Bombay High Court
King Emperor vs Budhoo Mandal Gond on 3 September, 1948
Equivalent citations: 1949CRILJ673, AIR 1949 NAGPUR 269
ORDER Hemeon, J.
1. The non applicant Budhoo was sen-tenced to undergo four months rigorous im-prisonment under Section 488(8), Criminal P. 0., by the Firat Class Magistrate, Bilaspur, for his failure to pay bb. 40, maintenance allowance to his wife at the rate of bs, 10 per mensem; and the Sessions Judge, Raipur, has now reported the case under Section 488, Criminal P. C, to have that sentence reduced to one' month, the maximum prescribed by Section 488 (3), ibid.
2. The reference cannot be accepted and it" appears to me that it was founded on a mistaken view of the effect of B. 488 (3), Criminal P. 0. It is true that in Queen.Empress v. Narain 9 all. 240 : 1887 a. w. N. 64, it was held that the maximum term-of imprisonment under the sub-section in question was one month, and that only one month's imprisonment oould be awarded on the whole in default of payment of the aggregate of the amounts due, That view was, however, dissented from in Allapichai Bavuthar v. Mohidin Bibi 20 Mad. 8 : 2 Weir 688, in which a Division Bench of the Madras High Court held that the maximum imprisonment where one warrant only was issued was one month for each month's arrears of maintenance and if there was a balance for a portion of a month a further term of a month's imprisonment might be imposed for such arrears. A Full Bench of the Allahabad High Court in Emperor V. Beni I. L. R. (1938) ALL. 750 : A. I. E. (2fi) 1988.ALL. 886 : B9 Or. L. J. 720 (F. B.) overruled the earlier Allahabad case and followed the deoi-Bion in the Madras case as well as in Bhiku Khan v. Zahuran 26 cal. 291, Emperor v. Sardar Muhammad a.i.b. (22) 1936 Lah. 758 : 87 cr. L J. 207 and Emperor v. Budhu Ram 60 I. O. 847 : A.I.R. (6) 1919 Lah. 197 : 20 Cr. L. J. 867. A Division Bench of the Rangoon High Court followed the view taken in Allapichai Ravuthar v. Mohidin Bibi 20 Mad. 8 : 2 weir 638, Bhiku Khan v. Zahuran 25 oal. 291 and Emperor v. Beni I. L. R. (1938) ALL. 750 : A.I.R. (25) 1988 ALL. 386: 89 Or. L. J. 720 (p. B.) and I am in respectful agreement with that view.
3. Section 3i6,,Orirainal P. C, of 1861 was as follows:
The Magistrate may, for every breach of the order, by warrant direct the amount due to be levied In the manner provided for levying fines or may order such person to be imprisoned with or without hard labour for any term not exceeding one month.
The relevant part of Section 488 (3), Criminal P, C, of 1882, is:
"Magistrate may, for every breaoh of the order, issue a warrant for levying the amount due In manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month'a allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month...
Section 488 of the present Criminal Procedure Code is in the same terras as Section 488, Criminal P. C. of 1882.
4. The change in the wording is significant and the introduction of the words "for the whole or any part of each month's allowance" is, as the learned Judges pointed out in Emperor v. Beni , vital and they would be unmeaning if it were held that Magistrates can impose a term of imprisonment for only one month under Section 488, Criminal P. C.
5. The reference is accordingly rejected.