Kumari Lokamma Vs. Sundara Sapalya - Court Judgment

Excerpt:

.....1947.[c.a. no. 14/1947]. section 33(3): [subhash b. adi, j] scope and ambit of enquiry under held, the scope of the enquiry by the authority under section 33(3) of the act is not to re-appreciate the evidence. whether the evidence is sufficient or not, is a matter which has to be adjudicated by the tribunal in a dispute and not by exercising power under section 33(3) of the act. the question of victimization or unfair labour practice can also be considered by the authority, however, in the present case, the authority re-appreciating the entire evidence has come to the conclusion that, necessary witnesses, who ought to have been examined, have not been examined and the evidence available on record is insufficient to grant permission. that is not a scope of the enquiry under section 33(3) of the act. the scope of enquiry under section 33 is to find out whether a prima facie case is made out against the workman or not and to consider whether prima facie it can go into the question as to whether there is total lack of evidence or no legal evidence particularly when the enquiry is held as fair and proper. while exercising power, the tribunal should have considered these aspects...........court was pleased to ask the undersigned whether the respondent was willing to have a blood test. the undersigned has ascertained from the counsel for the respondent in the court below that the respondent is ready for a blood test at mangalore.5. 'blood grouping in disputed paternity cases' is dealt with in modi's medical jurisprudence and toxicology, 19th edition, at page 93. it is an important test and would go a long way in the ends of justice.6. acting under section 401 read with section 397, and also with section 482, of the criminal procedure code, i direct the magistrate to have the petitioner and the respondent examined for the blood grouping at mangalore and to submit a report to this court along with the doctor's certificate, within two months from this date.7. this criminal revision petition will be further heard after receipt of the relevant papers from the magistrate.

Judgment:

ORDER

D. Noronha, J.

1. In M. C. No. 70/73 on the file of the Judicial Magistrate First Class, Second Court, Mangalore, the application was filed under Section 488, Criminal P. C. (Old) by a child (girl), represented by her mother and guardian. The respondent was the alleged father. The applicant claimed maintenance from him at Rs. 100/- per month. The respondent disputed his paternity of the petitioner-child.

2. Evidence, both oral and documentary, was adduced. The Magistrate held that the petitioner has not proved that she is the illegitimate child of the respondent. The second sentence in paragraph 22 of the Order dated 7-6-1975 of the Magistrate reads:.......As P.W. 1 has failed to show that the petitioner is the illegitimate child of the respondent, the application filed for maintenance has to be dismissed.........

3. The Revision Petitioner here is the petitioner before the Magistrate. During the cross-examination of the respondent, (R. W. 2), the following answer appears:

I am prepared to have my blood tested.

This would indicate that both sides had in mind the blood grouping in disputed paternity cases and it is astonishing why this aspect was not pursued by either side, or at least by the Magistrate.

4. Today two memos have been filed, one by the petitioner's learned Advocate and the other by the respondent's learned advocate. The memo for the petitioner reads:

The petitioner is ready to undergo blood test and the mother would produce the child for the examination.

The memo for the respondent reads:

During the hearing of the above last week, this Hon'ble Court was pleased to ask the undersigned whether the respondent was willing to have a blood test. The undersigned has ascertained from the counsel for the respondent in the Court below that the respondent is ready for a blood test at Mangalore.

5. 'Blood grouping in disputed paternity cases' is dealt with in Modi's Medical Jurisprudence and Toxicology, 19th Edition, at page 93. It is an important test and would go a long way in the ends of justice.

6. Acting under Section 401 read with Section 397, and also with Section 482, of the Criminal Procedure Code, I direct the Magistrate to have the petitioner and the respondent examined for the blood grouping at Mangalore and to submit a report to this Court along with the Doctor's certificate, within two months from this date.

7. This Criminal Revision Petition will be further heard after receipt of the relevant papers from the Magistrate.