Jan - High Court of Judicature at Allahabad

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38 INDIAN LAW REPORTS ALLAHABAD SERIES [2012Magistrate could give in such case at mosttwelve months' imprisonment and no more.The whole idea is to provide a speedy andexpeditious remedy. The idea is not topermit unnecessary accumulation ofmaintenance for the simple reason thatmaintenance is a current necessity and isnot to be used for making a claim in lumpafter a long delay.(17) Turning now to the question ofinterpretation of the expression "after theexecution of the warrant in Section 488(3), Cri. P.C. Mr. Sinha's contentioncannot succeed on the facts of this case inchallenging the Magistrate's order. Nodoubt before the execution of the warrantthe Magistrate cannot sentence thedefaulter. But on the facts as we havealready recorded the distress warrant hasbeen executed. Execution of the warrant inthis case does not mean successfulexecution of the warrant. It also includesunsuccessful execution of the warrantyielding no fruits. If the execution of thewarrant was always successful thenobviously there would be no furtherquestion of sentencing the defaulter.Besides, the sentence can be awarded bythe Magistrate under Section 488, Cri.P.C. Which expressly provides for the caseeven if the whole amount remains unpaidafter the execution of the warrant. Thatmust necessarily contemplate a case wherethe whole of the amount due remainsunrealised after unsuccessful execution ofthe distress warrant or the other warrantunder Section 386 (1) (b) of the Code ofCriminal Procedure. On the facts we havecome to the conclusion as alreadyindicated that the distress warrant issuedin this case has been unsuccessfullyexecuted and was infructuous. Therefore,the Magistrate had the right to order asentence of imprisonment. Mr. Sinha alsosuggested in argument that only thedistress warrant could not be executed, butthen the Magistrate should have followedthis by another kind of warrant to theCollector under Section 386 (1) (b), Cri.P.C. and it is only after having exhaustedboth the warrants the Magistrate's right tosentence could arise. That argument isobviously unsound. The language ofSection 386 (1) of the Criminal ProcedureCode expressly uses the words:-"Whenever an offender has beensentenced to pay a fine, the Court passingthe sentence may take action for therecovery of the fine in either or both of thefollowing ways............." and then follows(a) method of issuing a warrant for thelevy of the amount by attachment and saleof any movable property belonging to theoffender; and (b) method of issuing awarrant to the Collector of the Districtauthorising him to realise the amount byexecution according to civil processagainst the movable or immovableproperty or both, of the defaulter. Havingregard to the language "either or both ofthe following ways" it is plain that theMagistrate is not compelled to start the (b)method when the (a) method which he hadadopted previously had failed before hecould sentence a defaulter."12. The Division Bench furtherobserved that Section 488 (3) of theCriminal Procedure Code, 1898 does notexpressly lay down any requirement forissuing a show cause notice. What isimplicit or is required, is the Magistrate'ssatisfaction about the means of thedefaulter to comply with the order formaintenance, where there are sufficientmaterials before the Magistrate to come tothe conclusion that the defaulter hadsufficient means, but he is wilfully
1 All] Manoj Kumar Gupta V. Smt. Kamlesh Kumari and anothers 39neglecting to comply with the order ofmaintenance. Such notice to the defaulterbefore issuing a warrant is not requiredunder Section 488 (3) of the CriminalProcedure Code. The Division Benchrelied upon a Full Bench decision reportedin AIR 1958 Bombay 99 (FB) and AIR1959 Allahabad 556.13. The Hon'ble Supreme Court inthe case of Shahada Khatoon and othersVs. Amjad Ali and others reported in1999 CRI. L.J. 5060 (Supreme Court)while interpreting the provisions of Section125(3) of the Criminal Procedure Code,1973 (2 of 194 Cr.P.C.) held that thelanguage of sub Section (3) of Section 125Cr.P.C. is quite clear and it circumscribesthe power of the Magistrate to imposeimprisonment for a term which may extendto one month or until the payment, ifsooner made. This power of the Magistratecannot be enlarged and, therefore, the onlyremedy would be after expiry of onemonth, for breach of non-compliance ofthe order of the Magistrate the wife canapproach again to the Magistrate forsimilar relief. By no stretch of imaginationthe Magistrate can be permitted to imposesentence for more than one month. TheHon'ble Apex Court did not accept thecontention of the learned counsel for theappellant that the liability of the husbandarising out of an order passed underSection 125 Cr.P.C. to make payment ofmaintenance is a continuing one and onaccount of non payment there has been abreach of the order and, therefore, theMagistrate would be entitled to imposesentence on such a person continuing himin custody until payment is made.14. The Hon'ble Supreme Court inthe case of Shantha alias Ushadevi andanother Vs. B.G. Shivananjappa, 2005CRI. L.J. 2615 (Supreme Court) inparagraph 8 observed that Section 125Cr.P.C. is a measure of social legislationand it has to be construed liberally for thewelfare and benefit of the wife anddaughter. It is unreasonable to insist onfiling successive applications when theliability to pay the maintenance as per theorder passed under Section 125(1) is acontinuing liability. The Hon'ble SupremeCourt directed the Magistrate to takeappropriate steps under Section 125(3)Cr.P.C. in case arrears of maintenance isnot paid.15. The Hon'ble Supreme Courtfurther held that requirement of Section125 Cr.P.C. is that the wife shall move anapplication within a period of one yearfrom the date, the amount became due. Itwas further observed that in order to seekrecovery of the amount due by issuance ofwarrant as provided under Section 125Cr.P.C., the application shall be madewithin a period of one year from the datethe amount became due and if the husbandfailed to pay maintenance.16. The Full Bench of Gujarat HighCourt in the case of Suo Motu Vs. State ofGujarat reported in 2009 CRI. L.J. 920(Full Bench) has observed in paragraphs14 and 15 as under:-14.Sub-section (1) of section 125 thusprovides for monthly allowance to be paidto the wife, children, mother or father, asthe case may be, at such monthly rate asthe Magistrate thinks fit. It can thus beseen that the maintenance that theMagistrate awards under section 125 (1)becomes payable every month.Sub-section (3) of section 125provides for summary procedure for
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Jan - High Court of Judicature at Allahabad

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