Orissa High Court
Rajendra Kumar Pradhan vs Smt. Pramila Pradhan on 6 July, 1993
Equivalent citations: 1993CRILJ3813, 1993(II)OLR284
Author: B.L. Hansaria
Bench: B.L. Hansaria
JUDGMENT B.L. Hansaria, C.J.
1. The question for examination by this Bench, on a reference being made by a learned Single Judge, is whether Section 125(3) of the Code of Criminal Procedure ("the Code" for short) permits passing of simultaneous order for issuing distress warrant as well as non-bailable warrant of arrest against the person who had failed without sufficient cause to comply with the order passed by a Magistrate under Sub-section (1) relating to maintenance of wife, children or parents. A learned Single Judge of this Court took a view in Jagannath Patra v. Purnamashi Saraf, AIR 1968 Ori. 35, that such a simultaneous order is not in accordance with law. Another learned Judge, without referring to the aforesaid case, however, held in Bhakta Bhuyan v. Sabitri Bhuyan, 1991 (I) OLR 119, 71(1991) CLT 110, that a Magistrate has jurisdiction to sentence a person to imprisonment for which purpose non-bailable warrant may be issued without having taken recourse to realisation of the unpaid amount by issuance of distress warrant, which is the manner visualised for realisation and levying of fines. The learned Judge hearing this case felt that the conflicting views taken by this Court in the aforesaid cases may be resolved by a larger Bench. Hence this reference.
2. As it is principally Section 125(3) of the Code which would answer the question posed, let that section be read :
"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 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;"
The language of the section, whose parallel provision in the old Code in the same language was Section 488(3), leaves no manner of doubt in our mind that the first mode visualised by it is issuance of warrant for collecting the amount due in the manner provided for levying fines. This takes us to Section 421, which deals with the manner of levying fines. That section permits taking of action for recovery of the fine in either or both ways mentioned in it; these being : (i) issuance of warrant of attachment of sale of any movable property ; and (ii) issuance of warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both. The second mode mentioned in Section 125(3) can be brought into play on "the whole or any part of each month's allowance remaining unpaid after the execution of the warrant". The word 'warrant' in this part of Section 125(3) has relationship with the 'warrant' of which the first part of the section speaks, which is the warrant mentioned in Section 421, which is commonly known as distress warrant. The two powers conferred by Section 125(3) are not independent, according to us, inasmuch as the two modes are not disjunctive but conjunctive, as would be apperant from the use of the word 'and' in the section linking the two modes-the principal mode being issuance of warrant, and in case the whole or any part of the allowance remains unpaid after execution of the warrant, to award imprisonment, to undergo which presence may be obtained by issuing warrant of arrest bailable or non-bailable.
3. We may now refer to the two decisions of this Court. In Jagannath Patra's case, the learned Single Judge (G. K. Mishra, J., as he then was) dealt with the parallel provision finding place in Section 488(3) of the old Code and observed as below ;
" It would thus be apparent that in the first instance warrant of attachment of the movable and immovable properties would be issued, the properties would be sold and applied for discharge of the arrear dues, and if on such steps being taken the arrear amount still remains unpaid, it is open to the Magistrate to issue a body warrant and not until then. The order of the learned Magistrate issuing simultaneously warrant of attachment and body warrant is not in accordance with law."
4. Shri Das appearing for the petitioner states that the view taken in Jagannath Patra was cited with approval by the Punjab and Haryana High Court in Karnail Singh v. Gurdial Kaur, 1974 Cri. LJ 38. Same is also the view taken by that High Court in Om Prakash v. Vidya Devi, 1992 Cri LJ 658. He also brings to our notice two other decisions as well; the same being : (1) Mohammad Amin v. Bibi Rashoolan, 1972 BLJR 352, which is of Patna High Court ; and (2) Rangaiah v. Rukmini Bai, 1972(1) An. W. R. 361, a decision of Andhra Pradesh High Court, in which the view taken by this Court in Jagannath Patra's case found favour, as would appear from what has been stated in paragraph 5 of the first case and paragraph 7 of the second.
5. Shri Rao, on the other hand, support the view taken by the learned Single Judge of this Court (V. Gopalaswamy, J. ) in Bhakta Bhuyan's case wherein it was held that issuance of warrant of attachment is not a condition precedent to the jurisdiction of the Magistrate to sentence a defaulting party. This view was taken after noting three decisions : the first of which is that of a Full Bench of Bombay High Court tendered in Karson Ramji Chawda v. State of Bombay, AIR 1958 Bombay 99 : the second, by Andhra Pradesh High Court in P. Ataullah v. Mumunisa Begum, 1984 Cri. LJ. 1522 ; and the third, by Madhya Pradesh High Court in Bhure v. Gomatibai, 1981 Cri LJ 789.
6. It would be in fitness of things to know what had really been held in the aforesaid three decisions. Bombay High Court's was a case wherein the Full Bench was called upon to decide whether the sentence of imprisonment for two months awarded by the Magistrate was valid in the eye of law. The Full Bench stated that this could be done; and while doing so, the contrary view taken by a Division Bench of that Court was held to be not correct. While dealing with the matter, it was, however, stated that the section conferred two independent powers on the Magistrate; one to issue warrant which has to be executed in the manner laid down in the sub-section, and the other, to sentence the person in the manner laid down in the subsection. It was then observed that the power of the Magistrate to sentence is not dependent upon the issuance of warrant. In other words, issuance of warrant is not a condition precedent to the jurisdiction of the Magistrate to award sentence. This, however, was not the point for consideration before the Full Bench. This apart, analysis of the section, as done by us earlier, does not permit us to agree with the statement of law made by the Full Bench.
7. In Ataullah's case, no illegality was read in the sentencing of the petitioner to imprisonment without issuing warrant because on the facts of that case the learned Judge was satisfied that no useful purpose would have been served by issuing warrant inasmuch as the husband on his appearance to the Court admitted that the amount had not been paid and had no representation to make. This case cannot, therefore, be taken to have laid down as a principle of law that issuance of warrant visualised by the first part of Section 125(3) is not a legal requirement before sentencing a defaulting husband to imprisonment and causing his presence by issuing warrant of arrest.
8. Decision in Bhure's case as well was based on the facts of that case, which, broadly stated were that the husband had himself stated that he had no agricultural land of his own, that he had no other property, and that he earned his living only by making bidis. It is because of this that the learned Judge opined that no useful purpose would have been served by issuing distress warrant ; any such effort would have been infructuous and would have simply prolonged the agony of the non-applicant wife, who was found struggling hard to recover the arrears of maintenance.
9. The aforesaid shows that apart from the Bombay case, the two other decisions relied on by the learned Judge who decided 1991 (I) OLR 119 Bhakta Bhuyan's case did not lay down the principle of law enunciated in that case. In so far as the Bombay case is concerned, we have already stated about our inability to agree to the legal proposition incidentally mentioned in it.
10. The aforesaid being the position and the language of Section 125(3) being what it is, we would answer the reference by saying that 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 emphasised that even the language of the section does not require that after distress warrant had been issued, the wife should wait till the process visualised by Section 421 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, according to us, because if the end of the process (which includes taking of necessary steps by the Collector to realise the amount as arrears of land revenue) 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 almost rendered nugatory. The high purpose which Section 125 is required to achieve would be lost in the oblivion and the help and succour which the wife or, for that matter, other persons contemplated by Section 125 are entitled to receive through the agency of the Criminal Court would become a marriage. We would further observe 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, as was found to be by two learned Judges of two High Courts in cases of Ataullah and Bhure.
11. In view of the above, we have to state, and we do so with respect, that the view taken by the learned Single Judge of this Court in 1991 (I) OLR 119 Bhakta Bhuyan's case is not legally tenable. But then, what was stated by the learned Single Judge in Jagannath Patra's case as a principle of law was also put too broadly, as the legal position is not that only after properties had been sold pursuant to the warrant of attachment that a Magistrate can issue a body warrant, as was stated in that case. The correct position of law, as we have understood, has been stated above.
12. In so far as the present case is concerned, we find that the order of maintenance was passed on 7-11-1989 by which the husband was asked to pay a sum of Rs. 300/- per month from 6-10-1988. We understand from Shri Das that pursuant to this Court's order passed on 5-3-1992, certain amount was deposited by the petitioner (which the opposite party might have withdrawn also), and the petitioner has been paying a sum of Rs. 300/- per month from September, 1992. Shri Rao accepts this position. We leave it to the learned Single Judge to decide as to what further order he should like to pass either relating to realisation of the outstanding dues or relating to the order of imprisonment passed by the learned Judicial Magistrate. Let the case be placed for this purpose before the learned Single Judge at a very early date.
R.K. Patra, J.
13. I agree.