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Showing contexts for: section 128 of crpc in Alagarsamy vs Mangalasundari on 20 November, 2025Matching Fragments
Grounds of Revision:
6. The learned Trial Court’s order is contradictory, as the respondents claimed arrears for 71 months, but the Magistrate issued NBW referring only to non-payment for one year, making the relief claimed and granted irreconcilable. The learned Magistrate failed to appreciate the distinction between Section 125(3) and Section 128 Cr.P.C., 1973. While the former limits execution for one year’s arrears, the latter allows unlimited recovery through distraint warrant. The learned Magistrate issued a distress warrant under Section 125(3) without clarifying the provision invoked.
7. The impugned order is silent about the section under which it was passed. Instead of issuing a distraint warrant under Section 128 Cr.P.C., 1973, the learned Magistrate wrongly issued a distress warrant under Section 125(3) Cr.P.C., 1973, vitiating the proceedings. The maintenance order was not from the date of petition but from the date https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/11/2025 07:18:10 pm ) of order. The correct arrears for the wife were Rs.72,000/-, (Rupees Seventy Two Thousand only) and for the daughter were Rs. 88,000/- (Rupees Eighty Eight Thousand only). Thus, the issuance of NBW for alleged higher arrears is erroneous.
9. He further submitted that even assuming that NBW was properly issued, the Court had power to recall it under Section 70(2) https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/11/2025 07:18:10 pm ) Cr.P.C., 1973. The learned Magistrate failed to exercise this discretion. The respondents claimed arrears for 71 months. Hence, Section 125(3), Cr.P.C., 1973, which allows imprisonment only for arrears up to one year, could not have been invoked. Only Section 128 Cr.P.C., 1973, permits recovery beyond one year by distraint warrant. The straight issuance of NBW without adherence to Section 87 Cr.P.C., 1973, amounts to deprivation of liberty without following due process, violating Article 21 of the Constitution. Since the maintenance order itself is under revision before the learned Sessions Court, initiation of coercive execution proceedings by the same Magistrate is improper and may result in multiplicity. Further, the learned counsel appearing for the petitioner contended that the actual arrears were only Rs. 1,60,000/-, (Rupees One Lakh and Sixty Thousand only) not Rs. 5,14,000/- (Rupees Five Lakhs and Fourteen Thousand only). The discrepancy in calculation demonstrates non-application of mind. In view of the above, he pressed for allowing the Criminal Revision case.
10. The learned counsel appearing for the respondents submitted that the petitioner’s allegation is factually incorrect. Summons were issued and served; the petitioner appeared, filed a counter, and thereafter defaulted. The NBW was issued only after due notice and https://www.mhc.tn.gov.in/judis ( Uploaded on: 20/11/2025 07:18:10 pm ) hearing. The execution petition was under Section 128 Cr.P.C., 1973, which empowers the learned Magistrate to enforce maintenance orders passed under Section 125 Cr.P.C., 1973. Hence, issuance of warrant to secure the defaulter’s presence is valid. He further submitted that despite having sufficient means, the petitioner failed to pay any amount for over one year. The learned Magistrate, on verifying the record, found the default deliberate.