(1.)ON May 22, 1967, Mithu Singh initiated proceedings under sec. 133, Cr. P. C. in the Nyaya Panchayat, Lakhmisar, Police Station, Suratgarh, with the allegation that in the village Hasaliya Gurdayal Singh had set-up a floor-mill in the midst of populated area, causing nuisance to the inhabitants of the place. Since the matter did not fall within the jurisdiction of the said Panchayat, it was transferred to the court of Sub-Divisional Magistrate, Hanumangarh, on July 19, 1967. The said Magistrate after taking necessary proceedings passed an order on July 27, 1967, directing Gurdayal Singh to remove the nuisance and further requiring him that if he had any objection to such removal, the same could be submitted within 10 days. A notice of that order was issued by the court, but the same could not be served upon Gurdayal Singh as he was not available at his residence. The process-server pasted a copy of the notice at the residence of Gurdayal Singh. The Sub-Divisional Magistrate, considering that the notice had been properly served, made a final order, on August 16, 1967, directing Gurdayal Singh to remove the floor-mill from the village as the same was causing nuisance to the inhabitants of the place. Aggrieved against the above order, Gurdayal Singh submitted a revision-application in the court of learned Sessions Judge, Ganganagar. His main grievance was that he was not given an opportunity of hearing by learned Sub-Divisional Magistrate, Hanumangarh, and that notice of the order, passed on July 27, 1967, had not been duly served on him. Learned Sessions Judge, Ganganagar, observed in his order, dated September 15, 1967 that the petitioner Gurdayal Singh was not given an opportunity of being heard and that the service of the notice alleged to have been effected on him was defective and deserved to be set aside. He has submitted a reference to this court for passing appropriate orders in the matter. As the Sessions Judge also passed an order for staying of the execution of the order, made by Sub-Divisional Magistrate, Hanuman Garh, on August 16, 1967, Mithu Singh, non-petitioner No. 2, also submitted an application to this court that the stay order given by the Sessions Judge, being illegal, should be set aside.
(2.)THE only point which needs consideration in this case is whether the order passed by learned Sub-Divisional Magistrate, Hanumangarh, on July 27, 1967, was served upon Gurdayal Singh in accordance with law. In order to ascertain the manner in which summons may be served, it is necessary to refer to relevant portions of secs. 69, 70 and 71 of the Code of Criminal Procedure. Sec. 69, Cr. P. C. provides: "the summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to him one of the duplicates of the summons. . . . . " See. 70, lays down: "where the person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family. . . . . . " THEn sec. 71, Criminal Procedure Code, says: "if service in the manner mentioned in secs. 69 and 70 cannot, by the exercise of due diligence, be effected, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides; and thereupon the summons shall be deemed to have been duly served. " It is plain from the above quoted provisions of law that the procedure which is prescribed by sec. 71, Cr. P. C. can be made use of when service in the manner mentioned in secs. 69 and 70 cannot, by the exercise of the due diligence, be effected. In this case the report of the process-server is that Gurdayal Singh could not be found at his residence and that he had gone away to the Punjab side. He, therefore, pasted a copy of the summons on the outer portion of his residence in presence of some Motbirs. THE report of the process-server shows that service could not be effected in the manner provided by sec. 70, Cr. P. C. THEre is nothing on the record to indicate that service of the notice of the conditional order was effected. THE Magistrate, it appears, thought that if the service of the notice was effected in the manner provided by sec. 71, Cr. P. C. regardless of the question whether or not it was served in the manner prescribed by sec. 69 or sec. 70, Cr. P. C. that would be sufficient. In my judgment, this conclusion is not justified. Service of the notice of the conditional order, passed by learned Sub-Divisional Magistrate, Hanumangarh, on July 27, 1967, was defective. In support of this conclusion, reliance is placed upon Beni Madhab Sepui vs. Jadu Nath Sapui (1 ). In that case Sanderson C. J. observed that the procedure which is prescribed by sec. 71, Cr. P. C. cannot be made use of unless the service in the manner prescribed in both secs. 69 and 70, Cr. P. C. cannot be exercised with due diligence. THEre is a latter authority of the Mysore High Court reported in THE State vs. Bhimrao (2), propounding this proposition. In that case it was observed that sec. 71, Cr. P. C. , provides that service by affixing a copy of the summons to some conspicuous part of the residence of the party concerned can be resorted to only after the methods given in secs. 69 and 70, Cr. P. C. are found to be ineffective. In other words, if the methods for service of summons followed by the process-server had not been complied with in accordance with sec. 70 before resorting to service by affixing a copy of the summons to the place of the residence, service under sec. 71, Cr. P. C. , would be bad in law, and if there is no proper service of the summons, the ex parte order passed by the Court cannot be held to be valid.
Learned counsel for Mithu Singh drew my attention to the authority of the Madras High Court reported in Queen Empress vs. Narayan (3 ). In that case the conditional order made under sec. 133, Cr. P. C. was not served personally on the person concerned nor was any step taken under sec. 70, Cr. P. C. yet the High Court held that service in the mode prescribed in sec. 71, was legal in the special circumstances of the case. The observation made by the High Court of Madras appears to me to be obiter dicta. No specific point on the subject in issue was raised or argued before the learned Judges of the Madras High Court and, therefore, it cannot be said that authoritative pronouncement was made by them in this regard. Thus, the Madras decision cannot be availed of by party No. 2.
Considering the impugned order of the learned Sub-Divisional Magistrate, Hanumangarh, in that light, I have no hesitation in holding that the order passed by the learned Sub-Divisional Magistrate, is bad in law and has, therefore, to be set aside.
The reference is accordingly allowed, the order passed by learned Sub-Divisional Magistrate, Hanumangarh, on August 16, 1967, is quashed and the case is remitted to his court for complying with the relevant provisions of Chapter VI of the Code of Criminal Procedure and disposing of the case expeditiously in accordance with law. This order also disposes of S. B. Criminal Misc. Application No. 797 of 1967 filed by Mithu Singh. .