SHER MOHAMMED Vs. ROSHAN

JUDGEMENT

(1.) AN order fixing a monthly maintenance of Rs. 300/ - to Smt. Roshan was passed against her husband Shri Sher Mohd. by the learned Judicial Magistrate, Salumber, on 3 -6 -1982. As the amount was not paid, the non -petitioner Smt. Roshan made an application under Section 125(3) Cr. PC before the learned Magistrate on 10 -12 -1982 and on that very day, the learned Magistrate issued a warrant for the recovery of the amount, namely, a sum of Rs. 6,600/ -. The warrant was returned unserved on 3 -1 -1983, where upon the learned Magistrate directed proceedings under Section 217. IPC and Section 2, Police Act against the S.H.O concerned and at the same time, he further directed the attachment of the salary of the petitioner Sher Mohd. for the recovery of the aforesaid sum and directed the warrant to be sent through S.P. Udaipur. Aggrieved of this order, the petitioner Sher Mohd. filed a revision before the learned Addl. Sessions Judge Udaipur. A letter order of the learned Magistrate dated 17 -1 -1983 in furtherance of the order dated 3 -1 -1983 was also challenged in the revision. Two contentions were raised before the leaded Addl. Sessions Judge, (i) that the warrant for the recovery of the amount could not have been issued unless a show cause notice had first been issued to the petitioner and (ii) that the attachment of the salary was not in accordance with the provisions of Section 421(1)(b) Cr. PC. The learned Addl. Sessions Judge rejected the first objection but accepted the second one and directed that the attachment should be issued to the District. Magistrate and he accordingly, partly allowed the revision. Aggrieved of the petitioner Sher Mohd. has filed the present application under Section 482, Cr. PC.

(2.) I have heard the learned Counsel for the parties and have gone through the record.

(3.) I have given my careful consideration to the rival contentions and us the contention of the learned Counsel for the petitioner is supported by a decision of this Court in Mahipal's case (supra), I am inclined to accept it and as matter of fact the learned Counsel for the non -petitioner also has not disputed the principle underlying this authority. All that he has urged is that in the circumstances of this case, the notice was not necessary or even if it was necessary by now the petitioner had sufficient notice.