MAHENDRA BHUSHAN SHARMA, J. - (1.) IN this miscellaneous petition under Section 482 Cr.PC the order passed by the learned Additional Sessions Judge No. 3, Jaipur City, Jaipur dated 6th November, 1984, has been challenged mainly on the ground that the learned Additional Sessions Judge, did not take into consideration the provisions of Section 68 of Cr.PC in holding that the services of the summons of the case, under Section 125 Cr.PC was proper. It is also urged that if the service of the summons under Section 125 Cr.PC is not in accordance with the law, then an application to set aside the ex parte order, if any made under the proviso to Sub -section (2) of Section 126 Cr.PC cannot be dismissed on the ground that the same came to be made after 3 months from the date of the ex parte order.
(2.) THE parties are not in dispute that the summons which were issued on the petitioner of the application under Section 125 Cr.PC which was moved by Smt. Tej Kanwar, in the court of the learned Magistrate, were not served on the petitioner in accordance with Section 68 of the Cr. PC. No doubt, there was dispute between the parties on the fact of actual service. Smt. Tej Kanwar, filed an application under Section 125, Cr.PC in the Court of learned judicial Magistrate, No. 11, Jaipur City, Jaipur for an order of Award of maintenance to her under Section 125 Cr. PC. The petitioner, her husband is a resident of Bundi and is a Patwari, posted in the district. Thus, he was residing outside the local jurisdiction of the learned Judicial Magistrate, Court. No. 11, Jaipur City, Jaipur, therefore the summons were sent through the Judicial Magistrate, Bundi for service on the petitioner. The process server made a report that the petitioner refused to take the summons on being tendered and the witnesses, who were present there in the tehsil refused to sign the endorsement. The summons were sent back to the Court of Judicial Magistrate, No. 11, Jaipur City, Jaipur but without an affidavit of the process server. The learned Magistrate, taking it to be sufficient service ordered that he will proceed to hear the case ex parte. The ex parte order has been read over by Mr. Chadda, learned Counsel for the respondent to the court and it appears that in that order the learned Magistrate, said that the service is complete as the petitioner refused to take the summons and therefore he shall proceed ex parte, recorded the evidence of the non -petitioner and made an order under Sub -section (1) of Section 125 Cr.PC that the petitioner shall pay a sum of Rs. 350/ - per month as maintenance to the non -petitioner, his wife with effect from 22nd September, 1982.
(3.) AN application to set aside the order was made on 10th August, 1983, after the period of 90 days prescribed in the proviso to Sub -section (1) of Section 125 Cr.PC which was accompanied by the application under Section 5 of the Limitation Act. The learned Magistrate, dismissed the application. A revision petition was filed by the petitioner which was dismissed.;