Allahabad High Court
Rajpal vs State Of U.P. And Another on 15 October, 2020
Author: Dinesh Pathak
Bench: Dinesh Pathak
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 88 Case :- APPLICATION U/S 482 No. - 45665 of 2018 Applicant :- Rajpal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ajay Sengar Counsel for Opposite Party :- G.A.,Sushil Kumar Rathore Hon'ble Dinesh Pathak,J.
Heard learned counsel for the parties and learned A.G.A. for the State.
Order dated 05.02.2019 reveals that Sri Sushil Kumar Rathore, has filed his memo of appearance on behalf of the opposite party no.2 and he has refused to file any counter affidavit in the present matter.
Instant Application u/s 482 Cr.P.C. has been preferred by the present applicant challenging the impugned order dated 23.08.2018 passed by Judicial Magistrate, Jalaun in Criminal Misc. Application No. 1302 of 2015 by which recovery warrant as well as non-bailable warrant have been issued against the present applicant.
Factual matrix of the case shows that marriage of the present applicant namely Rajpal was solemnized on 04.04.2005 with the opposite party No. 2, Smt. Rajni Devi. It appears that due to some misunderstanding between them, they could not live together and left the society of each other. Later on opposite party No. 2 has moved an application dated 30.07.2015, under Sections 17, 18, 19, 20, 21 of Protection of Women from the Domestic Violence Act, 2005 (in brevity Act 2005) against four persons namely Rajpal (husband of the present applicant), Chandrabhan (father-in-law), Smt. Valoo Devi (Mother-in-law) and Rani (Sister-in-law). During pendency of aforesaid application, opposite party No.2 has filed application for interim maintenance (Paper No. 5 Kha), U/s 23(2) of Act, 2005. Judicial Magistrate, Jalaun, had allowed interim maintenance application vide order dated 14.10.2016, directing the present applicant, who was arrayed as opposite Party No. 1 and his father namely Sri Chandra Bhan, who was arrayed as opposite party No.2, to pay Rs. 1500/- per month, jointly, to the aggrieved in first week of every month during pendency of the case. As the opposite parties no. 1 & 2 of the said application had not complied with the order dated 14.10.2016, Smt. Rajni Devi has moved an application (Paper No. 8 kha) for compliance of the said order. Vide order dated 04.05.2017, learned Court below has passed an order for issuing the recovery warrant against them. At subsequent stage, due to non-compliance of earlier orders, learned Court below has passed an impugned order dated 23.08.2018 issuing recovery certificate as well as Non-bailable warrant against both the aforesaid persons.
Feeling aggrieved, present applicant has challenged the order dated 23.08.2018 on the ground that learned Court below has got no jurisdiction to pass non-bailable warrant in the present matter. In support of his contention, learned counsel for the applicant placed reliance on the Para 8 and 9 of the judgment passed by Bombay High Court in the case of Sachin Suresh Bhodhale Vs. Sushma Sachin Bodhale, 2015(1) AIR Bom.R (Cri) 435. Relevant para nos. 8 and 9 of the aforesaid judgment is quoted below:-
"8. Thus there is absolutely clear provision under the code of Criminal Procedure, which lays down as to how the amount of maintenance, final or interim, is to be recovered. The Magistrate, in my opinion, could not have issued non-bailable warrant directly. He should have followed the procedure laid down in sub-section (3) of Section 125 and Section 421 of the Code of Criminal Procedure. In the scheme of Code of Criminal Procedure, in the first place, the Magistrate was under obligation to issue a warrant for levy of the amount by attachment and sale of any movable property. The other remedy available was to 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. The Magistrate could have sentenced the petitioner 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 might extend to one month or until payment if sooner made.
9. As such the first option available to the Magistrate was to issue a warrant for levying fine. If whole of the amount was recovered by adopting the procedure under Section 421 of the Code of Criminal Procedure, the question of putting the defaulter in prison did not arise. In case amount was not recovered or part of it was recovered and part of it was not recovered, then the question would have arisen as to how much sentence should be imposed on the defaulter as per the provision laid down in the Code of Criminal Procedure. The stage of issuing warrant comes only after sentencing and not before that."
For the same ground, learned counsel for the applicant has placed reliance on Para 5 and 6 of the judgement passed by Kerala High Court in Shanavas Vs. Raseena, 2014(2) R.C.R.(Criminal) 6: Para 5 and 6 of the aforesaid judgment is quoted below:-
5. As is clear from Section 31 of Protection of Women from Domestic Violence Act, when an order under Section 23, whether under sub-section (1) on hearing the respondent or under sub-section (2), an ex parte interim protection order, was passed and respondent commits breach of that order, respondent is punishable as provided under sub-section (1) of Section 31. That offence, as provided under Section 32 of Protection of Women from Domestic Violence Act is non bailable and cognizable. But the cognizable offence provided under Section 31(1) would only be the result of a breach of the protection order as provided under Section 18 of Protection of Women from Domestic Violence Act.
6. A Magistrate, on passing an order under Section 23(1) or an ex parte order under Section 23(2) of Protection of Women from Domestic Violence Act, cannot direct arrest of the respondent by issuing non bailable warrant before taking cognizance of the offence, if an offence is committed under sub-section (1) of Section 31. Annexure-VI proceeding paper shows that after passing Annexure-II ex parte order as provided under sub-section (2) of Section 23 of Protection of Women from Domestic Violencee Act, the petition filed by the first respondent under Section 12 of Protection of Women from Domestic Violencee Act was posted for the appearance of the respondents. When first respondent appeared through a counsel, he was directed to appear in person and pay the maintenance. It is on the failure to appear and pay maintenance as ordered, the non bailable warrant was issued. Learned Magistrate cannot order non bailable warrant for the failure to pay maintenance as has been done in this case. It is made clear that Magistrate can proceed against the petitioner or other respondents for non payment of the interim maintenance only as provided under Protection of Women from Domestic Violence Act and such an order cannot be enforced as has been done by the learned Magistrate. In such circumstances, the order issuing non bailable warrant can only be quashed.
I have carefully considered the submissions advanced by learned counsel for the parties and perused the record on board. It is clear that interim maintenance was granted vide order dated 14.10.2016, since then opposite party No.2 is running from pillar to post to get the aforesaid interim maintenance but the present applicant is throughout avoiding the same on one or the other pretext. Ultimately, learned trial Court has passed the order dated 23.02.2018 issuing recovery warrants as well as non-bailable warrant against the present applicant to ensure his presence before the Court so that he may be directed to comply the order dated 14.10.2016. Dealing with the issue with regard to issuance of non-bailable warrant in the matter where interim maintenance has been granted under Section 23(2) of the Act, 2005, Hon'ble Bombay High Court has expressed its view in the case of Sachin Suresh Bhodhale (Supra) that these matters relating to realisation of maintenance/interim maintenance should be dealt with under the provision as embodied under Section 125 Cr.P.C. read with Section 421 Cr.P.C.
Issuing non-bailable warrant is not proper remedy for realisation of amount under Section 23(1) of the Act, 2005. In another case of Shanavas Vs. Raseena (Supra), Hon'ble Kerala High Court has expressed its view that on passing an order under Section 23(1) and an ex-prate order under Section 23(2) of the Act of 2005, Magistrate cannot directly arrest to the respondents by issuing non-bailable warrant before taking into cognizance of the offence, if any, offence is committed under sub-Section 1 of Section 31 of the Act, 2005.
In the light of the observations as made by two High Courts, I am of the opinion that direct issuing non-bailable warrant against the present applicant is not proper without following the due procedure as prescribed under law. As such, present application is allowed and impugned order dated 23.08.2018 passed by Judicial Magistrate, Jalaun, so far as it relates to issuance of non-bailable warrant against the present applicant is hereby set aside.
Learned trial Court is directed to proceed against the present applicant in accordance with law.
Order Date :- 15.10.2020 Sachin Tiwari