SHIV CHAND Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the revisionist and the learned AGA. This criminal revision has been filed against order dated 26.7.2010 passed by Judicial Magistrate, Mau, in case no.4001 of 2006 Pyari Vs. Shiv Chand by which the revisionist has been directed to be detained in jail for one year rigorous imprisonment for default of payment of amount of maintenance. Learned counsel for the revisionist has submitted that under the provisions that Section 125(3) of the Cr.P.C., a Magistrate has no jurisdiction to impose punishment for a term which may extend to one month or until payment if sooner is made. It has also been submitted that a Magistrate cannot impose a composite sentence for the default and he is obliged to pass separate orders for separate defaults. Learned AGA has defended the impugned order.

(2.) THE Execution Case No.4001 of 2006 Pyari Vs. Shiv Chand was pending before the Court of Judicial Magistrate, Mau in which the application was submitted on behalf of the applicant that the opposite party was directed to pay a sum of Rs.500/- and Rs.300/- to the applicant nos.1 and 2 as maintenance which was modified to Rs.600/- per month. In compliance of the order of the Court, the revisionist has paid on 26.10.2006 Rs.600/- as maintenance and after that no maintenance has been paid. Therefore, there were dues against revisionist from 22.11.2005 to 22.11.2010. It was also stated that on 11.8.2008 the revisionist-opposite party has been released from jail after a period of one month but still a sum of Rs.48,000/- is due against him. Regarding which he was again detained into custody since 30.6.2010. Learned Magistrate after considering all the facts and circumstances has directed that the revisionist-opposite party shall undergo one year rigorous imprisonment and whatever amount shall be received by the work done by the revisionist, shall be paid to the applicant. Learned counsel for the revisionist has relied upon Iftekhar Husain Vs. Smt. Hameeda Begum 1980 Cri.L.J.,1212 in which, this Court has held that Section 125(3) Cr.P.C. limits the power of the Magistrate to sentence the defaulter for the whole or any part of each months allowance remaining unpaid, after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment, if made sooner.

(3.) LEARNED counsel for the revisionist has further relied upon Shahada Khatoon Vs. Amjad Ali (1999) 5, SCC, 672 in which, Hon'ble the Apex Court has held as under:-