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Kerala High Court · body

2009 DIGILAW 160 (KER)

T. K. Ramakrishnan v. Subhadra

2009-02-18

R.BASANT

body2009
Judgment : Can the pace of execution proceedings before the Family Courts under S.125 Cr.P.C, be quickened? Should warrants both under Ss.421(1)(a) and (b) Cr.P.C. be issued invariably in every case before a sentence of imprisonment is imposed under S.125(3) Cr.P.C. for recovery of the amount payable? Is it the law that the courts, even after being satisfied that the defaulter has no movable or immovable property, must ritualistically issue warrants both under Ss.421(1)(a) and (b) Cr.P.C. and wait for the return of both warrants before passing an order imposing sentence under S.125(3) Cr. P.C.? Do the decisions in Nithiyanandan v. Radhamani (1980 KLT 537) and Kuttappan v. Vijayamma (2001 (3) KLT 451) insist on inflexible adherence to such a procedure? These questions of relevance have come up for consideration before me in this R.P.(F.C.). 2. My experience in this jurisdiction shows that there is lot of avoidable unnecessary delay in the expeditious execution of orders under S.125(3) Cr.P.C. and it is hence that I wanted these aspects to beargued in detail. Both counsel have helped this Court to consider these questions. Advocate Mr. K.P. Sudheer was requested to assist this Court as amicus curiae. I must mention that the learned counsel has been of great help to this Court and has assisted this Court with his in depth research on the subject. 2A. To the vital and crucial facts first. The 1st respondent herein-the wife, claimed maintenance under S.125 Cr.P.C. The claim was staked and the petition was filed on 17.2003. The proceedings was numbered as M.C.No.64/03. Long later on 30.11.2005, an order was passed under S.125 Cr.P.C. obliging the petitioner herein to pay an amount of Rs.800/-per mensem with effect from 17.2003. Within one year of the date of the order under which the amounts became due, the respondent/wife filed an application for execution of the order, on 18.2006 claiming the amounts due from 17.2003 to 18.2006. 3. Theapplication for execution was received on file. Notice was issued. The petitioner was served. He entered appearance through counsel. He requested for time to make payment. He did not make any payment. In these circumstances, at last distress warrant under S.421(1)(a) was issued initially; but no amounts were recovered. No warrant was issued under S.421(1)(b) Cr.P.C. On 12.2007 a nonbailable warrant was issued. The petitioner was arrested long later and was produced before court on 10.2007. He requested for time to make payment. He did not make any payment. In these circumstances, at last distress warrant under S.421(1)(a) was issued initially; but no amounts were recovered. No warrant was issued under S.421(1)(b) Cr.P.C. On 12.2007 a nonbailable warrant was issued. The petitioner was arrested long later and was produced before court on 10.2007. He was remanded to custody. He was heard and on 110.2007 the impugned order was passed sentencing the petitioner to undergo simple imprisonment for a period of two years. The petitioner challenges that order in this Revision Petition. 4. Four specific contentions are raised by the learned counsel for the petitioner. First of all it is contended that the petition for execution was filed only on 18.2006 and the claim was "for execution of the order of maintenance for the period from 17.2003 to 18.2006 -a period of exceeding one year. The contention is that under S.125 Cr.P.C. a warrant can be issued only for recovery of maintenance for a period of 12 months. 5. I find no merit in this contention at all. The first proviso to S.125(3) Cr.P.C. on which reliance is placed reads as follows: "Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due." (emphasis supplied) 6. In this case maintenance became due as per the order dated 30.11.2005. Even tough the claim was filed on 17.2003, the amount became due and payable only when the order under S.125 was passed on 30.11.2005. The petition for execution was filed on 18.2006 i.e., within one year of 30.11.2005, and, in these circumstances, there is no merit in the contention that the first proviso bars the claim because the amount claimed is for a period of 37 months. The mandate of the first proviso is only that warrant for recovery can be issued only if the claim for recovery is staked within a period of one year from the date on which the amount became due. In the instant case, the amount became due (i.e., for the period from 17.2003) only on 30.11.2005 the date of the order. The mandate of the first proviso is only that warrant for recovery can be issued only if the claim for recovery is staked within a period of one year from the date on which the amount became due. In the instant case, the amount became due (i.e., for the period from 17.2003) only on 30.11.2005 the date of the order. The petition for execution having been filed on 18.2006, I find no merit in the contention that the first proviso to S.125(3) Cr.P.C. bars the steps taken for recovery. 7. It is next contended that warrants of arrest under Ss.421(1)(a) and (b) Cr.P.C. have not been executed and the sentence under S.125(3) has been imposed before the execution of the warrants. The records show that a distress warrant under S.421(1)(a) was issued and was returned unexecuted. It is further seen that no warrant was issued under S.421(1)(b) Cr. P.C. It is thereafter that the warrant of arrest was issued to procure the presence of the petitioner. 8. The learned counsel for the petitioner contends that issue and return of warrants both under S.421(1)(a) and (b) must both precede an order imposing a sentence passed under S.125(3) Cr.PC. Inasmuch as no warrant has been issued under Ss.421(1)(b), the learned counsel contends that the order passed under S.125(3) Cr.P.C. is not justified. 9. It will now be appropriate to refer to S.125(3) which speaks of execution of the order of maintenance passed under S.125. I extract the same below: "125. Order for maintenance of wives, children and parents. xxx xxx xxx (3) If any person so ordered fails without sufficient cause to comply with 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 may sentence such person, for the whole, or any part of each months allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be, 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." (emphasis supplied) 10. It will be apposite straightaway to note that earlier under 1861 Code the expression used was "or" and it was in the 1898 Code the expression "or" was substituted by the expression "and". The same provision was transplanted into 1973 Code also. 11. It will be apposite straightaway to note that earlier under 1861 Code the expression used was "or" and it was in the 1898 Code the expression "or" was substituted by the expression "and". The same provision was transplanted into 1973 Code also. 11. It is now trite that the sentence imposed under S.125(3) Cr.P.C. is not a sentence stricto senso and is only a mode of enforcement of the order employed by the Court to recover the amount of maintenance. Any interpretation of the provisions of S.125(3) Cr.P.C. must therefore be done conscious of the nature of the proceedings. The hapless and helpless claimant comes to the court with a claim for maintenance and the court on being satisfied about the justice of the claim awards such maintenance. It is absolutely necessary and essential that such an order directing payment of maintenance must be executed with expedition and without compelling the hapless claimant to frequently come to the corridors of the court unnecessarily. R.190 of the Criminal Rules of Practice as also R.11(2) of the Family Courts (Procedure) Rules also impress upon us the need for expeditious execution of such orders passed. 12. The crucial question that is posed before me is whether steps under Ss.421(1)(a) and (b) Cr.P.C. must both be resorted to before a sentence is imposed under S.125(3) Cr.P.C. A reading of S.125(3) makes it crystal clear that steps for recovery by issue of warrant have to precede the imposition of a sentence imposed. The very language of S.125(3) does not admit of any doubt on that aspect. That position has been accepted in the decisions in Nithiyanandan and Kuttappan (supra). There can be no doubt on this aspect at all. In so far as Kerala is concerned, it is now settled beyond controversy that no sentence can be imposed under S.125(3) Cr.P.C. without and before an attempt is made to recover the amount in the manner provided for levying fines. Both Nithiyanandan and Kuttappan were concerned with the question whether a sentence can be imposed without and before any steps are taken for recovering the amount in the manner provided for levying fines. 13. Both Nithiyanandan and Kuttappan were concerned with the question whether a sentence can be imposed without and before any steps are taken for recovering the amount in the manner provided for levying fines. 13. I say so because my attention has been drawn to certain decisions of other High Courts which have taken the view that simultaneous issue of warrants for recovery of the defaulted amount and for arrest and detention against the accused would be justified. I am bound by Nithiyanandan and Kuttappan and can only take the view that the attempt to recover the amount in the manner provided for levying fines must precede an order imposing a sentence under S.125(3) Cr.P.C. 14. Advocate Mr.K.P. Sudheer contends that this cannot be an empty and ritualistic formality. He points out that the decisions in Nithiyanandan and Kuttappan are being understood by the Family Courts in such a ritualistic and empty manner. Even when the courts are convinced that it is not necessary to resort to both the methods for recovery under S.421(1)(a) and (b) Cr.P.C., the claimants are compelled to appear before courts unnecessarily awaiting return of warrants both under Ss.421(1)(a) and (b) Cr.P.C. The learned counsel, first of all, contends that at any rate, it is not necessary to exhaust both the methods before proceeding to impose a sentence under S.125(3). One of the two methods alone need necessarily be followed, though, of course, the court in an appropriate case can in its discretion follow both the methods. Secondly, the learned counsel contends that neither Nithiyanandan nor Kuttappan has considered the question whether it is necessary to issue a warrant, even when the court is convinced that there is no movable or immovable property which can be attached and sold for recovery of the maintenance amount under Ss.421(1)(a) and (b) Cr.P.C. 15. The question posed is interesting. The learned counsel Mr.K.P.Sudheer points out that Ss.421(a) and (b) clearly show that no court is obliged to attempt both the methods of recovery. I extract Ss.421(1)(a) and (b) Cr.P.C. below: "421. The question posed is interesting. The learned counsel Mr.K.P.Sudheer points out that Ss.421(a) and (b) clearly show that no court is obliged to attempt both the methods of recovery. I extract Ss.421(1)(a) and (b) Cr.P.C. below: "421. Warrant for levy of fine.-- (1) When an offender has been sentenced to pay a fine the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-- (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter." (proviso is omitted and emphasis supplied) The express language of Ss.421(1)(a) and (b) Cr.P.C. is that either or both of the following ways (i.e., issue a warrant for attachment of movable and issue of a warrant to the Collector to attach the movable and Immovable properties) can be resorted to by the court. I find the said submission to be very impressive. This Court in Nithiyanandan and Kuttappan had no occasion to consider that question. The express language employed by the Code makes it very clear that when it comes to levy of fines the court is not obliged to resort to both the methods under Ss. 421(1)(a) and (b) Cr.P.C. Either of the two or both can be pursued by the court in its discretion. 16. That contention is impressive because if the warrant under S.421(1)(b) Cr.P.C. were returned with an endorsement that the defaulter has neither movable nor immovable property it would be an empty formality and ritual to issue and wait for return of a warrant again under S.421(a) Cr.P.C. The language employed - "either or both" of the following ways, and the nature of the warrants that can be issued under Ss.421 (a) and (b) clearly show that no court is obliged to necessarily to issue warrants both under Ss.421(a) and (b) for levying fines. As noted earlier, the nature of the warrant that can be issued also clearly shows that if the warrant under Cl.(b) is returned unexecuted with the endorsement that the defaulter has no movable or immovable property, it is unnecessary-any imprudent, to resort to the method under S.421 (a) again to recover the amount by destraint of nonexistent movables. 17. I therefore accept the contention that it is not invariably necessary to exhaust both the methods under Ss.421(1)(a) and (b) before imposing a sentence under S.125(3) Cr.P.C. Of course, the language of S.125(3) Cr.P.C. referred to in Nithiyanandan and Kuttappan appears to suggest that ordinarily an attempt to recover the amount by issue of warrant has to precede imposition of the sentence. 18. That takes me to the question whether it is invariably necessary to issue warrants even when the court is convinced that no movable or immovable property is available for attachment under Ss.421 (1)(a) and (b) Cr.P.C. The learned counsel points out that in many cases when two applications are pending simultaneously, separate warrants are issued -both under S.421(1)(a) and (b) in each of such cases and the Family Court awaits return of such warrants in both the cases before proceeding to impose a sentence under S.125(3) Cr.P.C. If once warrant has already been issued and the Court is convinced that there is no movable or immovable property of the defaulter available to be attached, it is unnecessary to continue to issue such warrants, contends the counsel. 19. I find merit in this contention. Issue of warrants for recovery of the maintenance amount under S.125(3) Cr.P.C. need not be pursued as a mere ritual. Where the court is satisfied on materials that no purpose will be served by issue of such a warrant, I find no reason why such warrant should be issued at all. Under S.125(3) Cr.P.C., the learned Magistrate (the Family Court now) is given discretion and the expression used is "may". He has power to issue a warrant for levying the defaulted amount in the manner provided for levying fines. That discretion, according to me, is not taken away by the decisions in Nithiyanandan and Kuttappan. Under S.125(3) Cr.P.C., the learned Magistrate (the Family Court now) is given discretion and the expression used is "may". He has power to issue a warrant for levying the defaulted amount in the manner provided for levying fines. That discretion, according to me, is not taken away by the decisions in Nithiyanandan and Kuttappan. Where the court is convinced that issue of such warrant will serve no purpose at all on the basis of the materials before it, I am of opinion that the court can certainly save time by not issuing warrant ritualistically and waiting for return of such warrants. In this context my attention is drawn to the decision of a Division Bench of the Orissa High Court in Rajendra Kumar Pradhan v. Pramila Pradhan (1993 Cri. L.J. 3813). For the sake of clarity, I am extracting the entire para.10 of that decision below: "The aforesaid being the position and the language of S.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 S.421 comes to and 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 S.125 to destitutes would be almost rendered nugatory. The high purpose which S.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 S.125 are entitled to receive through the agency of the criminal court would become a mirage. We would further observe that in (such) a case distress warrant may not be insisted upon. We would further observe that in (such) 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 we found to be by two learned Judges of two High Courts in cases of Ataullah (AP) and Bhure (MP)." (emphasis supplied) 20. Similar view, it is seen, is taken earlier by the two Benches of the Andhra Pradesh and Madhya Pradesh High Courts in P. Ataullah v. Memunisa Begum (1984 Cri. L.J. 1522) (AP)) and Bhure v. Gomatibai (1981 Cri. L.J. 789 (MP)). 21. It will be relevant to note that in the instant case even the petitioner has no case that he has any movable or immovable property or that the defaulted amount can be recovered by issue of warrant under Ss.421(1)(a) or (b). It is in such cases that unnecessary wastage of time is caused by waiting for issue and return of such warrants. I have no hesitation to agree that neither Nithiyanandan nor Kuttappan insists on such unnecessary wastage of time. Every court must ensure that the amounts awarded under S.125 Cr.P.C. are recovered and the benefits are made available to the claimants without, unnecessary loss of time. Of course, the human rights persuasions of the courts must insist that no person is sent to prison unnecessarily if the amounts can be recovered from the movable or immovable property belonging to him. But in such a case, certainly the response of the defaulter can be elicited and if even according to him he has no movable or immovable property. I find no reason why the Family Court must wait for issue and return of warrants both under Ss.421(1)(a) and (b) Cr.P.C. 22. Family Courts can certainly adopt a more user friendly procedure to ensure that there is no unnecessary delay in the execution of orders passed under S.125 Cr.P.C. The claimants, who want orders to be executed, can be directed to file affidavits to confirm that there has been default and that recovery is possible or not possible by issue of warrants for the attachment of movable or immovable property of the defaulter. If such affidavits are filed and movable or immovable properties are specified, warrants can straightaway be issued under S.421(1)(a) and/or (b) Cr.P.C. to recover the amounts by attachment of such movable or immovable properties. If such affidavits are filed and movable or immovable properties are specified, warrants can straightaway be issued under S.421(1)(a) and/or (b) Cr.P.C. to recover the amounts by attachment of such movable or immovable properties. On the contrary, if there is an assertion in such affidavits that the defaulter has no movable or immovable property notice can be ordered to the defaulter and his response can be ascertained. If he would not dispute the assertion that movable or immovable properties are not available for attachment, it would be idle and unnecessary for the Family Court, to wait for issue and return of such warrants. Such procedure adopted by the Family Courts, I am satisfied, shall certainly quicken the pace of execution of orders passed under S.125 Cr.P.C. But the Family Court, if it adopts the course of not issuing warrants must clearly indicate in its order the reasons for adopting such course. Ordinarily attempt to recover the amounts by issue of warrant must precede the imposition of sentence under S.125(3) Cr.P.C. 23. These observations are not at all made to take away the discretion/obligation which the Family Court has in an appropriate case to attempt to recover the defaulted amounts under S.125 Cr.P.C. by resort to either or both the methods under Ss.421(a) and (b). That discretion must be exercised by the Family Courts conscious of the purpose of the statutory provision and aware of the decisions in Nithiyanandan and Kuttappan as considered and explained in this decision. 24. Advocate Mr. K.P. Sudheer points out that the warrants issued are not returned within reasonable time and this contributes to the delay in execution before the Family Courts. He further points out that R.190 of the Criminal Rules of Practice clearly shows that in such warrants time for return can be specified and it is not necessary to endlessly wait for return of such warrants. I need only mention that the Family Courts must insist that the warrants are issued specifying the outer limit of time for return of warrant and appropriate decisions/action is to be taken if such warrants are not returned within the stipulated period of time. Under Rule 190 of the Criminal Rules of Practice time has to be fixed for sale of the attached property and for return of the warrant. 25. Under Rule 190 of the Criminal Rules of Practice time has to be fixed for sale of the attached property and for return of the warrant. 25. In the facts of the case I do note that warrant under S.421(1)(a) Cr.P.C. was issued but no recovery has been effected. There is no contention even for the petitioner that he has any movable or immovable properties or that the amounts due can be recovered by issue of warrant against such properties. His very stand is that he has no movable or immovable properties. In these circumstances, the challenge against the order on the second ground fails. 26. I may attempt to summarise the law and the healthy procedure to be followed under S.125(3) as follows: (1) As per Nithiyanandan and Kuttappan warrant has to be issued ordinarily before imposing a sentence under S.127 (3) and the Family Court may in its discretion issue warrants either under S.421(1)(a) or (b) or both. These decisions do not oblige the Family Court to invariably issue warrants both under S.421(1)(a) and (b). (2) In a case where on materials placed before court the Family Court is satisfied that no useful purpose will be served by issue of warrant under S.421(1)(a) and (b), the Family Court can record the reasons for such satisfaction and proceed to pass appropriate order under S.125(3) Cr.P.C. Nithiyanandan and Kuttappan do not oblige the Family Court to ritualistically go on issuing warrants even when convinced that no useful purpose would be served by such issue of warrant. (3) Family Court can insist that all claimants along with the application for execution under S.125(3) Cr.P.C. must file an affidavit to confirm default. In such affidavits the claimants must be obliged to state the movable or immovable properties if any against which warrants to attach and sell under S.421 Cr.P.C. must be issued. If there be no such properties the claimants must be obliged to state that also in such affidavits. (4) In a case where the claimant swears that there is no such properties and the defaulter does not assert contra and the court is convinced that there is no such property against which warrants can be issued under S.421 Cr.P.C. that conclusion and reasons thereof can be recorded and it is not then necessary to issue warrants under S.421 Cr.P.C. ritualistically against such non-existent properties. A sentence under S.125(3) Cr.P.C. can then be passed. (5) If there be any movable or immovable properties available to be proceeded against, needless to say attempt must be made to recover the amount by attachment and sale of such properties and only thereafter the mode of enforcement by sentencing the defaulter under S.125(3) Cr.P.C. need be resorted to. 27. The learned counsel for the petitioner thirdly contends that in a case where the warrants issued under Ss.421(1)(a) and (b) are returned with the endorsement that the amounts cannot be recovered, it must be found that there is no wilful default and no sentence should be imposed under S.125(3) Cr.P.C. I am unable to accept this contention. The very language of S.125(3) shows that sentence can be imposed when the default continues even after return of warrants without execution. The language of S.125(3) Cr.P.C. does not at all persuade me to accept that a person who has no movable or immovable property which can be attached and sold in execution of warrants issued under S.421(1)(a) and (b) can for that reason alone successfully contend that his failure was not without sufficient cause. This contention cannot be accepted. The law is that even an able bodied person must work and support the claimants. If that be so, the fact that he has no movable or immovable property is no reason to exempt him from the consequence of non-payment and suffering of a sentence of imprisonment under S.125(3) Cr.P.C. The challenge on the 3rd ground hence fails. 28. The learned counsel for the petitioner fourthly contends that the sentence imposed is excessive and that, at any rate, imposition of a sentence of imprisonment for two years for default in payment of maintenance for a period of 37 months is not justified. I am unable to accept this contention. It is brought to my notice that not a paisa has been paid after the order passed under S.125(3) Cr.P.C. The 4th contention that the sentence of imprisonment is excessive does not at all satisfy me. 29. This Revision Petition is, in these circumstances, dismissed. 30. The Registry shall communicate copies of this order to all Family Courts in the State drawing their specific attention to para. 26 of this order.