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Himachal Pradesh High Court · body

2018 DIGILAW 364 (HP)

Mohammad Arif v. Shabana Qureshi

2018-03-15

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J —The present petition has been preferred by the petitioner for quashing the proclamation dated 17.01.2018, (Annexure (P-1) , requiring presence of petitioner published by Judicial Magistrate 1st Class, Nahan, District Sirmour, in Case No. 197/4 of 2016, titled as Shabana Qureshi versus Mohammad Arif. 2. I have heard the learned Counsel for the petitioner and also perused the record requisitioned from the Trial Court. 3. It is evident from the record that in pursuance to the compromise made on 11.04.2015 before the Lok Adalat, between the present petitioner and the respondent herein, the petitioner had agreed to pay Rs. 2500/- per month, as maintenance to the respondent and on the basis of the said agreement, the petition preferred by the respondent under Section 125 of the Code of Civil Procedure was disposed of by the Judicial Magistrate 1st Class, Nahan, vide order dated 11.04.2015. 4. In default of making payment of maintenance by the petitioner, the respondent has filed an application on 21.07.2016, in the Court of Chief Judicial Magistrate, Sirmour at Nahan, for recovery of maintenance awarded by the Court in pursuance to compromise arrived at between the parties before the Lok Adalat. The said application has been assigned to the Judicial Magistrate 1st Class, Nahan, wherein a notice was issued to petitioner on 1st September, 2016, but the petitioner despite service, did not appear in the Court on 17.10.2016 and he was proceeded ex-parte. 5. During aforesaid proceedings, warrant of attachment of property of the petitioner was also issued on 24.01.2017. Thereafter, on 27.02.2017, the respondent filed an application stating therein that in execution petition filed by her, petitioner, having no movable and immovable property in his name, had failed to appear before the Court and thus, he deserved to be committed to civil imprisonment for his willful failure in making the payment of maintenance, whereupon a show cause was issued to the petitioner as to why he be not committed to civil imprisonment on account of default in making payment of maintenance. 6. 6. Thereafter, an arrest warrant was issued to the petitioner on 05.04.2017 for ensuring his response and presence, but for one reason or another, the petitioner managed to avoid his presence in the Court and execution of the arrest warrants issued for dates 28.04.2017, 17.05.2017, 05.06, 2017, 03.07, 2017 and 16.08.2017, despite the direction of execution of arrest warrant through SHO concerned. Thereafter, non-bailable warrant issued against the petitioner on 16.08.2017 was received with the report that address of the petitioner was not correct, whereupon again non-bailable warrants through SHO for 05.09.2017 was issued against the petitioner. Thereafter also, non-bailable warrants could not be executed despite making efforts for his production on 23.09.2017, 13.10.2017, 03.11.2017, 02.12.2017, 02.01.2018 and 17.01.2018. 7. On 23.09.2017, it was reported by the Incharge, Police Post, Majra that service upon the petitioner could not be effected, as he was reported not to be present in his house for the last one year, whereupon on the same day, i.e. 23.09.2017, an application was moved by the respondent alongwith documents proving that the petitioner was residing in his house within the jurisdiction of Police Post, Majra, Tehsil Paonta Sahib. 8. Lastly, on 17.01.2018, it was reported by the police that father of the respondent had informed that the petitioner had gone to Delhi in those days in connection with his work, who would be informed about the warrants on his return. 9. It is in the aforesaid circumstances that the Judicial Magistrate 1st Class was constrained to publish proclamation under Section 82 of the Code of Criminal Procedure requiring petitioner to appear in his Court on 26.02.2018 to answer the complaint preferred by the respondent under Section 127 of the Code of Criminal Procedure. Instead of appearing before the Trial Court, may be apprehending his detention on account of his past conduct, petitioner filed present petition on 24.02.2018 in this Court, seeking quashing of the impugned proclamation, which was listed in the Court on 01.03.2018. On that day, record of the Trial Court was requisitioned with direction that petitioner may not be arrested in pursuance to the impugned warrant of proclamation. 10. Chapter VI of the Code of Criminal Procedure deals with process to compel appearance, wherein a complete mechanism has been provided for a person, against whom proclamation has been published. On that day, record of the Trial Court was requisitioned with direction that petitioner may not be arrested in pursuance to the impugned warrant of proclamation. 10. Chapter VI of the Code of Criminal Procedure deals with process to compel appearance, wherein a complete mechanism has been provided for a person, against whom proclamation has been published. Therefore, the petitioner, instead of filing present petition, should have approached the Court issuing the warrant of proclamation. 11. In view of the facts and circumstances of the case, as discussed above, I find no illegality, irregularity, error of exercising jurisdiction or any other infirmity with regard to the issuance of the impugned warrant of proclamation against the petitioner. Therefore, the petitioner is directed to appear before the Judicial Magistrate 1st Class, Nahan and to take recourse available to him under law. 12. It is revealed from record that case before the Trial Court is fixed for tomorrow, i.e. 16.03.2018. It would not be possible to make record available to Judicial Magistrate 1st Class by tomorrow. Therefore, the petitioner is directed to appear before the Judicial Magistrate 1st Class, Nahan on 23.03.2018, who shall pass an order in accordance with law, considering the material placed before him, without being influenced by any observation made in this judgment. 13. In view of the conduct of the petitioner, he is also directed to pay the cost of Rs. 5,000/- to be payable to the respondent on or before the next date of hearing before the Judicial Magistrate 1st Class. 14. The petition is disposed of in above terms with further direction that the petitioner shall not be arrested till 23.03.2018 in pursuance to the impugned proclamation warrant. 15. Registry to convey this judgment to the Trial Court and also to return the record forthwith. A copy of this judgment shall also be sent to respondent free of cost with registered A.D. 16. Pending application(s) , if any, also stands disposed of. Copy dasti.