Telangana High Court
B. Sridhar Goud vs The State Of Telangana on 2 August, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.5563 of 2024
ORDER:
This Criminal Petition is filed under Section 482 of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') to set aside the order dated 01.05.2024 passed in Crl.M.P.No.199 of 2024 in DVC.No.109 of 2012 by the learned III Metropolitan Magistrate (Traffic Mobile Court), Hyderabad.
2. The brief facts of the case are that respondent No.2 filed a petition before the trial Court, vide Crl.M.P.No.199 of 2024, under Section 125 (3) of Cr.P.C., praying to direct the petitioner to pay an amount of Rs.70,000/- to respondent No.2 from November, 2022 to December 2023 for a period of 14 months. The trial Court vide order dated 01.05.2024 issued Non-Bailable Warrant against the petitioner. Aggrieved by the said order, the petitioner filed the present criminal petition.
3. Heard Sri M. Rathan singh, learned counsel appearing on behalf of the petitioner as well as Sri S. Ganesh, learned Assistant Public Prosecutor appearing on behalf of respondent 2 SKS,J Crl.P.No.5563 of 2024 No.1-State and Sri G. Anil Kumar, learned counsel appearing on behalf of respondent No.2.
4. Learned counsel for the petitioner submitted that the trial Court erred in issuing the Non-Bailable Warrant, as it is the settled principles of law from the proviso of Section 125 (3) of Cr.P.C., that no application can be moved for recovery of the amount for more than 11 months. In support of his submission, learned counsel for the petitioner relied on the Judgment of the Bombay High Court in W.P.(ST).No.2435 of 2024, wherein in paragraph No.23, it is held as under:
"23. Now coming to the facts of the present case, upon query by this Court, learned Counsel for respondent No.2 submitted that the issuance of warrant pursuant to the application dated 27th July, 2023 annexed at Page 57 of the Petition. Perusal of the application indicates that the pleading is that there is default of 59 months and the intermittent payments made by the Petitioner were set out. Considering the proviso to Section 125 (3) of Cr.P.C., it was incumbent upon the Metropolitan Magistrate to first consider whether the application has been filed in respect of default of monthly maintenance for period of 12 months preceding the application, which was not done. The impugned order does not indicate any finding on the aspect of period of default and it is only observed that there is default of 47 months when the application states that there is default of 59 months. The Petitioner 3 SKS,J Crl.P.No.5563 of 2024 has been sentenced to simple imprisonment for period of 47 months for default of 47 months without noticing the outer limit on power of the Magistrate to impose sentence of imprisonment which is set out in the proviso to sub section (3) of Section 125."
5. On the other hand, learned counsel appearing on behalf of respondent No.2 submitted that there is no bar to claim the maintenance from November 2022 to December, 2023. In support of his submission, learned counsel relied upon the Judgment of the Shahada Khatoon and Ors vs. Amjad Ali and Ors 1, wherein it is held as under:
"The short question that arises for consideration is whether the learned single Judge of the Patna High Court correctly interpreted Sub-Section (3) of Section 125 of the Cr.P.C., by directing that the Magistrate can only sentence for a period of one month or until payment, if sooner made. The learned counsel for the appellants contended that the liability of the husband arising out of an order passed under Section 125 to make payment of maintenance is a continuing one and on account of non-payment there has been a breach of the order and therefore the Magistrate would be entitled to impose sentence on such a person continuing him in custody until payment is made. We are unable to accept this contention of the learned counsel for the appellants. The language of Sub-Section (3) of Section 125 is quite clear and it circumscribes the 1 (2000) 1 ALD (Crl) 305 4 SKS,J Crl.P.No.5563 of 2024 power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month. In that view of the matter the High Court was fully justified in passing the impugned order and we see no infirmity in the said order to be interfered with by this Court. The appeal accordingly fails and is dismissed."
6. In the light of the submissions made by both the learned counsel and a perusal of the material available on record, it appears that respondent No.2 filed a petition claiming maintenance for 14 months i.e., from November, 2022 to December 2023. The contention of the learned counsel for the petitioner is that the trial Court without considering Section 125 (3) of Cr.P.C., issued Non-Bailable Warrant to the petitioner.
7. At this stage, it is imperative to note Section 125 (3) of Cr.P.C., which reads as under:
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125. Order for maintenance of wives, children and parents. :-
(3) 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 may sentence such person, for the whole or any part of each month's [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing."
8. A bare perusal of Sub Section 3 of Section 125 of Cr.P.C., empowers the Magistrate for every breach of the order to issue warrant for levying the amount due and for searching the person for the whole or any part of each months 6 SKS,J Crl.P.No.5563 of 2024 maintenance remaining unpaid leads to imprisonment for a term which may extend to one month or until payment if sooner made. Proviso to Sub Section (3) of Section 125 restricts the power of the Magistrate to issue warrant for recovery of the amount due unless application is made to the Court to levy such amount within a period of one year from the date on which it becomes due. Upon holistic reading of Sub Section (3) of Section 125, it is evident that the same provides for maximum imprisonment of one month for maintenance of each month or any part thereof remaining unpaid, which is applicable for issuance of warrant is required to be filed within a period of one year from the date it becomes due.
9. Reverting to the facts of the case on hand, as per Section 125 (3) of Cr.P.C and as per the law laid down by the Bombay High Court in W.P.(ST).No.2435 of 2024, this Court deems it fit and appropriate to set aside the Non-Bailable Warrant issued against the petitioner. Further, it is clarified that the quashing of the impugned order does not restrict respondent No.2 from filing fresh application for issuance of warrant for non-payment of maintenance. 7
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10. Accordingly, the criminal petition is allowed and the docket order dated 01.05.2024 passed in Crl.M.P.No.199 of 2024 in DVC.No.109 of 2012 by the learned III Metropolitan Magistrate (Traffic Mobile Court), Hyderabad, is hereby set aside. However, petitioner is directed to surrender before the trial Court to recall the Non-Bailable Warrant issued against him. Further, on the same day, the petitioner is directed to furnish an undertaking to appear before the trial Court as and when required. Till such surrender of the petitioner, the Non- Bailable Warrant issued against him, shall not be executed. Further, respondent No.2 is directed to file a fresh petition before the trial Court for enforcement of order.
Miscellaneous applications, if any pending, shall also stand closed.
_____________ K. SUJANA Date: 02.08.2024 SAI