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2002 DIGILAW 258 (CAL)

Subhamoy Chatterjee v. Lity Chatterjee

2002-04-19

Malay Kumar Basu

body2002
JUDGMENT Malay Kumar Basu, J. This revisional application is directed against the order dated 8th March, 2001 passed by the learned Sessions Judge, Bankura in Criminal Revision No. 1 of 2001. That revisional application arose out of the order dated 21st October, 2000 passed by the learned C.J.M., Bankura in Misc. Execution Case No. 120 of 1999 which arose out of Misc. Case No. 152 of 1993 under section 125(3) of the Cr. P.C. The relevant facts in short are as follows:- The present petitioner, Subhamoy Chatterjee, admittedly married the opposite party, Lity Chatterjee, according to Hindu rites. The opposite party-wife filed a petition for maintenance under section 125 of the Cr. P.C. before the learned C.J.M., Bankura praying for an order awarding maintenance in her favour and the learned C.J.M. passed an interim order granting interim maintenance at the rate of Rs. 400/- per month with effect from the date of filing of the petition payable by the husband-petitioner to the opposite party-wife. But according to the opposite party-wife, nothing was paid by the petitioner-husband by way of maintenance in compliance with the above order of the court and hence she filed the misc. execution case under section 125(3) of the Cr. P.C. to realise the arrear amount of Rs. 18,800/-. The learned C.J.M. after admitting the petition passed an order issuing notice upon the husband fixing 3rd September, 1999 for service return and payment. On the date fixed, no service return of the notice was received and accordingly another date, i.e., 11th October, 1999 was fixed for the same purpose. On that date fixed. i.e., 11th October, 1999 it was found by the court that service return of the notice along with the acknowledgement due card was received after due service. But the opposite party husband did not turn up in spite of the fact that he had received the notice himself and under such circumstances the learned C.J.M. issued warrant of arrest against him fixing 30th November, 1999 for E.R. 2. Being aggrieved by that order, the husband has preferred the present revisional application challenging the said order as illegal and erroneous and hence unsustainable. 3. It has been argued by Mr. Mukherjee, learned advocate for the petitioner-husband before me, that the learned Magistrate was not competent to issue a warrant of arrest on the very first day. Being aggrieved by that order, the husband has preferred the present revisional application challenging the said order as illegal and erroneous and hence unsustainable. 3. It has been argued by Mr. Mukherjee, learned advocate for the petitioner-husband before me, that the learned Magistrate was not competent to issue a warrant of arrest on the very first day. In view of the provisions of section 125(3) of the Cr. P.C. no warrant shall be issued for recovery of any amount due under this section unless an application has been made to the court to levy such amount within the period of one year from the date on which it became due. According to Mr. Mukherjee, warrant has to be issued as per the procedure prescribed under section 421 of the Cr. P.C. levying fines and since by virtue of the impugned order the warrant of arrest has been issued not in consonance with the said prescribed procedure, it must be deemed to be an illegal order and should be set aside. 4. But I am not impressed by this argument. The warrant which is referred to under section 125(3) of the Cr. P.C. does not relate to any warrant of arrest like the present one. The said section refers to warrant of distress which is to be issued following the procedure laid down under section 421 of the Cr. P.C. for the purpose of levying the fines imposed by a court on a convict. Here by the impugned order a simple warrant of arrest has been issued which has no connection with anything like distress warrant. This warrant of arrest is only a process by means of which the court has tried to procure the appearance of a party and nothing more. In order to issue such a warrant the question of following the rules provided under section 125(3) of the Cr. P.C. does not arise. In order to be satisfied about the justifiability of issuance of such a warrant of arrest against the petitioner I have examined the order of the learned court below. It appears therefrom that the court did not issue such a warrant of arrest on the very first date or at the very first instance. On the first date, it issued a simple notice directing the opposite party-husband to appear before the court and make payment of the amount claimed by the petitioner-wife before it. It appears therefrom that the court did not issue such a warrant of arrest on the very first date or at the very first instance. On the first date, it issued a simple notice directing the opposite party-husband to appear before the court and make payment of the amount claimed by the petitioner-wife before it. Thereafter, on the next date when the court ensured that the said notice had been duly received by the opposite party-husband, but inspite thereof he was not entering his appearance before the court, nor taking any steps for paying the arrear maintenance in question, it was then only that the court issued the impugned warrant of arrest do not find any fault on the part of the court below in making such an order. What else it could do under the circumstances when the party was avoiding his appearance before the court in spite of having received the notice? 5. In support of his argument Mr. Mukherjee has cited a decision of this Hon'ble Court reported in 1998 Cr. L.J. 907, Dipankar Banerjee vs. Tanuja Banerjee. In the said judgment it has been held that the Magistrate has no jurisdiction to issue warrant of arrest straightaway against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the court without first levying the amount due as fine and without making any attempt for realisation of that fine in one of the modes for recovery of that fine as provided in clauses (a) or (b) of sub-section (1) of section 421 of the Cr. P.C. save by issuance of distress warrant for attachment and sale of immovable property belonging to the defaulter. In this case under reference, the warrant of arrest appears to have been issued for the reason of non-payment of maintenance allowance within the time fixed by the court. In the present case the warrant of arrest appears to have been issued in consideration of the fact that the party was not appearing before the court in spite of having received a notice issued by that court directing him to appear. This warrant of arrest has been issued not under any provision of section 125(3) of the Cr. In the present case the warrant of arrest appears to have been issued in consideration of the fact that the party was not appearing before the court in spite of having received a notice issued by that court directing him to appear. This warrant of arrest has been issued not under any provision of section 125(3) of the Cr. P.C. but under section 87 of the Code whereunder it has been provided that a court may in any case in which it is empowered by this Code to issue a summons for the appearance of any person, issue, after recording its reasons in writing, a warrant for his arrest if he fails to appear and the summons is proved to have been duly served in time nor any reasonable excuse is offered for such failure. It should be remembered that this is the general provision provided under the Code to enable a court to issue appropriate process for procuring the attendance of any party to any proceeding and whenever there is a failure on the part of the person against whom summons or notice is sent at the first instance to appear before the court in obedience to the dictates of the said summons or notice, the court has got the power to issue warrant of arrest for the purpose. Therefore, the order by which the court issued a warrant of arrest in the instant case for procuring the appearance of the opposite party-husband, when he was found to have not responded to the notice already issued by the court and received by him, cannot be said to be an order passed under section 125(3) of the Cr. P.C. Under that section a distress warrant is meant and not a general warrant of arrest for the simple purpose of procuring the attendance of any party to the court. So the abovementioned ruling will have no manner of application to the present case where the stage of issuing a distress warrant has not yet arrived. 6. In view of the aforesaid reasons, I do not find any merit in the contention of Mr. Mukherjee, learned advocate for the petitioner and in the result the revisional application is dismissed and the impugned order of the learned court below be affirmed. 7. Interim order, if any, be vacated. 8. 6. In view of the aforesaid reasons, I do not find any merit in the contention of Mr. Mukherjee, learned advocate for the petitioner and in the result the revisional application is dismissed and the impugned order of the learned court below be affirmed. 7. Interim order, if any, be vacated. 8. The learned court below be informed of this order forthwith so that it may take up the application under section 125 of the Cr. P.C. in question pending before it for hearing without any further delay. 9. Let urgent xerox certified copy of this order be given to the learned advocates for both parties as early as possible. Revision application dismissed. Interim order vacated.