N ANDLAL MISRA versus K. L. MISRA

Citation: [1960] 3 S.C.R. 431 · Decided: 01-04-1960 · Supreme Court of India · Bench: K. SUBBA RAO · Disposal: Appeal(s) allowed

Judgment (excerpt)

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3 S.C.R. SUPREME COURT REPORTS 
431 
such circumstances is itself void. Neither do we 
understand Mulla, J., to take the view that apart from 
s. 2 L of the Act, the commitment was void because the 
learned Magistrate could himself have awarded the 
maximum sentence provided. We have said that 
s. 21 does not take away the power of the Magistrate 
if he has such power, to commit, nor affect the juris-
diction of a Court of Session to try a case committed 
to it by a Magistrate empowered to do so. 
Therefore 
it seems to us that the learned Sessions Judge had full 
jurisdiction to try the case against the respondent. 
In the result we allow the appeal and set aside the 
order of the High Court. The case will now go back 
to the High Court to be heard on merits. 
Appeal allowed. 
N AND LAL MISRA 
v. 
K. L. MISRA 
(K. SuBBA RAo and J.C. SHAH, JJ.) 
Maintenance-Provisions of s. 488 of the Code of Criminal 
Procedure-Mandatory-Preliminary enquiry not contemplated-
Proceedings under Chapter XXXV I, Code of Criminal Procedure-of 
civil nature-Question of paternity to be decided by the Magistrate. 
The appellant who was a minor filed an application by his 
mother as his guardian' under s. 488 of the Code of Criminal· 
Procedure in the Court of the City Magistrate, Allahabad, pray-
ing for an order against the respondent, for maintenance alleging 
that he was his putative father. The Magistrate summarily 
dismissed the appellant's application without issuing notice to 
the respondent as required by s. 488, Criminal Procedure Code. 
The Court of Session in revision against the Magistrate's order 
came to the conclusion that it was a fit case in which the Magi-
strate ought to have issued summons to the respondent and 
submitted the record to the High Court recommen<ling that the 
order passed by the Magistrate be set aside and that the Magi-
strate be ordered to proceed with the application in accordance 
with law. 
The High Court rejected the Sessions Court's reference 
and refused to certify that the case was a fit one for appeal to 
the Supreme Court. On appeal by special leave : 
Held, that the appellant was not given full opportunity to 
1ist~ljlish his case in the manner prescribed by law. 
·• 
State· of Uttar 
Pradesh 
v. 
J{hushi Ram 
Sarkar]. 
• 
April I. 
Nandlal Misra 
v. 
11, L. 11-1 is,,a 
Subba Rao J. 
432 
SUPREME COURT REPORTS 
[1960] 
Section 488 of the Code of Criminal Procedure does not 
contemplate a preliminary enquiry before issuing a notice but 
lays down that all evidence under that section should be taken 
in the presence of the respondent or his pleader indicating there-
by that one enquiry only should be held after notice. 
Sub-section (6) of s. 488 is mandatory in form and in clear 
terms it prescribes the procedure to be followed by the Magi-
strate. It is the duty of the Court, before making the order, to 
find definitely, though in a summary manner, the paternity of 
child. 
Chapter XXXVI of the Code of Criminal Procedure is a 
self-contained one and the relief given under it is essentially of 
a civil nature. It prescribes a summary procedure for cotnP,elling 
a man to maintain his \vife or children. 
The findings of a 
Magistrate under this chapter are not final and the parties can 
legitimately agitate their rights in a civil court. 
CRIMINAL APPELLATE JURISDICTION: 
Criminal 
Appeal No. 64 of 1958. 
Appeal by special leave from the judgment and 
order dated December 3, Hl56, of the Allahabad High 
Court in Criminal Reference No, 159 of 1956. 
N. 0. Sen, for the appellant. 
0. K. Daphtary, Solicitor-General of India, Pur-
shottam Tricumdas, G. 0. Mathur and 0. P. Lal, for the 
respondent. 
1960. April 1. 
The J'udgment of the Court was 
delivered by 
· 
SuBBA RAo, 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. 488 of the Code 
of Criminal Procedure. 
The appellant is a minor and Ii ves under the guar-
dianship of his mother, Smt. Gita Basu. -On September 
14, 1955, the appellant, through his mother, filed an 
application under s. 488 of the Code of Criminal Pro-
cedure (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 g~ving notice 
to the respondent, the Magist

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