EMPEROR Vs. MAHOMED HUSSEIN ABDUL KADAR SHAIKH BHIKAN

JUDGEMENT

(1.) THIS is an application in revision against an order made by the Presidency Magistrate, Second Additional Court, Mazagaon.

(2.) THE facts are that on January 27, 1940, the present applicant was directed to pay Rs. 25 a month to his wife and Rs. 25 a month to her in respect of his son for maintenance under Section 488 of the Criminal Procedure Code. THE maintenance was to ran from the date of the petition, so that there were considerable arrears. THE application seems to have been fought very bitterly, the husband maintaining that he had not got any means. However, the Magistrate did not believe that story. THE maintenance was not paid, and on February 17, an application was made for a distress warrant, and on February 23 a warrant was issued. That was under Sub-section (3) of Section 488 which provides that 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 thereinbefore 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.

(3.) I will assume that the order for payment of past maintenance constituted a debt provable in insolvency, but even so, I am satisfied that the protection order does not protect the debtor) from being proceeded against in a criminal Court. A provable debt might have been incurred by reason of some criminal offence, such as cheating or criminal misappropriation. It is obvious that a protection order would not protect against prosecution and conviction for such an offence and I think also a protection order does not protect against the special statutory power of committal given to a criminal Court under Section 488 of the Criminal Procedure Code. The case of Shyama Charan v. Anguri Devi [1938] All. 486, is a direct authority for this proposition and I agree with that decision. In my opinion, therefore, the learned Magistrate had jurisdiction to make the order.