Orissa High Court
Naresh Chandra Panda vs Smt. Minarani Panda And Others on 6 November, 2017
Equivalent citations: AIRONLINE 2018 ORI 431
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLMC No. 1732 of 2005
An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with Crl. Misc. Application No.8 of
2005 pending on the file of J.M.F.C., Soro.
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Naresh Chandra Panda ......... Petitioner
-Versus-
Smt. Minarani Panda
& Others ......... Opposite parties
For Petitioner: - None
For Opp. Parties: - Mr. Yeeshan Mohanty
Senior Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing & Judgment: 06.11.2017
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S. K. SAHOO, J.None appears on behalf of the petitioner.
Mr. Yeeshan Mohanty, learned Senior Advocate appearing for the opposite parties is present.
In this application under section 482 of Cr.P.C., the petitioner Naresh Chandra Panda has challenged the impugned 2 order dated 31.03.2005 passed by the learned J.M.F.C., Soro in Crl. Misc. Application No.8 of 2005 in issuing non-bailable warrant of arrest as well as distress warrant against the petitioner for realization of the total arrear maintenance dues with the condition not to execute the non-bailable warrant of arrest, if distress warrant amount is realized.
Learned counsel for the opposite parties submitted that the opposite parties filed an application under section 125 of Cr.P.C. claiming maintenance against the petitioner. The opposite party no.1 happens to be the wife and the opposite parties nos. 2 and 3 are the daughters of the petitioner and the opposite party no.1. The learned J.M.F.C, Soro adjudicated the 125 Cr.P.C. application in Misc. Case No.21 of 2001 and vide judgment and order dated 20.06.2002 directed the petitioner to pay a sum of Rs.400/- to the opposite party no.1 and Rs.300/- each to the opposite parties nos.2 and 3 from the date of order towards their maintenance. It appears that subsequently another application under section 127 Cr.P.C. was filed by the opposite parties for enhancement of the maintenance amount and such application was adjudicated ex-parte and the learned Magistrate enhanced the monthly maintenance amount vide order dated 08.10.2004 to the tune of Rs.500/- for the opposite party no.1 3 and Rs.1000/- each for the opposite parties nos.2 and 3 and the enhanced maintenance amount was directed to be paid from the date of filing of the 127 Cr.P.C. petition i.e. on 15.09.2003.
It is submitted by the learned counsel for the opposite parties that since the petitioner failed to comply the order passed by the learned J.M.F.C., Soro, an application under section 125(3) of Cr.P.C. was filed by the opposite parties and accordingly, the impugned order was passed. The learned counsel for the opposite parties further submitted that even though the first maintenance order was passed in the year 2002 and it was enhanced on 08.10.2004 but the petitioner has not paid the maintenance amount at the enhanced rate and thereafter, stopped paying maintenance. He further submitted that there is no illegality in the impugned order passed by the learned Magistrate in the issuance of non-bailable warrant of arrest and distress warrant.
Section 125(3) Cr.P.C. provides that the Magistrate may issue a warrant for levying the amount of maintenance due as provided for levying fines if the person fails to comply the order of the Magistrate without sufficient cause. The Magistrate even may sentence such person to imprisonment for a term which may extend to one month or until payment if sooner made 4 for the whole or any part of each month's allowance for maintenance or interim maintenance or litigation expense remaining unpaid.
In case of Rajendra Kumar Pradhan -Vrs.- Smt. Pramila Pradhan reported in 1993 (Vol. II) Orissa Law Reviews 284, a Division Bench of this Court held that passing simultaneous order for issuing distress warrant as well as non- bailable warrant of arrest against a person who has failed to comply with order relating to maintenance without sufficient cause is not proper. In normal circumstances, issuance of distress warrant is a condition precedent for exercise of the power to sentence conferred by that section. It, however, deserves to be noticed and emphasized that even the language of the section does not require that after distress warrant had been issued, the wife should wait till the process visualized by section 421 of the Code comes to an end, because all that the second part of the section requires to become operative is "execution of the warrant". The section has been so worded very rightly because if the end of the process were to be awaited, the wife would hardly be able to get the benefit of the order because of the delay involved and the result would be that the speedy remedy made available by section 125 to destitutes would be 5 almost rendered nugatory. It was further held that in a case distress warrant may not be insisted upon, if the Court were to be satisfied on the facts of that case that such an exercise would be futile.
The purpose for which sentence has been prescribed under section 125(3) Cr.P.C. is not a sentence stricto senso rather it is a mode of enforcement of the maintenance order passed by the Court to recover the amount of maintenance with expedition and without compelling the destitute lady and her children to come to the corridors of the Court frequently to get the maintenance amount. It is not only the duty of the Court adjudicating the maintenance application to see that the order of interim maintenance/maintenance is passed at an earliest in favour of the deserving applicants but also to see that the applicants get the benefit of the maintenance order at an earliest otherwise it will remain a mere paper justice than subserving the cause of substantial and real justice. Procedures are handmade of the justice. It is meant to enhance its cause and not to scuttle the same.
In the present case, even though the learned Magistrate issued N.B.W. and D.W. simultaneously against the petitioner for realization of total arrear dues of maintenance but 6 he was careful enough in directing that if the distress warrant amount is released, N.B.W.A. is not to be executed. The purport of the order is that first there shall be attempt to realize the arrear maintenance amount due in the manner provided for levying fines under Section 421 of Cr.P.C. and if it becomes possible to realize such amount then non-bailable warrant shall not be executed. Therefore, execution of N.B.W. was a conditional order which would be effective in case of failure to realize the arrear maintenance amount in the manner as provided under section 421 of Cr.P.C.
In view of the aforesaid ratio laid down by the Division Bench and the conduct of the petitioner in avoiding to make payment of the maintenance dues, I find no illegality or infirmity in the impugned order dated 31.03.2005 Accordingly, the CRLMC application stands dismissed.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 6th November, 2017/Sukanta