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2015 DIGILAW 357 (RAJ)

Rajlaxmi v. Dharmendra

2015-02-09

VIJAY BISHNOI

body2015
JUDGMENT : 1. This criminal misc. petition under section 482 CrPC has been filed by the petitioners being aggrieved with the order dated 26.10.2013 passed by Special Judge, S.C./S.T. (Prevention of Atrocities) Cases, Jodhpur (for short 'the revisional court' hereinafter) in a revision petition preferred on behalf of respondent. In the said revision, the respondent has challenged the order dated 20.09.2013 passed by Nyayadhikari, Gram Nyayalaya, Mandore, Jodhpur (for short 'the trial court' hereinafter) in Cr. Misc. Case No. 82/2013, whereby the trial court, while disposing of the application filed by the petitioners under Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 (for short 'the Rules of 2006' hereinafter) and section 125(3) CrPC has ordered for sending the respondent for thirty days' civil imprisonment on account of his failure to pay the amount of maintenance as directed by the trial court while disposing of the proceedings under section 12 of Protection of Women from Domestic Violence Act, 2005 (for short 'the Act of 2005' hereinafter). 2. In the said order, the trial court has also ordered that if the respondent pays the maintenance amount before 19.10.2013, he may be released from the prison. 3. Brief facts of the case are that on the proceedings initiated at the instance of the petitioners under section 12 of the Act of 2005, the trial court has directed the respondent to pay maintenance to the petitioners to the tune of Rs. 16000/- per month from the date of filing of application. When the respondent failed to pay the said maintenance amount, the petitioners have filed an application before the trial court and prayed that a warrant for recovery of levying amount due be issued and the respondent be sent for a period of one month civil prison for non-payment of maintenance amount. In the said proceedings, the respondent was arrested and produced before the trial court, where he had refused to pay the maintenance amount, then the trial court vide order dated 20.09.2013, has ordered to send him to civil prison for thirty days. 4. In the said proceedings, the respondent was arrested and produced before the trial court, where he had refused to pay the maintenance amount, then the trial court vide order dated 20.09.2013, has ordered to send him to civil prison for thirty days. 4. The order of trial court dated 20.09.2013 was challenged by the respondent before the revisional court and it has reversed the order of trial court vide order dated 26.10.2013 while holding that before sending the respondent to the civil jail, the trial court has not taken into consideration the fact whether the proper course has been adopted in issuance and execution of the warrant for recovery of the due maintenance amount. The revisional court has also observed that as per Rule 6(5) of the Protection of Women from Domestic Violence Rules, 2006 (for short 'the Rules of 2006' hereinafter) the order passed under section 12 of the Act of 2005 is enforceable in the same manner laid down under section 125 CrPC but the trial court has not elaborated that how the proceeding in respect of recovery of levied amount is to be followed. It is also observed that the respondent cannot be detained without obtaining the details of the movable and immovable properties belonging to him. The revisional court while setting aside the order dated 20.09.2013 passed by the trial court remanded the matter to it. 5. Being aggrieved with the order dated 26.10.2013, the petitioners have preferred this criminal misc. petition while claiming that the revisional court has erred in setting aside the order of sending the respondent to civil jail for thirty days, only on the ground that the proper process has not been followed in issuance and execution of the warrant for recovery of the maintenance amount. 6. Learned counsel for the petitioners has submitted that under Rule 6(5) of Rules of 2006, it is provided that the orders passed under section 12 of the Act of 2005 are enforceable in the same manner as laid down under section 125 CrPC, however as per section 125(3) CrPC, the power of the Magistrate of sending a person to civil prison for a period of one month on account of his failure to pay the maintenance amount is altogether independent from issuance and execution of warrant for recovery of due maintenance amount. It is contended that both the powers are independent and the trial court can exercise the said powers simultaneously, therefore, the order passed by the revisional court is bad in the eye of law and the same is liable to be set aside. In support of his contention, learned counsel for the petitioners has placed reliance on decision of Hon'ble Supreme Court in Jolly George Varghese & Anr. v. The Bank of Cochin, AIR 1980 SC 470 ; decision of this Court in Kashmir Singh v. Kartar Kaur, 1988 (1) WLN 164 ; decision of Kerala High Court in K.M.C. Mahin v. State of Kerala & Ors., 2014 (1) KLJ 269 ; decision of Orissa High Court in Bhakta Bhuyan v. Smt. Savitri Bhuyan, (1991) 71 CLT 110 and a decision of Gujarat High Court in Suo Motu v. State of Gujarat, 2009 Cri.LJ 920. 7. Despite service of notice, none appears on behalf of the respondent. 8. Heard learned counsel for the petitioners and perused the orders passed by both the courts below. 9. Rule 6(5) of the Rules of 2006 is reproduced hereunder: "6(5) The applications under section 12 shall be dealt with and the orders enforced in the same manner laid down under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974)." 10. In the decisions referred by the counsel for the petitioners, the principle of law laid down is that as per section 125(3) CrPC, the Magistrate is empowered to exercise both powers to the exclusion of each other as well as simultaneously and it is held that if the warrant remains unexecuted, it does not mean that the order of imprisonment cannot be passed. It is further observed that as sub-section (3) of the section 125 CrPC confers both the powers on the Magistrate, a Magistrate can issue warrant for levying the amount due and even if the warrant remained unexecuted, pass an order for civil imprisonment to the extent as provided. 11. It is further observed that as sub-section (3) of the section 125 CrPC confers both the powers on the Magistrate, a Magistrate can issue warrant for levying the amount due and even if the warrant remained unexecuted, pass an order for civil imprisonment to the extent as provided. 11. This Court in Kashmir Singh v. Kartar Kaur (supra), while interpreting section 125(3) CrPC, after taking into consideration various decisions of other High Courts, has held as under: "Thus it would appear well settled that the Magistrate is empowered to exercise both the powers to the exclusion of each other as well as simultaneously and the maximum sentence that can be ordered is one month for each month's default or default for any part of each month." 12. In view of the above discussions, this Court is of the opinion that the revisional court has erred in setting aside the order passed by the trial court dated 20.09.2013 and, therefore, this Court finds substance in this criminal misc. petition. Hence, this criminal misc. petition is allowed. The order dated 26.10.2013 passed by the revisional court is set aside.