 passed by the IV Additional District & Sessions Judge in Criminal Revision Petition No.13/2015 whereby the Sessions Judge dismissed the revision petition filed by the petitioner herein thereby confirming the order passed by the trial Court directing the petitioner herein to pay maintenance at the rate of Rs.2,000/- p.m. to respondent No.3 during her life time and Rs.1,000/- p.m. to respondents 1 and 2 respectively.
2. Heard learned counsel for the petitioner and perused the records. Counsel for respondent has not addressed any arguments.
3. The main contention of the learned counsel for the petitioner is that without service of summons on the petitioner, he was placed exparte contrary to the provisions of Section 62(2) of Cr.P.C. Even the revisional court failed to take into consideration non-service of summons which has resulted in gross injustice to the petitioner. Further, learned counsel for the petitioner contended that both the courts below have failed to note that the respondents have been awarded maintenance of Rs.4,000/- in Crl.Misc.524/2013 by the III Additional Civil Judge and JMFC Bhadravathi under Section 6(b) and 37(2C) of the Protection of Women from Domestic Violence Act. In the wake of this order both the Courts below have committed an error in directing the petitioner to pay additional maintenance to the respondents.
4. On scrutiny of the records it is noticed that there was no proper service of summons on the petitioner and the police records makes it evident that the summons was not served on the petitioners personally as required under Section 62(2) of Cr.P.C., instead it was served by way of affixture without there being any orders of the Court. The said service therefore is not in accordance with the prescribed Rules. Consequently, , the subsequent proceedings conducted by the Trial Court by placing the petitioner exparte are unjustified and cannot be sustained. In that view of the matter, the impugned order passed by the learned Magistrate in Crl.Misc.No.16/2014 and the order passed by the Revisional Court in Crl.R.P.No.13/2015 are quashed. Matter is remitted to the trial Court for consideration of the claim petition of the respondents afresh in accordance with law.
Parties are directed to appear before the learned Magistrate on 3.9.2019 without any further notice.
Sd/- JUDGE rs