N.K.Bhattacharyya, J. - (1.)By this revision, the husband-petitioner has challenged the order dated 22nd November, 1974 passed by the Ld. S.D.J.M. Basirhat, 24-Parganas (north) in connection with Case No. M-128/87.
(2.)The short background of the case is that in a proceeding u/s. 125 of the Cr.P.C., the husband-petitioner herein cited the Sub-Postmaster, Katihar Post Office as one of his witnesses. Summons was duly served upon the said Sub-Postmaster, Katihar Post Office and also on the head of the Office. Both of them received the summons. In spite of receipt of summons, the Sub-Postmaster, Katihar Post Office did not appear before the court. The Learned Magistrate on a view that the case is a quasi-civil in nature, held that it is the duty of the petitioner or the party, who cited the presence of his witnesses to produce him before the court and on such finding, he refused to take further action in this matter and closed the evidence of the opposite party. This order is the subject matter of challenge before this Court.
(3.)The Learned Advocate for the petitioner Mr. G. Srivastava submitted that as the summons have been already served upon the Sub-Postmaster. Katihar Post Office and as he has ignored the summons, the court should take appropriate action or pass appropriate order in terms of Section 87 of the Cr.P.C. 1973. As the court did not do so and instead closed the evidence of the O.P. the order impugned is illegal and suffers from jurisdictional error. The Ld. Advocate for the O.P. No.1 Mr. P.N. Dubey submitted that the Ld. Magistrate has the power to fallback upon the provision of section 87 of the Cr.P.C., 1973 in case of non-compliance of the summons as has been served upon the witnesses.
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