HARBHAJAN KAUR Vs. MAJOR SANT SINGH

JUDGEMENT

(1.) In this application for a certificate of fitness for appeal to the Supreme Court from an order made on revision by this Court in proceedings under section 488, Criminal Procedure Code ., a preliminary objection has been raised that Article 134(l)(c) of the Constitution is inapplicable because proceedings under section 488 are civil proceedings and not criminal proceedings. Reliance in support of this preliminary objection has been placed on a decision of the Supreme Court in Nand Lal Misra v. K. L. Misra, 1960 S.C.R. 4310. Emphasis has been laid on the observations in this judgment that Chapter XXXVI of the Code of Criminal Procedure is a self-contained one and the relief given under it is essentially of a civil nature. From this sentence, it is sought to be argued that the proceedings under section 488 are civil proceedings and not criminal proceedings. Reliance has also been placed on a still more recent judgment of the Supreme Court in Narayan Row v. Ishwar Lal in which while dealing with an appeal from an order made by the Bombay High Court under Article 226 of the Constitution, in a matter pertaining to recovery of income-tax, it was observed that the proceedings were civil proceedings within the meaning of Article 133(1) (c) of the Constitution. Reference has next been made to a Full Bench decision of the Punjab High Court in Kapur Singh v. Union of lndia() where also the question about the nature of proceedings under Articles 133 and 226 of the Constitution came up for discussion. In my opinion, none of these decisions throw helpful light on the question which the preliminary objection poses. Section 488 reads as under:-

(2.) It is obvious that it confers power to order maintenance, on District Magistrates, Presidency Magistrates, Sub-Divisional Magistrates and Magistrates of the 1st Class: Courts which are indisputably criminal Courts and not civil Courts. Sub-section (6) provides that all evidence under this Chapter has to be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader and it is to be recorded in the manner prescribed in the case of summons-cases. This is a further indication that the proceedings are criminal proceedings and not civil proceedings. The argument that there is no penalty imposed by this section and the proceedings, therefore, cannot be described as "criminal" is also unacceptable because according to section 488(3), which provides for enforcement of orders, in certain circumstances, the person in default can be imprisoned for a term which may extend to one month or until payment, if sooner made, though I should not be understood to hold this consideration to be conclusive on the point either way. It is obvious that the proceedings, envisaged by Chapter XXXVI of the Code cannot be considered to be purely civil proceedings, though the person in default, against whom maintenance order is sought, may not be an accused person whose examination without oath is mandatory as prescribed by section 342 of the Code and he may be entitled to appear as a witness as well. I am aware of some conflict of judicial opinion in some old cases where on the ground that the procedure of trying maint enance applications being that of a summons case, failure to examine the person proceeded against under section 342 of the Code, was held to vitiate the proceedings, but that conflict was set at rest by later decisions in which this section was held inapplicable to proceedings under section 488. However, consistently all the Courts dealing with that question had assumed that the proceedings were criminal proceedings governed by the Code of Criminal Procedure, both in regard to the trial and the power of revision of the Court of the Sessions Judge and of the High Court.

(3.) Chapter7-A of Vol. Ill of Rules & Orders of the Punjab High Court dealing with the maintenance cases also recites that proceedings under section 488 of the Code of Criminal Procedure are of a criminal character and the provisions contained therein must, therefore, be strictly followed. Keeping in view the scheme of Chapter XXXVI of the Code of Criminal Procedure and also the scheme of Articles 133 and 134 of the Constitution, I have little hesitation in holding that "proceedings under section 488. Cr.P.C., do fall within the contemplation of criminal proceedings within the meaning of Article 134. The expression "criminal proceedings" in this Article, seems to me to be wide enough to include maintenance proceedings adjudicated upon by Magistrate initiated under Chapter XXXVI. Such maintenance proceedings are, in my view, criminal proceedings, designed by way of summary process to provide to deserted wives and neglected children, adjudication of their civil right of maintenance up to a limited amount, enforceable through criminal Courts, to avoid the notorious delays of civil proceedings, which may still be utilised for fuller relief under the general law in the ordinary civil Courts.