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2020 DIGILAW 32 (ORI)

Gangaram Sethi v. State of Odisha

2020-02-03

B.R.SARANGI

body2020
ORDER Dr. B.R. Sarangi, J. 1. Heard Mr. M. Acharya, learned counsel for the petitioner and Mr. G.N. Rout, learned Addl. Standing Counsel. 2. The petitioner has filed this application seeking direction to quash order dated 16.12.2019 passed by the Executive Magistrate, Surada, Ganjam in M.C. No. 82 of 2019 arising out of O.P. No. 198 of 2015, by which the application for grant of bail has been rejected. 3. Mr. M. Acharya, learned counsel for the petitioner contended that due to non-payment of maintenance amount passed in a proceeding under Section 125 Cr.P.C., non-bailable warrant was issued by the Judge, Family Court, Visakhapatnam (Andhra Pradesh) in M.P. No. 17 of 2017 in O.P. No. 198 of 2015. Accordingly, the petitioner was arrested and put behind the bar. It is contended that Section 128 Cr.P.C. never contemplates to put the person behind the bar for realization of the amount. If the NBW is issued under Section 125 Cr.P.C., in the name of execution and if the amount is not realized, in that case the person may be kept behind the bar for a period of one month or until payment sooner made. 4. Mr. G.N. Rout, learned Addl. Standing Counsel contended that in view of the provisions contained under Sections 78 and 79 of the Cr.P.C., procedure has been envisaged that the Magistrate before whom such person arrested is brought under Section 81 of the Cr.P.C. It is contended that since the offence is non bailable, it shall be lawful for the Chief Judicial Magistrate, subject to the provisions of Section 437, or the Sessions Judge of the district in which the arrest is made, on consideration of the information and the documents referred to in sub-section (2) of section 78 to release such person on bail. It is further brought to the notice of the Court that the petitioner already moved the Addl. Sessions, Judge, Bhanjanagar by filing Bail Application No. 572 of 2019, which was rejected vide order dated 02.01.2020. 5. Considering the contention raised by learned counsel for the parties and after going through the records, for just and proper adjudication of the case, Section 125 (3) Cr.P.C. is extracted hereunder:- "3. Sessions, Judge, Bhanjanagar by filing Bail Application No. 572 of 2019, which was rejected vide order dated 02.01.2020. 5. Considering the contention raised by learned counsel for the parties and after going through the records, for just and proper adjudication of the case, Section 125 (3) Cr.P.C. is extracted hereunder:- "3. If any person so ordered fails without sufficient cause to comply' with the 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 month's allowances 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: 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: Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him." 6. On perusal of the aforementioned provisions, it is made clear that if any person fails to comply the order passed by the Magistrate without any sufficient cause, then the Magistrate for every breach of order can issue warrant for levying the amount due in the manner provided for levying the fines, and may sentence such person, for the whole or any part of each month's allowance for the maintenance or the interim maintenance and, or 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. Thereby, the provision itself is ample clear that if the order passed in a proceeding under Section 125 Cr.P.C. for payment of allowance, maintenance or interim maintenance or expenses of proceeding, as the case may be, the Magistrate can issue warrant for levying the amount due in the manner provided for levying the fines. Once such warrant is being executed, for remaining unpaid amount, the Magistrate can put the person to imprisonment for a term which may extend to one month or until payment if sooner made. Admittedly, in the present case the petitioner has not paid the interim maintenance awarded till date and therefore warrant was issued against him and accordingly he was arrested and put to imprisonment for a term which may extend to one month or until payment if sooner made. As such, till date the petitioner has not paid such maintenance amount. Therefore, the maximum penalty to be imposed on the petitioner is only extending to one month and after completion of one month period, the petitioner should have been released by the Magistrate in accordance with law. But fact remains, the petitioner has already behind the bar for more than three months and, as such, there is misinterpretation of the provisions contained under Section 125 Cr.P.C. 7. This question has already been considered by the apex Court in the case of Shaada Khatoon v. Amjad Ali, (2000) 18 OCR (SC) 91, wherein it has been held as follows.- "The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted Sub-section (3) of Section 125 of the Cr.P.C. by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned Counsel for the appellants contends that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned Counsel for the appellants. We are unable to accept this contention of the learned Counsel for the appellants. The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed." In the above view of the matter, this Court is of the considered view that since the maximum penalty has been imposed for a period of one month on execution of the warrant for non-payment of dues, after expiry of the said period, the person has to be released by the Magistrate. In view of such position, necessary steps be taken by the Executive Magistrate, Surada, Ganjam for release of the petitioner as expeditiously as possible. Accordingly, the CRLMP stands disposed of.