RAJENDRA KUMAR PRADHAN Vs. PRAMILA PRADHAN

JUDGEMENT

(1.) The question for examination by this Bench, on a reference being made by a learned single Judge, is whether Section 125(3) of the Criminal P. C. ("the Code" for short) permits passing simultaneous order for issuing distress warrant as well as non-bailable warrant of arrest against the person who had failed without sufficient cause to comply with the order passed by a Magistrate under Sub-Section (1) relating to maintenance of wife, children or parents. A learned single Judge of this Court took a view in Jagannath Patra v. Purnamashi Saraf, AIR 1968 Orissa 35 : (1968 Cri LJ 335) that such a simultaneous order is not in accordance with law. Another learned Judge, without referring to the aforesaid case, however, held in Bhakta Bhuyan v. Sabitri Bhuyan, (1991) 71 Cut LT 110, that a Magistrate has jurisdiction to sentence a person to imprisonment for which purpose non-bailable warrant may be issued without having taken recourse to realisation of the unpaid amount by issuance of distress warrant, which is the manner visualised for realisation and levying of fines. The learned Judges hearing this case felt that the conflicting views taken by this Court in the aforesaid cases may be resolved by a larger Bench. Hence this reference.

(2.) As it is principally Section 125(3) of the Code which would answer the question posed, let that Section be read :- "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 the manner provided for levying fines, and sentence such person, for the whole or any pert of each month's allowance remaining unpaid for the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made." (Emphasis supplied) The language of the Section, whose parallel provision in the old Code in the same language was Section 488(3), leaves no manner of doubt in our mind that the first mode visualised by it is issuance of warrant for collecting the amount due in the manner provided for levying fines. This takes us to Section 421, which deals with the manner of levying fines. That Section permits taking of action for recovery of the fine in either or both ways mentioned in it; these being : (i) issuance of warrant of attachment of sale of any movable property; and (ii) issuance of warrant to the Collector authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both. The second mode mentioned in Section 125(3) can be brought into play on "the whole or any part of each months' allowance remaining unpaid after the execution of the warrant". The word 'warrant' in this part of Section 125(3) has relationship with the 'warrant' of which the first part of the Section speaks, which is the warrant mentioned in Section 421, which is commonly known as distress warrant. The two powers conferred by Section 125(3) are not independent, according to us, inasmuch as the two modes are not disjunctive but conjunctive, as would be apparent from the use of the word 'and' in the Section linking the two modes - the principal mode being issuance of warrant, and in case the whole or any part of the allowance remains unpaid after execution of the warrant, to award imprisonment, to undergo which presence may be obtained by issuing warrant of arrest - bailable or non-bailable.

(3.) We may now refer to the two decisions of this Court. In Jagannath Patra's case, the learned Single Judge (G. K. Misra, J., as he then was) dealt with the parallel provision finding place in Section 488(3) of the old Code and observed as below :-