KABINDRA NARAIN SINGH Vs. STATE

JUDGEMENT

(1.) The appellant, Kabindra Narain Singh, has presented this appeal against a judgment of Agarwala, J., a Judge of this Court, imposing a fine of Rs. 250/- on the appellant in a proceeding for contempt of Court.

(2.) The facts giving rise to the proceeding are that the appellant was summoned to give evidence on behalf of the propounder of a will in a testamentary case pending before this Court. The genuineness of the will was questioned by the daughters of the alleged testator who had entered caveats. The said will purported to bear the signature of the appellant as an attesting witness; the date under the signature being the 25th of September, 1941, whereas the will purports to have been executed a couple of days earlier on the 23rd of September, in the presence of a number of other attesting witnesses. Evidently, therefore, the appellant was said to have attested on acknowledgment of execution of the document. In that connection summons to the appellant was issued by this Court on the 24th of October 1945, the hearing having commenced on the 22nd, and the summons required the attendance of the appellant on the 29th. The summons, however, returned unserved with a note by the peon which was to the effect that the peon had gone to Rajipur and met the appellant there, and the appellant having taken the summons and having read the same refused to grant a receipt therefor; in consequence a copy of the summons was hung up on the north facing bungalow of the appellant. The date on which the summons appears to have been presented to the appellant is the 28th of October 1945, and the report appears to bear the signature of the local daffadar as an attesting witness. The alleged signature of the daffadar is in pencil and is now almost indistinct. The report does not expressly indicate who had accompanied the peon as an identifier at the time of the service; but the evidence is that the peon had gone to Rajipur in the company of Jagmohan Lall, the scribe of the questioned will. In view of this report a notice was issued on the appellant to show cause why he should not be committed for contempt of the summons served on him on the 28th October 1945, to attend this Court as a witness on the 29th of October 1945, and for his failure to comply with the order of the Court. The appellant showed cause in which he stated that no summons had been served on him to attend this Court in connection with the above testamentary case, and that the report of the peon to the contrary was entirely false. The appellant further stated, that he was 58 years of age and was a chronic patient of sciatica and lumbago and had been operated upon twice, rendering his movements difficult. He further pointed out that Rajipur where the summons purports to have been served was in the district of Champaran 10 miles away from the nearest railway stations, namely, Motipur and Meshi, intercepted by a river; and even if the appellant had been served with the summons on the 28th of October, 1945, it would have been extremely difficult for him to appear in Court on the 29th of October. He accordingly prayed that the proceedings against him should be discharged as he had not committed any disobedience or contempt of the orders of this Court.

(3.) The learned Judge, after haying taken evidence in the case and after hearing the parties, came to the conclusion that the summons had been served on the appellant which he deliberately refused to obey. He accordingly passed the order under appeal.