MODDARI BIN Vs. SUKDEO BIN

JUDGEMENT

(1.) This is a Reference by the learned Additional Sessions Judge, Alipore, under Section 438 read with Section 435 of the Code of Criminal Procedure challenging the legality and propriety of the order of the Magistrate dated the 7th November, 1964 which is in the following terms:

(2.) The first point raised in the Letter of Reference is whether it could be said that on the facts of this case the Magistrate had any evidence to show that the opposite party Suk-deo Bin had means to pay, but did not pay and whether he made any enquiry for that purpose on the records of this case. The learned Additional Sessions Judge appears to come to the conclusion that the Magistrate was wrong in throwing the opposite party to prison when he was brought under arrest before the court under a warrant without calling upon him to show cause.

(3.) Whether he Magistrate had reason t come to the conclusion that the opposite party had no means or not is here a mixed question of fact and law In our view there was enough on the record to justify the Magistrate's conclusion that the opposite party had means to pay and without any excuse he was trying to avoid payment under the order of maintenance already made. The materials may be summarised here. The opposite party's married wife and their young son were neglected by the opposite parly. Upon such refusal and neglect to maintain them the wife brought a petilion before the Magistrate for an order of maintenance under Section 488 of the Code of the Criminal Procedure. Upon her application an order was marie by the learned Magistrate on the 8th April, 1964 allowing them respectively Rupees 30/- per month for the wife and Rs. 15/ per month for the young son aged 9 years named Laldhari by way of maintenance with effect from 16-9-63. The money was not paid. That fact is also clear from the record. On the 25th July, 1964 the wife again complained and filed a petition alleging that the opposite party was a defaulter, had not carried out the order for maintenance and that a sum of Rs 450/- was due and owing and she prayed for a warrant against the opposite party. Thereupon on the 25th July, 1064 the learned Magistrate issued a distress warrant for a sum of Rs 432.50 nP. being the total amount of maintenance for the period from 16-9-63 to 30-6-64 at the rate of Rupees 45/- per month as fixed by the order of main-tence The distress warrant could not be successfully executed for about three months Nothing was also paid in the meantime by the opposite party under the order of maintenance. Finally on the 3rd October, 1964 the distress warrant was returned on the report that the opposite party had no fixed place of residence. The distress warrant followed Form No. XL Schedule 5 under Section 386 (1) (a) of the Code of Criminal Procedure stating clearly that the opposite party was a wilful defaulter and that the person through whom the warrant was issued was authorised and required to attach anv movable property belonging to Ihe opposite party. On the 3rd October. 1964. Ihe distress warrant was endorsed by the Sub Inspector executing the warrant with the report that the opposite party was not living at the address given and that the room always remained under lock and key and there was no particular place for his residence and he finally reported "Under the above circumstances it is prayed that civil court authorities may be directed to deduct the amount from the pay" of the opposite party.