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Allahabad High Court · body

1972 DIGILAW 56 (ALL)

Jafar Hasan v. Afroz Jahan

1972-02-07

C.D.PAREKH

body1972
JUDGMENT C.D. Parekh, J. - This reference has been made by order dated March 30, 1971, passed by the 1st Addl. Sessions Judge, Mauzaffarnagar. He has recommended that the order dated January 1, 1971 passed by the magistrate be set aside and has further recommended that Jafar Hasan the husband be afforded an opportunity by the magistrate to file objection if any and thereafter to proceed and decide the application of Smt. Afroz Jahan, the wife. 2. Briefly stated the facts of the case are that under the provisions of S. 488 Cr.P.C. Smt. Afroz Jahan was allowed maintenance allowance of Rs. 35/ per month from the date of her application against Jafar Hasan. On 13th August, 1970 an application for recovery of the amount said to be in arrears was moved. The magistrate directed that notice be issued to Jafar Hasan. That notice was returned on 29 September, 1970 with the report that the address was incomplete. Thereafter on 29th September, 1970 the magistrate directed that fresh notice be issued. This notice was not received back after service on Jafar Hasan and three dates were fixed thereafter but the notice could not be received in court after due service. The magistrate directed that reminders be issued to the S.O. and the Superintendent of Police but ultimately on 17th December, 1970 the magistrate ordered that warrant be issued for the arrest of Jafar Hasan. On 1st January, 1971, Jafar Hasan appeared and stated that no notice was served on him and he wanted to file an objection against the application of Afroz Jahan and, therefore prayed for opportunity to file the same. U/sub CI.(6) of S. 488 Cr.P.C. a warrant for levying the amount could be issued only when do my when the person so ordered fails without sufficient cause to comply with the order. In the instant case as no notice was served on Jafar Hasan and he had no opportunity to file objection against the application of Smt. Afroz Jahan the magistrate in my opinion could not have issued warrant for the arrest of Jafar Hasan. In the circumstances the order passed by the Magistrate for the arrest appears to be illegal and not according to law. 3. In the circumstances the order passed by the Magistrate for the arrest appears to be illegal and not according to law. 3. I, therefore, accept the reference and set aside the order dated 1 January, 1971 and direct the magistrate to give an opportunity to Jafar Hasan to file objection if any and thereafter to decide the case according to law.