Remanded

Samar Roy v. Mamata Namasudra

Gauhati HC7 Jan 2021Crl.Rev.P./331/2015

Case brief

AI extract

What is this about?

Gauhati High Court, in a criminal revision, set aside an impugned order rejecting an application to set aside an ex-parte maintenance order. The court held that Rule 5 requires personal service with witnesses when a person refuses the process. Held null and void service and remanded the matter to the Magistrate.

What did the court decide?

The ex-parte and impugned orders set aside. The application under Section 125 Cr.P.C. remanded to the Magistrate for decision after notice to both parties.

Samar Roy Vs Mamata Namasudra — Maintenance and Alimony | Gauhati HC (2021)

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GAHC010020952015

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THE GAUHATI HIGH COURT

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(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Rev.P./331/2015

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SAMAR ROY

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S/O LT. BABUL ROY R/O VILL- BARAIBASTI,P.O. SACHINDPUR P.S. DHALAI, DIST. CACHAR, ASSAM.

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VERSUS

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MAMATA NAMASUDRA

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D/O LT. RAJENDRA NAMASUDRA R/O VILL- NATUPUR, P.O. BARKETPUR P.S. and DIST. KARIMGANJ.

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Advocate for the Petitioner : MR.J DAS Advocate for the Respondent : MS.A DEVI

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BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI

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ORDER

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Date : 07.01.2021

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Heard learned counsel for the petitioner Mr. J. Das and the Legal Aid Counsel Ms. Anupama Devi.

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The petitioner is aggrieved by the order dated 07.07.2015 passed by the learned SDJM (S), Karimganj in Misc. Case No. 109/2011.

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It is submitted by the learned counsel for the petitioner that the respondent filed an application under Section 125 Cr.P.C., seeking maintenance. However, the notice of the said application was never served on the present petitioner (2^nd party). The learned Magistrate passed an ex-parte order of maintenance on 23.09.2011. The revision petitioner came to know about the order on 29.04.2015 while coming to Court in

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connection with another criminal case. Thereafter, the application under Section 126(2) Cr.P.C., was filed for setting aside the ex-parte order. However, the learned Judicial Magistrate by the impugned order rejected the application.

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It is apparent from the impugned order that the notice on the petitioner (2^nd party) was not served directly. However, the learned Magistrate proceeded on the presumption of deemed service in view of the facts that there was an unsigned endorsement as ‘refused’ on the envelope. Therefore, the learned Magistrate took a view that the petitioner had the knowledge of the petition under Section 125 Cr.P.C., in view of deemed service. It has also been mentioned in the order that the petitioner refused to accept the notice after reading the same by opening the envelope and such observation has been made by the learned Magistrate upon noticing the envelop in a torn condition.

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Rule 5 of the Criminal Rules and Order Chapter II provides that if a person refuses to receive the process he shall be informed verbally of its nature, for example, that it is a summon to appear before the Court as a witness or as accused or defendant and a copy of the process shall be affixed to the door of his residence in the presence of two witnesses whose names and addresses shall be mentioned in the report.

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In view of the above facts and circumstances, the impugned order dated 07.07.2015 and the ex-parte order dated 23.09.2011 passed by the learned Magistrate is set aside. Let the matter be remanded back to the learned Magistrate to decide the application under Section 125 Cr.P.C. on merit, giving opportunity of being heard to both the parties.

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The parties are directed to appear before the learned Magistrate on or before 22.02.2021. No further notice shall be given to the parties.

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Send back the records immediately.

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Comparing Assistant

Samar Roy v. Mamata Namasudra

Case brief

What is this about?

What did the court decide?

Samar Roy v. Mamata Namasudra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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