DIPANKAR BANERJEE Vs. TANUJA BANERJEE

JUDGEMENT

(1.) The case is taken up for final disposal of the revisional application. Heard the arguments and counter-arguments advanced by the learned Advocates for both the petitioner and the opposite party. On behalf of the petitioner affidavit of service is filed today which shows the service was effected within the time specified by my order dated 6-11-97. While admitting the revisional application I granted interim stay of operation of the impugned order dated 23-9-97 passed in M.C. Execution Case No. 28/96 in the court of 5th Judicial Magistrate, Serampure, for a limited period so far as that order directs issuance of warrant of arrest in the event of non-payment of arrear of maintenance within the date fixed by the order and the learned Advocate for the petitioner during the hearing of this petition challenged only the legality of that part of the impugned order which directs issuance of warrant of arrest in the event of default in payment of arrear maintenance allowance. On a plain reading of sub-section (3) of Section 125 of Cr. P.C. it becomes clear that in the event of any failure on the part of any person to comply with an order to pay maintenance allowance, without sufficient cause, the Magistrate is empowered to issue warrant for levying the amount due in the manner provided for levying fines for every breach of the order. Section 421, Cr. P.C. prescribes the manner for levying fine and clause (a) of sub-section (1) of Section 421 provides for issuance of warrant for levy of the amount by attachment and sale of any movable property belonging to the offender. In other words, in the event of any failure without sufficient cause to comply with the order for maintenance allowance, the Magistrate is empowered to issue distress warrant for the purpose of realisation of the amount, in respect of which default has been made, by attachment and sale of any movable property, that may be seized in execution of such warrant. Sub-section (3) of Section 125 makes it further clear that the jurisdiction of the Magistrate for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part, remains unpaid after the execution of the distress warrant. It is only after the sentence of imprisonment is awarded by the Magistrate under sub-section (3) of Section 125 that the occasion may arise for issuance of warrant of arrest for bringing the person concerned to Court for his committal to prison to serve out the sentence. What has happened in the instant case is that there was an order by the Magistrate awarding maintenance allowance in favour of the opposite party and her son against the petitioner. The petitioner moved this Court in Crl. Rev. No. 3240/96 against the said magisterial order granting maintenance allowance in favour of the opposite party. The said criminal revision was dismissed by S. K. Tiwari, J. and after such dismissal the petitioner filed a petition, in M. C. Execution Case No. 28/96 which was levied by the opposite party for realisation of maintenance allowance that has already fallen into arrear, praying for time for payment of the said arrear, and upon hearing both parties, the learned Magistrate was pleased to allow that prayer for time for payment till 6-11-97, by this impugned order. The learned Magistrate, however, did not stop there by simply giving time to the petitioner for payment of the arrear maintenance allowance. By the impugned order, he had also provided for due contingency that would ensue in the event of any default in making that payment within the date fixed. In doing so, the learned Magistrate has categorically made it clear that he would issue warrant of arrest against the petitioner in default of payment of the arrear allowance within the date fixed. It is this part of the order which is under challenge in the present revisional case.

(2.) Under the law, the Magistrate has no jurisdiction to issue warrant of arrest straightway against the person liable for payment of maintenance allowance in the event of non-payment of maintenance allowance within the time fixed by the Court without first levying the amount due as fine and without making any attempt for realisation of that fine in one or both of the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-section (1) of Sec. 421, Cr. P.C., say by issuance of distress warrant for attachment and sale of moveable property belonging to the defaulter as contemplated under Sec. 421(1)(a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant. The Magistrate, it is patently clear, has misdirected himself in providing for issuance of warrant of arrest in default of payment of arrear maintenance allowance within the time allowed by him in the execution case concerned. The order directing issuance of warrant of arrest is patently illegal and not warranted by law.

(3.) The learned Advocate appearing for the opposite party submits that by filing a petition praying for time for payment of the arrear maintenance allowance the petitioner could be said to have virtually given an undertaking to the learned Magistrate for making payment and the default in making payment would tantamount to breach of that undertaking and in the event of breach of undertaking by a party who has been ordered to pay maintenance allowance, it is submitted by the learned Advocate for the opposite party, the Magistrate has jurisdiction to order issuance of warrant of arrest against him. I do not find any substance in the above contention. It is really not understood how a prayer for time which was allowed by the Court could be construed as an undertaking on the part of the petitioner in making payment of arrear maintenance allowance within the time fixed by the Court. Even if it be assumed for the sake of argument that it did tantamount to an undertaking by the petitioner, it is really not understood how in anticipation of the breach of that undertaking the Court could direct issuance of warrant of arrest. The ld. Advocate could not place or refer to any provision of law which permits the issuance of warrant of arrest by the Magistrate in anticipation of breach of an undertaking given by a party.