Tukaram Kunbi v. Punjabrao

1. In this case one of the parties to an inquiry under Section 145 of the Cr PC, was not served. The summons was attached to his house is his absence in Nagpur. No ‘due diligence” was used to effect personal service within the meaning of Section 71 of the Cr PC. The law for the service of a summons in criminal cases is on the same lines as the rules for the service of a summons in a civil case, and the remarks in Dwarkabax v. Macleod [1906] 2 N.L.R 63 are applicable here.

2. The elementary rule of law that both sides must be heard has been disregarded, and there has been a defect of jurisdiction similar to that in Madho Prasad v. Jaggansi A.I.R 1919 Nag. 44 , 53 I.C 615 , 20 C.R.L.J 775. As to this Court's jurisdiction to interfere in revision, I entirely agree with the remarks of Prideaux, A.J.C, in the case last cited. It is also to be observed that the remarks as to the jurisdiction of this Court in revision when the Magistrate has acted without jurisdiction, contained in Murat Singh v. Paika Bai [1904] 17 C.P.L.R 133 , 1 Cr. L.J 877, are obiter dicta. As agreed to by the District Magistrate, I set aside the Magistrate's order, and direct that proceedings be taken up de novo and proceeded with according to law.

P.N/R.K

3. Order set aside.