Raj Kumar vs Krishna Kumari and anr.

B.S. Yadav, J.

Briefly the facts are that respondent Shrimati Krishan Kumari was granted maintenance at the rate of Rs. 150/ per month vide order dated 10th December. 1982 under Section 125, Code of Criminal Procedure. That order was made effective from the date of application i. e. 11th April, 1981. She filed an execution application against her husband i.e. the present petitioner, for the recovery of Rs. 3,600/ as arrears of maintenance allowance with effect from 11th April, 198.1 to 10th April, 1983. The learned Judicial Magistrate Ist Class, Chandigarh, in whose court that application was pending, issued notice to the petitioner, who on appearance stated that he had no money to pay Holding that the petitioner had failed to comply with the order of the Court without sufficient cause, the learned Judicial Magistrate ordered that he be sentenced to imprisonment for a period of 24th months i. e. the period for which the maintenance had not been paid Feeling aggrieved against that order, the present revision petition has been filed by the husband.

2 The petition is liable to be accepted on the sole ground that the learned Judicial Magistrate did not comply with the provisions of Section 125(3) of the Code of Criminal Procedure. The relevant portion of the said provision reads as follows:

"125 (3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate way, for every breech of the order, issue a warrant for levying the amount due in the manner provided for levying fires, 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."

Similar provision of the old Code of Criminal Procedure came up for interpretation in Dalip Singh v. Smt. Balwinder Kaur and others, 1973 C. L. R. 162, wherein it was remarked:

"The legal position, therefore, is that it is apparent from the provisions of section 488 (3) of the Code of Criminal Procedure that in the first instance, a warrant of attachment of the moveable and immoveable properties must be issued to satisfy the arrears of maintenance and if after the execution of the warrant whole or any part of the arrears remains unpaid, then and then alone imprisonment of the defaulter can be issued by the Magistrate. The words "for the whole or any part of each month''s allowance remaining unpaid after the execution of the warrant" in section 488(3), Criminal Procedure Code, will have no meaning if it was the intention of the Legislature that even without recourse to a warrant of attachment, a warrant for imprisonment could be issued. The issue of warrant of attachment of property is a condition precedent to the issue of a warrant to imprisonment. The warrant of arrest directed to be issued without first having issued a warrant of attachment of a property is illegal. In the instant case the Magistrate without issuing the warrant for attachment of the moveable and immoveable properties of the petitioner, Dalip Singh passed orders of his imprisonment and this order is. therefore. illegal must be quashed."

The above observation fully covers the present case.

The learned counsel for the respondent argued that the petitioner had himself stated before the executing Court that he had no money to pay. That statement did not absolve the Court from proceeding against the property of the petitioner. There is nothing on the file to show that the petitioner does not possess any property. Therefore, before ordering imprisonment of the petitioner, the learned lower Court ought to have satisfied itself if the petitioner had any property. If he had some property, the learned Magistrate ought to have proceeded first against the property by issuing the warrant of attachment and sale.

The learned counsel for the respondent further argued that the revision petition ought to have been filed first in the Court of Session. Of course if the petitioner had done so. it would have been better. However, Section 397 of the Code of Criminal Procedure gives concurrent powers of revision to the High Court as well as the Sessions Judge. Therefore, this petition cannot be dismissed merely on the ground that the petitioner did not approach the Sessions Court.

For the foregoing reasons, I accept the present revision petition and quash the impugned order. The parties are directed to appear before the learned executing Court on November 22, 1983. The Court will take further proceedings in the case in accordance with law.