MATOLI Vs. RUKMANI

JUDGEMENT

(1.) AS there has been a difference of opinion between us, the record of the case be placed before the Hon'ble the Chief Justice for referring it to a third Judge or to a Full Bench as he may deem proper (Per S. Malik, J.)- Ordinarily, this application under section 482 of the Code of Criminal Procedure, 1973 (here inafter referred to as the new Code) should have been disposed of by a learned Single Judge of this Court. It has been referred to this revision Bench because Bakshi, J. in Nethu v. Smt. Bhuri(1), took a view contrary to the view taken by three other Judges of this Court in three unreported cases (vide Surjit Singh v. Manjit Kaur and other's Criminal Miscellaneous Case No. 4481 of 1975, decided on 18-2-1976 by Katju J. ; Dwarika Prasad Dutta v. Kanchan Rani and others, Criminal Miscellaneous Case No. 2300 of 1976, decided on 12-10-1976 by J. P. Chaturvedi, J. and Hari Prasad Kurael v. Jagrani and another, Criminal Miscellaneous Case No. 2700 of 1976, decided by me on 26-11-1976). The controversial question of law which has arisen is whether after the 1st of April, 1974 or in other words, after the new Code came into force an application for enforcement of an order for maintenance passed under section 488 (1) of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code) could be moved in the Court of the Executive Magistrate who had passed the order granting mainten ance under section 488(1) of the old Code or in other words, whether after the new Code came into force, such an application could be moved under sub section (3) of section 488 of the old Code. To my mind, the provisions of sec tion 484 of the new Code provide a complete answer to the question. Sub-section (1) of section 484 of the new Code lays down :- "The Code of Criminal Procedure, 1898 is hereby repealed." Therefore the old Code ceased to exist with effect from the date the new Code came into force. Sub-section (2) of section 484 kept the old Code alive or in other words, gave a new lease of life to the old Code only for the limited purposes enume rated therein. Clause (a) of sub-section (2) of section 484 of the new Code lays down ; "if, immediately, before the date on which this Code comes into force, there is any.........application......... pending, then, such......application shall be disposed of, continued,......in accordance with the provisions of the Code of Criminal Procedure, 1898 as in force immediately before such commencement.........as if this Code had not come into force." The words appearing in clause (a), relating to a pending appeal, trial, in quiry or investigation have been omitted as they are not relevant for the purposes of this case and to bring out clearly the provision of law relating to an 'applica tion'. It is apparent from the words quoted that the provisions of the old Code would apply and an application for enforcement of an order granting main tenance could be disposed of or continu ed according to the provisions of the old Code only if such an application was made before the new Code came into force or in other words, if such an application was pending immediately before the date on which the new Code came into force. The words "held or made........." appearing in clause (a) of sub-section (2) of section 484 apply to "......a trial or an inquiry or investiga tion", but even the 'trial', 'inquiry' or 'investigation' must have been pending immediately before the dates the new Code came into force. If it was not pending on that date, it could not be 'held' or 'made' under the provisions of old Code. To put it succinctly, the old Code has been kept alive only for disposing of appeals, applications, trials, inquiries or investigations which were pending immediately before the date on which the new Code came into force, and if it was not so pending, the old Code will not apply and the new Code has to be applied. In other words, an appeal or an application, or a trial, or an inquiry or an investigation which was not pending on the date on which the new Code came into force, could not be filed or started under any provi sion of the old Code after the new Code came into force and the old Code stood repealed. The next question which may be considered is whether an application, moved after the new Code came into force, for the enforcement of an order granting maintenance under section 488 of the old Code could be deemed to be an application pending immediately before the date on which the new Code came into force within the meaning of clause (a) of sub-section (2) of section 484. A perusal of section 488 of the old code will show that the Magistrate under the old Code or in other words, an Exe cutive Magistrate had to pass an order for maintenance of wives and children under section 488 (1). He could make the order granting maintenance under sub section (1) of section 488 effective from the date of the order or from the date on which the application for mainten ance was made, as laid down in sub section (2) of section 488. Sub-section (3) of section 488 deals with enforcement of the order granting maintenance, passed under section 488. A perusal of sub-section (3) of section 488, specially, the last proviso appear ing in sub- section (3) as well as the other sub-sections which follow, make it clear that a Magistrate who has order ed maintenance to be paid either to a wife or a child cannot suo motu enforce such an order and the order granting maintenance can be enforced only after an application has been made for the enforcement of the order granting maintenance. The last proviso to sub section (3) of section 488 may be quoted :- "Provided, further, that no war rant 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." So an application for enforcement of an order granting maintenance is a pre requisite and if there is no such applica tion, there can be no proceeding taken under law for enforcing the order granting maintenence. Therefore, an application for enforcing an order granting maintenance passed under section 483 of the old Code cannot be deemed to be continuation of the pro ceeding granting maintenance by the Magistrate. An application under sub section (3) of section 488 of the old Code will be a fresh application moved for enforcing an order granting main tenance under sub-sections (1) and (2) of section 488 of the old Code. In view of the relevant provisions of section 484 of the new Code, already discussed, together with what has been pointed out in section 488 of the old Code, there can be no doubt that a fresh application has to be made for enforce ment of the order granting maintenance and if it was not made before the new Code came into force or in other words, such an application was not pending immediately before the date on which the new Code came into force, such an application has to be moved under the new Code. In the new Code Section 125 is the corresponding section under which a Magistrate can pass an order granting maintenance to a wife, child or children. In the old Code no provision for main tenance of parents had been made, but parents have been included under Section 125 of the new Code. Sub- section (1) of Section 12i of the new Code lays down like sub-section (1) of Section 488 of the old Code how or under what circumstan ces an order granting maintenance can be passed by a Magistrate. Sub- section (2) of Section 125 of the new Code and sub-section (2) of Section 488 of the old Code are almost indentical. Similarly, the second proviso of sub-section (3) of Section 125 of the new Code is practi cally the same as the last proviso of sub section (3) of Section 488 quoted above. It is a self-contained provision providing for an application for enforcement of an order granting maintenance by a Magistrate. Though the old Code stood repealed, an order granting maintenance under Section 488 of the old Code will continue to be a legal and enforceable order provided an application is made for its enforcement in accordance with sub-section (3) of Section 125 of the new Code unless of course an application for enforcement of the order grant ing maintenance was not already pend ing as laid down in Section 484 of the new Code immediately before the date on which the new Code came into force. If no such application was pending, the application for enforcement of the order even though passed under the old Code granting maintenance, has to be moved under the new Code in accordance with sub-section (3) of Section 125. It follows that a Magistrate who has been empo wered in law to pass an order under Section 125 of the new Code, has to dispose of such an application moved under sub- section (3) of Section 125 of the new Code. The question which now arises, is whether an Executive Magistrate has jurisdiction under the new Code to dis pose of an application moved under sub section (3) of Section 125 of the new Code. To my mind, the answer has to be in the negative. The word 'Magis trate' used in Section 125 of the new Code who has been given jurisdiction to act under the provistons of Section 125 is a 'Judicial Magistrate' and not an Executive Magistrate. Section 6 of the new Code lays down classes of criminal courts and runs thus : "6. Besides the High Courts and the courts constituted under any law, other than this Code there shall be, in every State, the following classes of Criminal Courts, namely : (i) Courts of Session ; (ii) Judicial Magistrate of the first class and, in any Metropolitan area, Metropolitan Magistrates ; (iii) Judicial Magistrates of the second class ; and (iv) Evecutive Magistrates. So the new Code recognises not only Courts of Judicial Magistrate of the first and second class and Metropolitan Ma gistrate in a Metropolitan area, but also Executive Magistrates. A perusal of Section 125 of the new Code will show that 'a Magistrate of the first class' has been empowered to act or pass orders or enforce the provisions contained in Section 125 of the new Code. Section 6 of the new Code pro vides for Judicial Magistrates of the first class or Metropolitan Magistrates, as the case may be, and also Judicial Magis trates of the second class but there is no mention of Executive Magistrates of the first class or the second class. The next relevant provision in the new Code is Section 3. It lays down :- "(1) In this Code,- (a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,- (i) in relation to an area out side an Metropolitan area, as a reference to a Judicial Magistrate ; (ii) in relation to a Metropoli tan area, as a reference to a Met ropolitan Magistrate ;.............." A perusal of the whole of this section will show that whatever the word 'Ma gistrate' has been used, without any qua lifying words, unless the context shows otherwise, whether of a first class or a second class, it would mean a Judicial Magistrate and if the reference is to a first class Magistrate in a Metropolitan area, it would mean a Metropolitan Magistrate. Therefore, as no qualifying words are to be found in Section 125 of the new Code and the words used therein are only a Magistrate of the first class," the word should be decreed to mean a Judicial Magistrate of the first class out side metropolitan areas or a Metropoli tan Magistrate and not an Executive Magistrate. A reference to various sections of the new Code will make the provisions of Section 3 of the new Code apparent. Wherever an Executive Magistrate has been empowered to act under the provi sions of the new Code, the word 'Magis trate' has been qualified by using the word 'executive', or 'District', or 'Sub- Divisional' (vide Sections 107, 129 to 131, 132,144, 145 etc. of the new Code). It may also be pointed out that sub-sec tion (4) of Section 3 of the new Code is not relevant for our purposes as it lays down what functions are exercisable by Judicial Magistrates and Executive Ma gistrates under any law other than the new Code. It may be pointed out that an order granting maintenance passed under Sec tion 488, sub-sections (1) and (2) of the old Code is a final order and same is the case with an order granting maintenance under Section 125, sub-sections (1) and (2) of the new Code. An application under sub-section (2) for enforcement of an order granting maintenance is not an application in the nature of a review of the order granting maintenance. The op posite party, no doubt, can oppose an application under sub- section (3) of Section 488 of the old Code or sub-section (3) of Section 125 of the new Code and raise the objection enumerated in sub-section (3) and in the following sub-sections, but the opposite-party while opposing an application under sub section (3) cannot challenge the validity of the original order granting mainten ance, though it is open to the opposite-party to show that the law does not re quire him to carry out that order. There fore, while disposing of an application under sub-section (3) of either the old section or the new section, a Court has not to determine the correctness of the order granting maintenance or in other words, review the order granting main tenance. It has only to determine whe ther the opposite-party disobeyed that order or was legally justified in not car rying out that order. Under the circum stances, it cannot even be said that pro ceedings taken for disposing of an appli cation under sub-section (3) for enforc ing an order granting maintenance is continuation of the same proceedings in which the order granting maintenance was passed. It may also be added that as already pointed out, while dealing with Section 484 of the new Code, the word 'proceeding' has not been used while determining the question for appli cability of the old Code after it was repealed and the new Code came into force. It is, therefore, apparent from all that has been discussed that if an appli cation for enforcement of an order granting maintenance was not pending imme diately before the date on which the new Code came into force, as laid down in Section 484, such an application has to be moved under sub-section (3) of Sec tion 125 of the new Code before Judicial Magistrate of the first class or a Metro politan Magistrate, as the case may be, and such an application has to be dis posed of not by the Executive Magistrate who had passed the order granting main tenance under the old Code, but by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, having jurisdiction to pass an order under Sec tion 123 of the new Code. (Per M.M.Gupta, J.).- In order to appreciate the question referred to the Division Bench by Hon'ble H.N. Kapoor, J., it will be necessary to set out the facts briefly. Srimati Rukmani opposite party had filed an application for maintenance under Section 488 of Code of Criminal Procedure, 1898. That application was allowed and the maintenance was granted by the Sub-Divisional Magistrate against the applicant on 11.10.1968. An application for realisation of maintenance was moved before the Sub-Divisional Magistrate on 4.3.1974. That application was dismissed holding the arrears claimed to have become barred by limitation. Yet another application for realisa tion of arrears of maintenance for the subsequent period was moved on 3.12. 1975 before the Executive Magistrate. It may be mentioned here that after the enforcement of Code of Criminal Procedure on 1.4.1974 the Magistrate, serving on the Executive side came to be known as Executive Magistrates and those functioning on the Judicial side came to be known as Judicial Magistrates. The application was allowed, a revision was filed and was held not maintainable by the Sessions Judge. The husband, being aggrieved, has moved an application under Section 488 Cr. P.C. challenging the maintain ability of the application before the Executive Magistrate. The question that now has been referred to the Division Bench by Kapoor, J. is whether in cases where maintenance was granted under Section 488 Criminal Procedure Code, 1898 before the coming into force of the Code of Criminal Procedure, 1973 would application for realization under Section 125 Cr. P.C. be maintainable before the Executive Magistrate or in other words would the Executive Magistrate have jurisdiction to decide it. Bakshi, J. in Nathoo v. Smt. Bhoori in 1977 Allahabad Criminal Ruling 59 had taken the view that the application was merely for the enforce ment of the order passed by the Sub-Divisional Magistrate, or in prior to the coming into force of the new Code of Criminal Procedure i. e. prior to 1.4.1974. AS such the application was maintainable. The application was also dismissed on the ground that it would not foster the ends of justice. A contrary view was taken in three cases decided by one of us (Malik, J.), Chaturvedi, J. and by Katju, J. In my view the answer to the question under consideration would depend on the question whether the application is continuation of the order passed under Section 488 Cr. P.C. or it is a se-separate and an independent applica tion or proceeding for realization of the amount awarded under section 488. Section 488 Criminal Procedure Act, 1898 runs as follows:- "488. (1) If any person having sufficient means neglects or refuses to maintain his wife or his legiti mate or illegitimate child unable to maintain itself, the District Magis trate, a Presidency Magistrate, a Sub- Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the main tenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. (2) Such allowance shall be payable from the date of the order, or if so ordered from the date of application for maintenance. (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 manner hereinbefore provided for levying fines, and may sentence such person for the whole or any part of each month's allowance 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, 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 doing so." Clauses (4), (5), (6), (7) and (8) are not relevant for our purposes. The maintenance is granted to a wife or a child under sub-clause (1) as the Magistrate thinks fit and the pay ment is to be made according to the directions given by the Magistrate. Under Clause (2) the payment is to be made from the date of the order or from the date of the application, if the Magistrate so ordered. Clause (3) provides for the enforce ment of the order passed under clause (1). It provides that on failure of the person so ordered to comply with such order, without sufficient cause, the Magistrate may enforce it by ordering its realization as fine or sentencing him or imprison him for a certain term unless payment if sooner made. It would, thus, appear that enforce ment of order is the continuation of the same order passed under clause (1). The only restriction is found in the proviso that application for enforcement is made within one year. My veiw, therefore, is that the enforcement of the order under sub-clause (3) of Section 488 Cr. P.C. is the continuation of the order passed under sub-clause (1) and is not a separate or an independent proceeding. The application would be under section 488 (3) Cr. P.C. 1898 and not under Section 125 Cr. P.C. 1973. Section 484 (1) Cr.P.C. 1973 repeals the Code of 1898 but clause (2) provides that notwithstanding such repeal. If immediately before the date on which this Code comes into force, there is any appeal, application, at trial, inquiry or investigation pending, then such appeal, application, trial or inquiry or investigation shall be dis posed of, continued, held or made in accordance with the provisions of the Code of Criminal procedure, 1898 as in force immediately before this Commencement as if this Code had not come into force. It is thus obvious that application for enforcement of maintenance order under Section 488 (3) Code of Criminal procedure, 1898 is continuation of order passed under Section 488 (1) Code of Criminal procedure, 1898 and shall have to be disposed of under the Old Code and would be decided by the Executive Magistrate. I agree with the view of Bakshi, J. taken in Nathoo's case (supra). With great respect I do not agree with the contrary view taken by my learned brothers that the application for enforcement of order passed under Section 488 prior to 1.4.1974 would lie under Section 125 of the new Code. Under Section 482 Code of Criminal Procedure the Court has to exercise its inherent powers to prevent abuse of the process of the Court. We have to hear the warning of the Supreme Court in Kurukshetra University v. State of Haryana(1) in which it has been held by the Supreme court that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. In the instant case the order of maintenance was passed on 11.10.1968. More than nine years have elapsed but on account of one techni cality or the other poor wife has not been able to enforce her right of maintenance so far. In a case like the present one I do not think that interests of justice would be served by interfering with the order passed in exercise of powers conferred in this Court under Section 482 Code of Criminal pro cedure. I would, therefore, dismiss the application.