SAJAHAN MOLLA Vs. AJMIRA BEGAM

JUDGEMENT

(1.) THE revisional application is directed against the order No. 45 dated 30.9.95 passed by the learned Chief Judicial Magistrate, Howrah in Misc. Case No. 101/90.

(2.) THE brief history of the case is that an application under section 125, I.P.C. was filed by the Opposite Party against the present petitioner. The proceeding was subsequently converted into one under section 3, Muslim Women (Protection of Rights on Divorce) Act of 1986 after the present petitioner administered Talak to the Opposite Party. Therefore, by order dated 8.7.93 different amounts being fair provision for maintenance, return of gold ornaments, payment of power etc. were passed. The present petitioner failed to make payment. Accordingly D/W was issued for realising Rs. 35,501/-. Subsequently, on the strength of warrant of arrest the petitioner was brought under arrest and he failed to satisfy the order of maintenance. In accordance with section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act, the petitioner has been sentenced to imprisonment for one year or until payment if sooner made. The petitioner filed a petition before the learned C.J.M., praying for permission to deposit Rs. 3,000/- and further prayed for his release on bond. The learned C.J.M. on consideration of the different provisions of the law rejected the prayer with the observation that the Criminal Procedure Code, so far as it related to the amount under section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act is confined to the levying of fines alone. It has been argued for the petitioner that the chapter dealing with fines, namely section 421 to section 424, Cr. P. C. should apply and not section 421 alone. It has also been argued that the earlier order of dismissal relates to the application regarding prayer for bail and not to the present matter. On a scrutiny of a relevant order it appears to me that the said contention is factually correct. On a scrutiny of the section 421 to section 424, Cr.P.C. it appears to me that the finding of the learned C.J.M. to the effect that reference to levying of fines under the Cr. P. C. appearing in section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act is limited to the issuing of (sic) for levying of fines alone as mentioned in the section 421, Cr. P. C. cannot be accepted but all the sections dealing with the levying of fines namely section 421 to section 424, Cr. P. C. will be attracted. It appears from the order of the learned C.J.M. that he was under the impression that due to the earlier order of this Court dated 14.9.95 in Criminal Revision 830/95 and also because of the non-availability of section 424, Cr.P.C. he was perhaps not in a position to consider the merit of the prayer made by the petitioner. As I have said earlier order of this Court relates to an application for bail and which was rejected by the trial Court on the ground that there was no provision regarding bail being granted to a person suffering imprisonment in accordance with the Muslim Woman (Protection of Rights on Divorce) Act. Therefore, it has got nothing to do with the present application. Regarding application of section 42, Cr.P.C. it is made clear that the said provision is applicable even in a case like this. As such the learned C.J.M. is at liberty to consider the prayer of the petitioner on merit. In the result, the order No. 45 dated 30.9.95 passed by the learned C.J.M., Howrah in Misc. Case No. 101 of 1990 is set aside with the direction that learned Magistrate shall dispose of the application on merit. It is however made clear that any passing observations made in this order shall not stand in the way of proper disposal of the petition on merit. The revisional application is accordingly disposed of. Order may be sent to learned Lower Court by Spl. Messenger at the cost of petitioner to be deposited at once.