STATE Vs. DORAISWAMY

JUDGEMENT

(1.) This is a reference made under Section 438 of the Code of Criminal Procedure by the Second Additional Sessions Judge, Bangalore, in the following circumstances:

(2.) Respondents 2 and 3 who are mother and daughter respectievly, filed an application for grant of maintenance under Section 488 of the Code of Criminal Procedure against the first respondent, who is the husband of the 2nd respondent. After contest an order awarding a maintenance at the rate of Rs. 50/- per month was passed In favour of respondents 2 and 3 by the City Magistrate, Bangalore. The first respondent did not pay the maintenance so awarded to respondents 2 and 3. Therefore, respondents 2 and 3 made an application on 31-1-1963 and sought for the enforcement of the order of maintenance passed in their favour. They stated in their application that the first respondent is an employee in the Railways Department getting a salary of Rs. 130/-, that he had Intentionally disobeyed the orders passed by the court and had not paid any amount towards the maintenance and that therefore, an order of attachment of Rs. 50/- per month from out of the salary payable to the first respondent may be passed. The learned Magistrate, who entertained this application, passed in order as follows: Issue salary attachment warrant for Rs. 50/- per month. Notice of this application was served on the first respondent. He appeared before the Court and made an application on 20-6-1963 praying for withdrawal of the warrant of attachment of salary. He alleged that the warrant of attachment Issued by the Magistrate was without jurisdiction and in violation of the provisions of Section 60 of the Code of Civil Procedure and the Payment of Wages Act. The learned Magistrate, who heard the arguments advanced on behalf of the first respondent, rejected his application. He held that the provisions of the Code of Civil Procedure were not applicable to proceedings under Section 488 of the Code of Criminal Procedure or recovery warrants therein. The first respondent filed a revision petition against the said order to the Court of the Sessions Judge, Bangalore. The revision petition is purported to have been filed under Section 435 of the Code of Criminal Procedure. The said Revision Petition was beard by the Second Additional Sessions Judge, Bangalore. The learned Sessions Judge was of the opinion that the order passed by the City Magistrate on the application filed by respondents 2 and 3 directing the disbursing officer to attach a sum of Rs. 50/- per month from out of the salary due to first respondent was not legal and was opposed to the provisions of Section 386 Cr. P. C. and has recommended under Section 438 Cr. P. C. the order to be quashed.

(3.) Mr. Mahajan learned High Court Government Pleader who appeared for the State opposed this reference. He contended that the order of attachment passed by the City Magistrate, Bangalore is legal. He urged that if the person, against whom an order (is passed?) under Section 488 of the Code of Criminal Procedure, is a Government servant or an employee of the railway (as the first respondent is) his salary can be attached under the Code of Civil Procedure even though the salary has not become payable to him. He contends that the salary or pay due to a Government servant is 'moveable' property for all purposes and that therefore the Magistrate is competent to issue an order of attachment under Section 380(1) of the Code of Criminal Procedure. He further contended that the tact that the salary had not yet accrued or become payable cannot come in the way of such an order of attachment being issued. But Mr. N. C, Mahajan fairly conceded that such an order can be passed to recover arrears of maintenance already accrued and cannot be made effective in respect of amounts likely to accrue in future. He also fairly conceded that the order passed by the Magistrate can only be effective in respect of the arrears of salary already accrued as arrears and it cannot be effective in so far as it affects the salary which Is likely to accrue from month to month, Mr. Mahajan was unable to support this argument of Ms by citing any of the decisions of the High Courts. On the other hand he brought to my notice two decisions in which the High Courts of Calcutta and Rajasthan have taken a contrary view. In Rajendra Nath Ghose v. Brojabala Ghose AIR 1936 Cal 135 the question as to whether a Magistrate is competent to issue attachment warrant in respect of the salary that has not become due as yet was considered by Debabrata Mookerjee J. His Lordship held that when the Magistrate is required to follow the procedure prescribed in Section 386 Cr, P. C. the salary of the defaulting husband can only be attached in strict compliance of the provisions of Clause (b) of Sub-section (1) of Section 386 Cr. P. C. and not in any other manner. His Lordship further held that if recourse is taken to clause (b) of Sub-section (1) of Section 386 of the Code of Criminal Procedure the provisions of Sub-section (3) are automatically attracted and that the command issued to the Collector by the Magistrate gets impressed with the character of a decree and be-comes executable as a decree passed by the nearest competent civil Court and will then attract the provisions of the Code of Civil Procedure relating to execution of decrees. His Lordship, therefore, held that without taking recourse to Sub-section (1) (b) of Section 386 read with Sub-section (3) of the said section, no order of attachment of the salary of a Government servant or an employee of a private firm can be issued.