Bishan Singh vs Hanuman Singh

Amaresh Ku. Singh, J.—Heard the learned counsel for the petitioner as well as the learned counsel for the respondents.

In this petition the only question which deserves to be decided is whether the petitioner Bishan Singh was duly served with the notice before the hearing of the Revision Petition by the learned Addl. Sessions Judge, Nagaur, and had sufficient opportunity to defend himself within the meaning of Section 401, Cr.P.C. This also needs consideration whether the non-compliance of Section 401, Cr.P.C. has resulted in prejudice to the petitioner so as to necessitate intervention by this Court u/s 482 Cr.P.C. for the purpose of preventing the abuse of the process of the Court and securing justice to the parties. A perusal of the record of the lower Court shows that after the admission of the Revision Petition notices were ordered to be served on the non-petitioners. Bishan Singh s/o Sher Singh was implicated as non-petitioner No. 1 in the Revision Petition filed by Hanuman Singh before the learned Addl. Sessions Judge, Nagaur. The record reveals that a notice was served on one Bishan Singh who in the notice was described as Bishan Singh s/o Devi Singh. It also appears that the notice was for securing the attendence of Bishan Singh for giving evidence in the Court and not for giving him an opportunity to defend himself as a non-petitioner, in a Revision Petition Hied u/s 397, Cr.P.C. The fact that the notice which purports to have been served upon Bishan Singh does not give any information about the pending Revision Petition nor gives any notice expressely or by implication about the right to be heard u/s 401, Cr.P.C. and merely informs that it was for giving evidence shows that the notice actually sent to aforesaid Bishan Singh does not comply with the provisions of 401, Cr.P.C. It was necessary that in the notice it should have been stated that a Revision Petition was filed by Shri Hanuman Singh and in the Revision Petition Bishan Singh was non -petitioner No. 1.1 am afraid in the circumstance of the case the contention that the petitioner Bishan Singh was not given sufficient opportunity of being heard within the meaning of Section 401, Cr.P.C. cannot be rejected as groundless. Besides, the notice is addressed to Bishan Singh s/o Devi Singh whereas the father''s name of non-petitioner No. 1 Bishan Singh is Sher Singh. Father''s name is one of the most important aid for identifying the citizen because when 2 or more persons appear with the same name then identities can be distinguished from each other on the basis of the father''s name. Therefore, a mistake in writing father''s name has the consequences of misleading the process server or the person on whom it is to be served as to the identity of the person intended to be served. In the circumstances of the case when father''s name was wrongly written in the notice and there was nothing before the learned Addl. Sessions Judge to justify the conclusion that in spite of the mistake in father''s name Bishan Singh who signed the notice was in fact the same person who was shown as Bishan Singh s/o Sher Singh non-petitioner No. 1, the observation of the learned Sessions Judge that non-petitioner Bishan Singh was duly served does not appear to be based on sound reasons. In such cases the proper course is to remove the mistake by issuing a fresh notice bearing correct name and correct father''s name etc. so that the identity of the person to be served may not be shadowed by any cloud of suspicion. In the facts and circumstances of the case it must be held that notice was not duly served on the petitioner Bishan Singh s/o Sher Singh and, therefore, there was no opportunity for him to defend himself before the learned Additional Sessions Judge u/s 401, Cr.P.C. Therefore, the order dated 14-10-87, passed by the Additional District Judge, Nagaur, in Revision Petition No. 8/83 Hanuman Singh v. Bishan Singh set aside and the case is sent back to him with the direction that after giving the parties an opportunity of being heard he would decide the Revision Petition on merits. During the period between the passing of this Order and the date of hearing fixed by the learned Additional District Judge, Nagaur, the parties shall maintain status quo and on the date of hearing alter giving opportunity to the parties of being heard the learned Additional Sessions Judge shall pass such orders as he may deem fit. At the request of the parties it is directed that both the parties shall appear before the learned Additional District Judge on 4-7-96. The Registry is directed to send the record of the case to Lower Court within a fortnight and in any case a week before the date of hearing.