K. C. Agarwal, J. - (1.) THIS is an application under Section 482 Cr. P. C., 1973 (which should have been under Section 561-A of the old Code), for quashing the orders of the Sub-Divisional Magistrate, Ghaziabad, dated 30-11-1973, 22-11-1975 and 29-1-1976.
(2.) IT appears that Smt. Parmeshwari, the opposite party, filed an application under Section 483 Cr. P. C. for grant of maintenance against the applicant, in the court of the Sub-Divisional Magistrate, Ghaziabad, on the assertion that the applicant had refused to keep and maintain her and had kept another woman with him, therefore, she was entited to get maintenance from the applicant, The notice was firstly sent through ordinary summons, but before it could be returned, the Sub-Divisional Magistrate directed it to be sent by registered post. The notice sent by registered post was returned by the postman with the endorsement that there was no such hotel at the address of which the notice was sent to the applicant. IT was, thereafter, that the opposite party filed an application for publication of the notice, which consequently was published in a local newspaper. Treating the publication of the notice in the newspaper as sufficient service on the applicant, the court proceeded to decide the case. As on 30-11-1973, which was the date fixed in the case, the applicant was not present, the Sub-Divisional Magistrate allowed the application ordering a maintenance allowance of Rs. 125/- per month to the opposite party. The applicant, admittedly, did not prefer any revision against this order. He subsequently filed an application for recalling the order dated 30-11-1973 on the ground that as he had neither received any notice of the proceedings launched by the opposite party nor had any knowledge or information regarding the same, therefore, the order dated 3 -11-1973 was liable to be recalled. The Sub-Divisional Magistrate allowed the application on 1212-1974 and recalled the order dated 30-11-1973 on the finding that as the applicant had not been served with the notice of the proceedings under Section 488 Cr. P. C. the said order having been passed behind the back of the applicant was liable to be recalled. It may be noted that this order dated 12-12-1974 was passed by the Sub-Divisional Magistrate without issuing any notice to the opposite party. After having come to know of the order dated 12-12-1974, the opposite party filed an application for review of the said order on the ground that the Sub-Divisional Magistrate had no jurisdiction to recall the order dated 30-11-1973. This was allowed by the Sub-Divisional Magistrate on 22-11-1975. Unfortunately, the order was passed by the Sub-Divisional Magistrate again without calling upon the applicant to file a reply to the application filed by the opposite party. Thereafter, the applicant went in revision before the learned Sessions Judge challenging that the order dated 22-11-1975 was without jurisdiction. The revision was rejected by the learned Sessions Judge. Hence, this application under Section 561-A Cr. P. C. for quashing the orders, mentioned above It is no doubt true that when the legislature intentionally has not conferred any inherent power on subordinate criminal Courts, it cannot in exercise of the supposed inherent power recall an order passed by it. Therefore, the grievance of the opposite party that the order dated 30-11-1973 could not be recalled by the Sub-Divisional Magistrate appears to be a just one. The said order was liable to be set aside also on the ground because it had been passed against the applicant without issuing any notice to him. But, on the same analogy and reasoning the order of the Sub-Divisional Magistrate dated 22-11-1975 would also be illegal inasmuch as he did not have any power to review the order dated 1212-1974 Both the orders dated 12-12-1974 and 22-11-1975 cannot stand the scrutiny of law and being without jurisdiction are liable to be recalled. 5 The question, however, arises as to whether the order dated 30-11-1973 fixing the maintenance allowance at the rate of Rs. 125/- per month payable by the applicant to the opposite party is also one which could be set aside and the Magistrate should be asked to decide the rights of the parties afresh. In that connection, it may be pointed out that the notice had not, admittedly, been received by the applicant. It is only from the publication of the notice in a newspaper that the Sub-Divisional Magistrate held that the applicant did not appear in the proceedings under Section 488 Cr P. C. despite the service of notice. Counsel for the applicant however, pointed out that the Code of Criminal Procedure did not provide for the publication of a notice in a newspaper aid, accordingly, the Sub-Divisional Magistrate was wrong in drawing the presumption of service of notice on the applicant merely because of its publication in the newspaper. The contention of the learned counsel for the applicant appears to be correct. A presumption about service could arise from publication provided the law permitted it. As there was no provision in the Code of Criminal Procedure prescribing the service of notice to be made through publication in a newspaper, the presumption could tot be drawn. Hence, the Sub-Divisional Magistrate was wrong in proceeding with the case on the basis of the above presumption and deciding the rights of the parties on 30-11-1973 on the ground that the applicant should be deemed to have been served. In this connection, reference may also be made to paragraph 8 of the written objection filed by the opposite party in which it has been alleged that the applicant although had the knowledge of the facts of the case, but he deliberately kept on evading putting in appearance in the court. This objection had not been supported by any affidavit. In the absence of any affidavit, it is not possible to rely on it and to hold that the applicant had any information or knowledge of the proceedings under Section 488 Cr. P. C. 6. The application is, accordingly, allowed. The orders of the Sub-Divisional Magistrate dated 30-11-1973, 12-12-1974, 22-11-1975 and also that of the learned Sessions Judge dated 22-1-1976 are quashed. The stay order is discharged. As the matter is pending since 1973, It is proper that the Sub-Divisional Magistrate should expeditiously decide the application filed by the opposite party under Section 488 Cr. P. C. Application allowed.;