Kerala High Court
Lovely Baiju vs State Of Kerala on 5 December, 2024
Crl.M.C.No.9373/2024 1 2024:KER:92623
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 5TH DAY OF DECEMBER 2024 / 14TH AGRAHAYANA, 1946
CRL.MC NO. 9373 OF 2024
AGAINST THE ORDER/JUDGMENT IN CMP.NO.116/2024 IN MC NO.67 OF
2021 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, NJARAKKAL
PETITIONER/PETITIONER:
LOVELY BAIJU
AGED 44 YEARS
W/O BAIJU, MARODIKKAPPARAMBIL HOUSE, KARTHEDAM,
MALIPURAM P.O, NOW RESIDING AT PERUMBILLY, ERNAKULAM
DISTRICT, PIN - 682503.
BY ADVS.
P.V.VIBIN
P.S.POOJA
RESPONDENTS/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 BAIJU, AGED 53 YEARS
MARODIKKAPPARAMBIL HOUSE, KARTHEDOM,
MALIPPURAM P.O, PIN - 682511.
PUBLIC PROSECUTOR SRI M P PRASANTH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.11.2024, THE COURT ON 05.12.2024 PASSED THE FOLLOWING:
"C.R"
A. BADHARUDEEN, J.
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Crl.M.C.No.9373 of 2024-B
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Dated this the 5th day of December, 2024
ORDER
This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS' for short), seeking the relief to quash the impugned order of issuing notice to the 2nd respondent dated 23.01.2024, Annexure A3, by the learned Judicial Magistrate of First Class, Njarakkal, in CMP.No.116/2024 in MC.No.67/2021.
2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents and the legal provisions on the point.
3. Short facts: The petitioner herein, who is the petitioner in M.C.No.67/2021 on the files of Judicial Magistrate of First Class, Njarakkal, filed CMP.No.116/2024, Crl.M.C.No.9373/2024 3 2024:KER:92623 Annexure 2, in the above M.C to issue distress warrant against the respondent and to recover and disburse the monthly maintenance and rent covered by the order in M.C.No.67/2021 dated 03.12.2022, produced as Annexure 1. According to the learned counsel for the petitioner, when Annexure 2 was filed, the learned Magistrate ordered notice to the respondent and the said order is Annexure 3 dated 27.08.2024. The point canvassed by the learned counsel for the petitioner is that there is no procedure envisaged either under Code of Criminal Procedure (`Cr.P.C' for short) or under the Protection of Women from Domestic Violence Act, 2005 (`DV Act' for short) to issue notice to the respondent before issuing distress warrant. According to the learned counsel for the petitioner, if an order of maintenance granted under the D.V Act has been violated, the procedure prescribed under Section 125(3) of Cr.P.C r/w 421 of Cr.P.C shall be followed. Section 421 doesn't mandate or provide issuance of notice to the respondent before ordering distress warrant. Therefore, the procedure adopted by the learned Magistrate is wrong. Accordingly, he pressed for setting aside Annexure 3 order with direction to the learned Magistrate to proceed with Annexure 2 by issuing distress warrant without notice to the respondent.
4. The learned counsel for the petitioner has placed decision of this Court reported in [2011 (3) KHC 931], Abdulrahiman v.
Crl.M.C.No.9373/2024 4 2024:KER:92623 State of Kerala & Ors., where this Court considered a case where a convict, who is undergoing sentence, imposed on default of payment of maintenance ordered under Section 125 of the Code of Criminal Procedure, has sent a petition from jail challenging the punishment imposed against him on two applications moved by the claimants/respondents, his wife and children by the Family Court, Kasaragod. The said petition has been numbered as a revision petition. Court was pleaded to appoint an amicus curiae to assist the Court as the petitioner was in jail. Going through the petition sent by the convict from the prison Court found that the contentions of the petitioner have to be examined on merits to prevent miscarriage of justice. Court examined the provisions of the Code of Criminal Procedure and held that sentence of imprisonment can be imposed against the defaulter only after issuing a distraint warrant for levying the amount due as arrears of maintenance in the manner provided for realisation of fine. Court has to give sufficient cause if it has to avoid issuance of distraint warrant. In the case at hand, no distraint warrant has been issued. This Court held in the above case that an accused had a right to fair trial but also that he got a fundamental right for speedy trial of his case because a speedy trial is an integral and Crl.M.C.No.9373/2024 5 2024:KER:92623 essential part of fundamental right to life and liberty guaranteed under Article 21 of the Constitution of India. It is equally relevant to refer to the decision of this Court in Nirmal Singh Kahlon v. State of Punjab and Ors. reported in (2009) 1 SCC 441. In the said decision, this Court held that both the accused and victim of a crime have right to fair trial and that fair investigation and fair trial are concomitant to preservation of the fundamental right of an accused under Article 21 of the Constitution of India.
5. In this connection, it is relevant to refer various provisions pertaining to the point in issue. Chapter IV of DV Act deals with procedure for obtaining various reliefs by filing application under Section 12 of the DV Act. As per Section 12, an aggrieved person or a Protection officer or any other person on behalf of the aggrieved person may present an application to the Magistrate seeking one or more reliefs under the DV Act; viz.; protection orders under Section 18; residence orders under Section 19; monetary reliefs/order of maintenance under Section 20 and custody orders under Section 21. Section 22 of DV Act deals with compensation orders for the aggrieved person. Section 20(1)(d) provides maintenance for the aggrieved person as well as her Crl.M.C.No.9373/2024 6 2024:KER:92623 children, if any, or in addition to an order of maintenance under Section 125 of Cr.P.C, 1973 or any other law for the time being in force. Section 28 of the DV Act provides that, save as otherwise provided in this Act, all proceedings under sections 12, 18, 19, 20, 21, 22 and 23 and offences under section 31 shall be governed by the provisions of the Code of Criminal Procedure, 1973 (2 of 1974). (2) Nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. Section 28(2) provides that nothing in sub-section (1) shall prevent the Court from laying down its own procedure for disposal of an application under section 12 or under sub-section (2) of section 23. Thus as per Section 28, in relation to maintenance orders passed under Section 20(1)
(d), the procedure shall be governed by the provisions of Cr.P.C. Section 125(3) of Cr.P.C provides as under:
"If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every 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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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:
Provided that no warrant shall be issued for the recovery of Crl.M.C.No.9373/2024 7 2024:KER:92623 any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing."
Section 144(3) of BNSS is the corresponding provision to Section 125(3) of Cr.P.C. Section 144(3) of BNSS also provides as under:
"Section 144(3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every 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 for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if Crl.M.C.No.9373/2024 8 2024:KER:92623 he is satisfied that there is just ground for so doing."
6. On reading Section 125(3) of Cr.P.C as well as Section 144(3) of BNSS, for every breach of the order, the court shall issue a warrant for levying the amount due in the manner provided for levying fines.
7. Section 421 of Cr.P.C provides as under:
"421: Warrant for levy of fine.
(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may -
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter :
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.
(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
Crl.M.C.No.9373/2024 9 2024:KER:92623 (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law :
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
Section 461 of BNSS corresponding to Section 421 of Cr.P.C.
8. Reading the statutory wordings in Section 421 of Cr.P.C and under Section 461 of BNSS, before issuance of distress warrant, issuance of notice to the defaulter of fine, is not provided. But Section 125(3) of Cr.P.C and Section 143(3) of BNSS provide that if any person fails to pay maintenance as ordered without sufficient cause under Section 125(1) of Cr.P.C or under Section 143(1) of BNSS, the same shall be recovered as if it were a fine. Thus for issuing distress warrant to levy the fine imposed as per judgments in criminal cases, no notice is either necessary or mandatory. But in the case of realisation of arrears of maintenance, the power to issue distress warrant emanates from Section 125(3) of Cr.P.C and under Section 144(3) of BNSS. It has been provided therein that when any person fails to comply with the order directing payment of maintenance without sufficient cause, the Magistrate may issue distress warrant. So the Court has to see whether the non-compliance of Crl.M.C.No.9373/2024 10 2024:KER:92623 the order is without sufficient cause. In order to consider the same, the Court can issue notice to the defaulter before issuing distress warrant. As far as the instant case is concerned, since Annexure 3 proceedings was passed on 27.08.2024 in an application filed on 23.1.2024, issuance of notice, before issuing distress warrant, either under Sections 421 and 125(3) of Cr.P.C or under Sections 144(3) and 461 of BNSS, is legally permissible before issuing distress warrant for, (a) levy of the amount by attachment and sale of movable property belonging to vendor or (b) as arrears of land revenue from the movable or immovable property or both, of the defaulter. Thus as per Section 125(3) of Cr.P.C and under Section 144(3) of BNSS, if any person so ordered fails without sufficient cause to comply with the order any competent Magistrate may for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, by resorting to Section 421 of Cr.P.C or Section 461 of BNSS. Therefore, as per Section 125(3) of Cr.P.C and under Section 143(3) of BNSS the Court can address the question as to whether the defaulter failed to obey the order with sufficient cause; such as payment made was not known to the petitioner or Crl.M.C.No.9373/2024 11 2024:KER:92623 the amount to be adjusted in other proceedings of similar nature etc. If so, in order to find out as to whether the person against whom warrant will be issued is not obeying the same without sufficient cause, notice and hearing of the person can be insisted. That is to say, on getting such notice, the person can appear and submit the details of the payment, if any, he made or to show a `sufficient cause' so that he could not obey the order. Then issue of distress warrant shall be on considering the question as to whether the person failed to obey the order without sufficient cause. In such view of the matter, if the Magistrate ordered notice to the respondent in a petition filed to issue distress warrant, the same could not be held as illegal.
9. The above discussion, leads to the conclusion that the order impugned deserves no interference. Hence the petition fails and is dismissed accordingly.
Registry shall forward a copy of this order to the jurisdictional court for information and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr
Crl.M.C.No.9373/2024 12
2024:KER:92623
APPENDIX OF CRL.MC 9373/2024
PETITIONER'S ANNEXURES
Annexure 1 THE CERTIFIED COPY OF THE ORDER IN MC
NO.67/2021 OF HON'BLE JUDICIAL FIRST CLASS
MAGISTRATE COURT, NJARAKKAL DATED 03.12.2022.
Annexure 2 THE TRUE COPY OF THE CMP NO.116/2024 DATED
23.01.2024 BEFORE THE HON'BLE JUDICIAL FIRST
CLASS MAGISTRATE COURT, NJARAKKAL.
Annexure 3 THE CERTIFIED COPY OF THE B DIARY PROCEEDINGS
OF CMP NO.116/2024 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, NJARAKKAL DATED 27.08.2024.