Ashok Prasad vs The State of Bihar and Another

M.L. Visa, J.—This habeas corpus petition has been filed for release of petitioner who has been arrested on 7.8.1995 on the basis of distress warrant and warrant of arrest issued on 1.8.1995 by Sri P.K. Dubey, the then Judicial Magistrate, Nalanda at Biharsharif for maintenance allowance and was remanded to judicial custody on 7.8.1995 and since then the operation of the remand order is being extended at regular intervals of 14 days. The brief facts of the case are that Indra Devi (respondent no. 2), wife of petitioner, filed Maintenance Case No. 9 M/87 against the petitioner u/s 125 of the Code of Criminal Procedure (in Short Cr. P.C.) claiming maintenance for herself and her two children. On 24.8.1990 Shri P.K. Dubey, the then Judicial Magistrate, Nalanda at Biharsharif, passed order in favour of wife of petitioner ordering the petitioner to pay a sum of Rs. 1500/- per month for maintenance of his wife and children. The petitioner challenged the aforesaid order before this Court in Criminal Revision No. 658 of 1990 which was admitted on 9.4.1991 with the observation that during the pendency of revision application the petitioner shall deposit a sum of Rs. 800/- per month and in case he fails to deposit the same the stay order shall stand vacated. The petitioner was not in a position to deposit a sum of Rs. 800/- per month even. The learned Magistrate on the petition filed by the wife of the petitioner issued warrant of arrest on 1.8.95 and the petitioner was arrested on 7.8.95 by police and was produced before the learned Magistrate who remanded the petitioner to judicial custody till 9.8.95 and since then the petitioner is being remanded to judicial custody after extending the order of remand at the intervals of evey 14 days. The aforesaid criminal revision application filed by the petitioner was dismissed by this Court on 23.5.98. The petitioner moved a bail petition before the learned Magistrate but his prayer for bail was rejected on 19.9.98.

A report from the court below was called for about the procedure followed by it while passing orders of remand against the petitioner. The report has been received in which it has been stated that the petitioner was arrested on 7.8.95 in execution of distress warrant and warrant of arrest issued by Shri A.K. Modi, the then Judicial Magistrate, 1st Class, in Case no. 9M/87 and the petitioner was taken into custody and was sent to jail and since then the petitioner was being remanded by Shri Modi till 30.1.96. After transfer of Shri Modi his Court was succeeded by Sri R.P. Dhyani, Judicial Magistrate 1st Class. He also continued to remand the petitioner for default of payment of maintenance allowance. From the report it appears that the different Magistrates who succeeded the Court in which case was pending went on remanding the petitioner to jail custody. It is also mentioned in the report that the Cr. Revision No. 658/90 preferred by the petitioner against the order directing him to pay maintenance allowance to his wife and children was dismissed by this Court and after remand of petitioner to jail custody his prayer for bail has already been rejected by the District & Sessions Judge, Nalanda at Biharsharif vide Bail Petition No. 1477 of 1995.

The learned lawyer appearing on behalf of the petitioner has submitted that provisions of Section 125 (3) Cr. P.C. have not been followed by the court below and petitioner has been illegally remanded to jail custody on 7.8.95 and the subsequent orders of his remand are equally illegal and the petitioner is in jail custody since 7.8.95 i.e. about more than 3 1/2 years.

The facts that a case u/s 125 Cr. P.C. was filed against the petitioner by his wife claiming maintenance allowance for herself and her two minor children and the case was decided against the petitioner in which he was ordered to pay a sum of Rs. 1500/- per month as allowance for maintenance of his wife and his two minor children are not in dispute. It is also not disputed that the petitioner failed to pay the aforesaid amount. The mode of enforcement of order of maintenance passed u/s 125 (1) Cr. P.C. has been provided in section 125(3) Cr. P.C. which reads as follows:

If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for ever breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made.

From a reading of section 125(3) Cr. P.C. it is clear that if any person who has been ordered to pay maintenance u/s 125 (1) Cr. P.C. fails without sufficient cause to comply with the order, the Magistrate may take such steps for realisation of amount which are provided for levying fines and after execution of distress warrant it is found that any amount has remained unpaid the Magistrate may sentence such person for the whole or any part of each month''s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment if sooner made. So it is clear that the Magistrate has first to satisfy that the order has not been complied by a person without sufficient cause and if he finds that there is failure of the compliance of the order without sufficient cause he will issue a distress warrant for levying the amount due for every breach of the order in the manner provided for levying fines. It is further provided that after execution of distress warrant if the Magistrate finds that any amount has remained unpaid he may sentence such person for the whole or part of each month''s allowance remaining unpaid to imprisonment for a term which may extend to one month or until payment whichever is earlier. The manner provided for levying fines is prescribed u/s 421 Cr. P.C. So, two conditions before sentencing a person to imprisonment for non-payment of maintenance allowance are required. First the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid the Magistrate may sentence such person to imprisonment for a period of one month for the whole or any part of each month''s allowance remaining unpaid. In other words, if after issuance of warrant for levying the amount due in the manner provided for levying fine it is found that no amount has remained due the question of sentencing the person to imprisonment does not arise. So the Magistrate, has to see the result of execution of warrant issued for levying amount due.

In the present case, there is nothing on the record to show that before issuing distress warrant and warrant of arrest against the petitioner the Magistrate was satisfied that the petitioner was not complying the order without any sufficient cause. For the satisfaction of the Magistrate that the order was being violated without any sufficient cause either the Magistrate on an application filed by the wife of the petitioner should have issued a show cause notice to the petitioner asking to show cause why steps be not taken as provided u/s 125(3) for realisation of amount or there should have been materials before him which should have satisfied him that the petitioner was not complying the order of the court without any sufficient cause. In the present case, admittedly no notice to petitioner was given by the learned Magistrate before issue of warrant of arrest against him and there is nothing on record to show that there were sufficient materials before issue of warrant of arrest against the petitioner for satisfying him that the petitioner was not complying the order without any sufficient cause. In the present case learned Magistrate has issued distress warrant and warrant of arrest both simultaneously. The words "remaining unpaid after the execution of warrant" appearing in section 125(3) Cr. P.C. are very significant. At first instance warrant for levying the amount in the manner provided for levying the fine as contained in section 421 Cr. P.C has to be issued. After execution of warrant it has to be ascertained what amount has remained unpaid and only for the amount which remains unpaid a person can be sentenced to imprisonment by the learned Magistrate. Here the learned Magistrate without waiting for the execution of distress warrant remanded the petitioner to jail custody which is not according to the provisions of section 125 (3) Cr. P.C.

The remand of petitioner to jail custody suffers from another illegality. After the arrest the petitioner was produced before the learned Magistrate on 7.8.95 and he was remanded to jail custody till 9.8.95. Thereafter he was further remanded on 9.8.95 till 23.8.95 and again on 23.8.95 till 6.9.95 and since then the order of remand is being extended at regular intervals of 14 days. We are not sure till what time the petitioner will be continuously remanded in this case. The learned Magistrates one after another succeeding the court by which order of maintenance was passed without applying their judicial mind are going on passing the orders of remand of petitioner to jail custody. It appears that none of them ever took trouble to go through the provisions of section 125(3) Cr. P.C. Before sending a person to jail custody in non-compliance of the maintenance order passed u/s 125(1) Cr. P.C. he has to be awarded sentence which is one month for the whole or part of each month''s allowance. The report which has been received from the court below does not show that any sentence of imprisonment against the petitioner was passed and when he was first produced before the court below he was simply remanded to jail custody. Thus we find that detention of the petitioner can safely be said to be illegal.

In view of the facts stated above the order dated 7.8.95 remanding the petitioner to jail custody and subsequent orders of his remand which flow from this order can not be sustained. In the result, this writ application is allowed and the order dated 7.8.1995 and subsequent orders in respect of remand of petitioner to jail custody are hereby quashed. The petitioner will be set at liberty forthwith unless he is required to be detained in any other case. The learned Magistrate is directed to dispose of the application of respondent no. 2 in accordance with law.

R.N. Prasad, J.

I agree.