N.N.Sharma, J. - (1.) THIS petition under section 482 of the Code of Criminal Procedure is directed against orders dated 3-7-1980 and 23-9-1980 passed by the courts below.
(2.) THESE proceedings arose under following circumstances : It appears that proceedings under Section 133 of the Code of Criminal Procedure were initiated against petitioner on an application of opposite party no. 2, namely, Sri Ramji Saran Saxena in the competent court which were eventually transferred to learned Additional Magistrate, Bareilly. A conditional order was drawn by learned Additional Magistrate which was served on petitioner through one Hari Sumaran Lal who happens to be the younger brother of her husband. The conditional order was made absolute on 23-9-1980. Petitioner carried the matter in revision (Criminal Revision No. 249 of 1978 which was disposed of by Sri Kamal Kishore, learned VIII Additional District and Sessions Judge, Bareilly on 3-7-1980. The revision was dismissed and it was held that service on Hari Sumaran Lal constituted an effective service on Smt. Munni Devi. Against that order, this application has been filed by petitioner. An affidavit of one Suraj Pal was annexed to this petition which shows that petitioner was not served and the ex-parte order drawn against her was illegal. There is no counter-affidavit traversing the said allegations. I have heard Sri A. B. L. Gaur, learned Advocate for petitioner and Sri Rameshwar Nath, learned Additional Government Advocate for State.
(3.) OBVIOUSLY, an order under Section 133 of the Code of Criminal Procedure has to be served on the person against whom it operates. The mode of service of the order has been laid under Section 134 of the Code which reads as below : "134. Service or notification of order-(1). The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. (2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person." Learned counsel for petitioner pointed out that brother-in-law could not be treated as a member of family of petitioner on whom the service of the said order was made and no opportunity was afforded to her to appear and show cause against the said order. Since the proceedings were ex parte and operated to the manifest prejudice of petitioner, so such order could not be made absolute.;