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Allahabad High Court · body

2020 DIGILAW 90 (ALL)

Rakesh Kumar v. State of U. P.

2020-01-09

MANJU RANI CHAUHAN

body2020
JUDGMENT : 1. At the time of filing of the present petition, certified copy of the impugned order has not been annexed along with the present petition. 2. Today, a supplementary affidavit has been filed on behalf of the petitioner enclosing certified copy of the order impugned. The same is taken on record. 3. Heard Mr. S. Sengar, learned counsel for the petitioner and the learned A.G.A. for the State as also perused the material on record. 4. Learned counsel for the petitioner and the learned A.G.A for the State agree that the present petition may be disposed of at this stage without calling for counter affidavit in view of the order proposed to be passed today. 5. Normally this Court would have issued notice to opposite party no.2 to contest the matter by filing counter affidavit either by herself or through counsel, but no purpose would be served by keeping the application pending. However, it shall be open for opposite party no.2 to file an appropriate application, if she feels so aggrieved. 6. The present criminal revision has been filed to quash the judgment and order dated 20th September, 2019 passed by the Principal Judge, Family Court, Auraiya in consequential proceedings of Case No. 397 of 2013 (Subodhani @ Saloni & Another Vs. Sukant @ Rakesh Kumar), under Section 125 (3) Cr.P.C., whereby the Principal Judge has issued non-bailable warrant against the petitioner. 7. Learned counsel for the petitioner submits that the petitioner married opposite party no.2 on 8th December, 2010. Out of the aforesaid wedlock, a baby girl was born. However, after some time, the relationship between the husband and wife i.e. petitioner and opposite party no.2 became strained and incompatible. Thereafter the opposite party no.2 has initiated several litigations against the petitioner. In connection with the same, she along with her daughter filed an application under Section 125 Cr.P.C. before the Family Court, Auraiya, which has been registered as Case No. 397 of 2013. The said application has been allowed by the Principal Judge, Family Court, Auraiya vide judgment and order dated 8th January, 2019 and the petitioner has been directed to pay Rs. 5,000/- per month to his wife i.e. opposite party no.2, namely, Subodhi @ Saloni and Rs. 7,000/- per month to his daughter, namely, Kumari Riya till the date of her majority as maintenance allowance. 5,000/- per month to his wife i.e. opposite party no.2, namely, Subodhi @ Saloni and Rs. 7,000/- per month to his daughter, namely, Kumari Riya till the date of her majority as maintenance allowance. Thereafter the opposite party no.2 along with his daughter instituted Misc. Case Nos. 130 of 2018, 107 of 2019 and 83 of 2019 (Subodhani @ Saloni & Another Vs. Sukant @ Rakesh Kumar) under Section 125 (3) Cr.P.C. in the Court tof Principal Judge, Family Court, Auraiya. After notice being received, petitioner also filed his objection under Section 125 (4) Cr.P.C. in the aforesaid execution cases but the same has been rejected by the Principal Judge vide order dated 19th September, 2019 and on the next date i.e. 20th September, 2019 has straight-way issued Non-Bailable Warrant directing the petitioner to send him in jail. It is against this order that the present petition has been filed. 8. Learned counsel for the petitioner submits that the impugned order passed by the Principal Judge, Family Court, Auraiya dated 20th September, 2019 is wholly illegal as he has no jurisdiction to issue non-bailable warrant against the petitioner under Section 125 (3) Cr.P.C. for execution of his order awarding maintenance allowance to opposite party no.2 and his daughter Section 125 (3) Cr.P.C. specifically provides for issuance of a warrant for levying the amount issued in the manner provided for levying fines. Learned counsel for the petitioner has referred to Section 421 Cr.P.C., which enacts the provisions regarding issuance of warrant for levying of fine. Learned counsel for the petitioner further submits that when a specific procedure has been provided for execution of the order of maintenance of Family Court, the issuance of Non-Bailable Warrant by the Principal Judge, Family Court against the petitioner is illegal and, therefore, the impugned order is liable to be quashed. In support of his aforesaid submissions, learned counsel for the petitioner has placed reliance upon the following judgments of Gauhati High Court, Calcutta High Court and Punjab and Haryana High Court: 1. Hazi Abdul Khaleque Vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843; 2. Dipankar BAnerjee Vs. Tanuja Banerjee reported in 1998 CriLJ 907; and 3. Om Prakash @ Parkash Vs. Vidya Devi reported in 1992 CriLJ 658. 9. Per contra, Mr. Hazi Abdul Khaleque Vs. Mustt. Samsun Nehar, 1991 CriLJ, 1843; 2. Dipankar BAnerjee Vs. Tanuja Banerjee reported in 1998 CriLJ 907; and 3. Om Prakash @ Parkash Vs. Vidya Devi reported in 1992 CriLJ 658. 9. Per contra, Mr. Prashant Kumar, learned A.G.A. for the State has opposed the submissions made by the learned counsel for the petitioner by contending that that the applicant is a defaulter and has not paid any amount as awarded by the Family Court under order dated 8th January, 2019 to opposite party no.2 and her daughter as interim allowance. Therefore, the Family Court has rightly passed the order issuing non-bailable warrant against the applicant for realization of the amount so due and there is no error in the order impugned. 10. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present criminal revision. 11. Before coming to the merits of the present case, it would be worthwhile to reproduce Sections 125 (3) and 421 Cr.P.C., which read as follows: “125. Order for maintenance of wives, children and parents. …... (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. ….......” “421. Warrant for levy of fine. ….......” “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: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner In which warrants under clause (a) of subsection (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.” 12. On a plain reading of sub-section (3) of Section 125 Cr.P.C., it is apparently clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due to in manner provided for levying fines for every breach of the order. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. Section 421Cr.P.C. prescribes the manner for levying fine and clause (a) of sub-Section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realization of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may seized in execution of such warrant. Sub-section (3) of Section 125 Cr.P.C. makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the maintenance allowance, in warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence. 13. It is further apparent that the Magistrate has no jurisdiction to issue warrant of arrest straight way 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 reaslization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant. 14. In view of aforesaid, this Court finds that the Principal Judge, Family Court, Auraiya, it is apparently clear, has misdirected himself in providing for issuance of warrant of arrest in default of payment of arrears maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 20th September, 2019 is hereby set aside. The order directing issuance of warrant of arrest is patently illegal and not warranted by law. Order dated 20th September, 2019 is hereby set aside. Let the Principal Judge pass a fresh order in the aforesaid execution cases filed by opposite party no.2 in light of the observations made herein above. 15. Subject to the observations made above, the present petition is allowed.