Virendra vs State of U.P.

V.D. Chaturvedi, J.—This is a revision against the order dated 15.12.1988 whereby the learned S.D.M Roorkee, district Saharanpur made his order dated 20.11.1988 absolute on the report of Constable No. 468 Kaloo Ram that the revisionist and others had refused to receive the conditional order dated 29.11.1988. Relying upon the said report of Constable Kaloo Ram, the learned Magistrate made his conditional order absolute ; hence this revision.

I have heard Sri Dinesh Kumar Pandey, holding brief of Sri G. C. Saxena, for the revisionist and the learned A.G. As. S/S Indra Pal Singh Rajpoot and A.K. Tewari.

There is nothing on record to show that the conditional order dated 29.11.1988 passed u/s 133, Cr. P.C. was served personally upon the revisionist. The impugned order shows that it was on the report dated 22.11.1988 of P.S. Manglaur that the conditional order dated 29.11.1988 was passed u/s 133, Cr. P.C. to remove the nuisance. The constable Kaloo Ram reported on 3.12.1988 that the revisionist Virendra and others had refused to receive the said order; hence upon such report, the impugned order dated 15.12.1988 was passed whereby the conditional order was made absolute. The proceedings appear to have been done in a haste. Before making the conditional order an absolute, it was incumbent upon the S.D.M. to confirm whether the order dated 29.11.1988 was served or not in accordance with provisions of Section 134, Cr. P.C.

Section 134, Cr. P.C. lays down that the conditional order shall be served upon the person against whom it is made, in the manner provided for service of a summons.

Section 62, Cr. P.C. provides that summons shall, if practicable, be served personally on the person summoned by delivering or tendering to him one of the duplicates of the summons and his signatures shall be obtained on the duplicate.

Section 64, Cr. P.C. provides that if the person summoned cannot be found, it may be served upon some adult male member of his family residing with him.

Section 65, Cr. P.C. provides that if service cannot be effected in accordance with the provisions of Sections 62, 63 and 64, the serving officer shall affix one of the duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned ordinarily resides. It also provides that thereupon the Court, after making such inquiries as it thinks fit, may either declare that the summons has been duly served or order fresh service in such manner as it considers proper.

Section 63 of Cr. P.C. relates to service of summons on corporate bodies and societies, hence it is not relevant here.

There is nothing in the impugned order to show that the service of the conditional order was made personally upon the revisionist or that the duplicate copy of the order was served upon any adult male member of the revisionist''s family nor it shows that any copy of the conditional order was affixed to any conspicuous part of the house or homestead in which the revisionist resided.

The impugned order further fails to show that the conditional order was notified by proclamation in accordance with the provisions laid down in Sub-section (2) of Section 134, Cr. P.C.

The conditional order which is not served in accordance with Section 134, Cr. P.C. cannot be made absolute u/s 136, Cr. P.C. The impugned order fails to show that the service of the conditional order was effected in accordance with Section 134, Cr. P.C. Hence the conditional order dated 29.11.1988 was wrongly made absolute by the impugned order dated 15.12.1988. The impugned order is therefore, liable to be set aside.

The revision is allowed and the impugned order dated 15.12.1988 is set aside. The learned S.D.M. concerned is desired to take measures to serve the notices upon the person concerned in accordance with Section 134, Cr. P.C. and thereafter to pass the appropriate orders afresh.

Certify copy of this judgment to the court below within a fortnight.