SUBBA RAO -
(1.), 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. 438 of the Code of Criminal Procedure.
(2.)THE appellant is a minor and lives under the guardianship of his mother, Smt. Gita Basu. On 14/09/1955, 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 giving notice to the respondent, the Magistrate posted the petition for evidence on 20/09/1955. On that date, the appellant's guardian was examined and she was also cross-examined by the Magistrate at some length. 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 26/09/1955, on which date on police constable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine no other witness. On 27/09/1955, 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 applicant asked for time to adduce further evidence 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 6/10/1955, 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 10/10/1955, 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 facie 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 Court of Judicature at Allahabad recommending 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 reference came up for hearing before Chowdhry, J., who, on the analogy of other sections of the Code held that the Magistrate in holding a preliminary enquiry acted in consonance with the general scheme of the Code and 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 reference. 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 the appellant.
(3.)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 appellant 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 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.