Allahabad High Court
Radha Ballabh Chaturvedi vs State Of U.P. And Another on 25 May, 2022
Bench: Manish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 92
Case :- APPLICATION U/S 482 No. - 12750 of 2022
Applicant :- Radha Ballabh Chaturvedi
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Mithilesh Kumar Tiwari
Counsel for Opposite Party :- G.A.
Hon'ble Manish Kumar,J.
The present petition under Section 482 Cr.P.C. has been filed for setting aside the impugned order of arrest warrant dated 02.03.2022 passed by Additional Principal Judge, Family court, Mathura in case no. 590 of 2019, under Section 125/128 Cr.P.C.
Learned counsel for the applicant has submitted that the marriage of the applicant was solemnized with opposite party no. 2 on 13.02.2005. However, after sometime, the relations between the two had strained and opposite party no. 2 has lodged the FIR under Sections 323, 498-A, 406, 504 & 506 IPC & 3/4 of the D.P. Act against the applicant and his six other family members. It is further submitted that the opposite party no. 2 has moved an application under Section 125 Cr.P.C. before the Judicial Magistrate, court no. 4, Mathura and the same was allowed vide judgment and order dated 15.09.2008 by which the amount of maintenance of Rs. 2500/- per month has been awarded to the extent that half of the amount shall be for the maintenance of opposite party no. 2 and the rest half shall be for the maintenance of minor child from the date of order. It is further submitted that the opposite party no. 2 had preferred a revision bearing No. 473 of 2008 in the court of Sessions Judge, Mathura and the applicant has also filed a revision bearing No. 577 of 2008 against the order dated 15.09.2008 passed by the learned IVth Additional Judicial Magistrate, Mathura. Both the revisions have been decided by a common judgment and order dated 02.02.2009 passed by the Additional Sessions Judge, court no. 03, Mathura, by which the revision preferred by the applicant was rejected and the revision preferred by the opposite party no. 2 was partly allowed and the applicant was directed to pay the maintenance of Rs. 2500/- per month to the opposite party no. 2 and her daughter from the date of her application i.e. 16.05.2006, against which the applicant has filed Crl. Misc. Writ Petition No. 7135 of 2009, which is pending.
It is further submitted that due to COVID pandemic for about 2-3 years, there were certain irregularities in monthly payment to the opposite party no. 2 due to which on 02.03.2022, the opposite party no. 2 filed an application under Section 125(3) Cr.P.C. before the Additional Principal Judge, Family court, Mathura and prayed therein to issue arrest warrant against the applicant for recovery of amount of Rs. 1,88,000/-. The opposite party no. 2 in her application has admitted that out of total amount of Rs. 4,72,500/-, she has already received an amount of Rs. 2,84,500/- which shows that the applicant used to make payment as per the direction of the competent court. It is further submitted that on the very same day, the court below has passed an order issuing recovery as well as arrest warrant against the applicant without providing any opportunity of hearing to the applicant. It is further submitted that the issuance of arrest warrant along with the recovery warrant is against the statutory provision, as Section 125(3) Cr.P.C. provides for adopting the procedure for recovery of amount due against the applicant wherein it has been provided that for warrant of levying of fine, the procedure provided under Section 421 Cr.P.C. is to be adopted and failing which the arrest warrant should be issued whereas in the present case, directly along with the recovery warrant, arrest warrants have also been issued which is bad in the eyes of law and hence the impugned order of arrest warrant is liable to be quashed. In support of his submission, learned counsel for the applicant has relied upon the judgment/order of this Court dated 25.02.2022 passed in APPLICATION U/S 482 No. - 4483 of 2022. Learned counsel for the applicant has submitted that the applicant is ready to pay the amount of Rs. 40,000/- as directed by this Court before the court below for the purposes of payment to the opposite party no. 2.
On the other hand, learned AGA and Sri Rohit Shukla, who has filed his Vakalatnama on behalf of opposite party no. 2 which has been taken on record and have submitted that the applicant is not paying maintenance amount as determined by the competent court of law due to which the opposite party no. 2 is facing financial hardship. It is further submitted that it has been observed in the order dated 02.03.2022 that applicant had knowledge of the application but he had not appeared before the court below. They have candidly accepted the legal position and the judgment/order of this Court dated 25.02.2022 passed in APPLICATION U/S 482 No. - 4483 of 2022 relied by the learned counsel for the applicant and have consented that the matter may be decided finally at this stage. With the consent of the parties, the matter is finally decided at this stage itself.
Learned counsel for the opposite party no. 2 has submitted that the opposite party no. 2 and her child is facing financial hardship due to non-payment of the maintenance allowance by the applicant and the orders passed by the competent court determining the maintenance in favour of opposite party no. 2 is not stayed by any competent court of law, as such, the applicant may be directed to make the payment of dues.
After hearing learned counsel for the parties and going through the record, the statutory provision and the judgment relied by learned counsel for the applicant, the position which emerges out is that the matter has to be adjudicated in the light of Section 125(3) Cr.P.C. r/w Section 421 Cr.P.C. Sections 125(3) & 421 Cr.P.C. are quoted hereinbelow for ready reference:-
"Section 125(3) Cr.P.C. 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.
Explanation.- If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife' s refusal to live with him.
Section 421 Cr.P.C.- Warrant for levy of fine.- (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner In which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub- section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."
From perusal of the aforesaid provisions, the court or the Magistrate on every breach of order, issue a warrant for levying the amount due in the manner provided for levying fines and warrant for levying of fine is provided under Section 421 Cr.P.C., as mentioned above. In the present case, it is an undisputed position that the court below in place of following the procedure of warrant for levying of fine as provided under Section 421 Cr.P.C. has passed an order for warrant of arrest of the applicant. The order of warrant of arrest would come when the recovery could not be made after following the procedure provided under Section 421 Cr.P.C. The jurisdiction of the procedure for sentencing such person to imprisonment would arise only after the maintenance allowance, in whole or in part remains unpaid after the maintenance allowance in warrant.
From the discussions made hereinabove, the Magistrate has no jurisdiction to issue warrant of arrest straight way 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 realization that fine in one or both the modes for recovery of that fine as provided for in clauses (a) or (b) of sub-Section (1) of Section 421 Cr.P.C. say by issuance of distress warrant for attachment and sale of movable property belonging to the defaulter as contemplated under Section 421 (1) (a) and without first sentencing the defaulter to imprisonment after the execution of the distress warrant.
As stated by learned counsel for the applicant that the applicant is ready to deposit a sum of Rs. 40,000/- before the court below for the purpose of payment to the opposite party no. 2, for that, the applicant is granted two weeks' time to deposit the same before the court below by way of demand draft in favour of opposite party no. 2 and the same may be released by the court in favour of opposite party no. 2.
In view of the aforesaid, this Court finds that the Principal Judge, Family court, Mathura has not followed the established procedure, as provided under Section 125 (3) Cr.P.C. in respect of/regarding issuing the arrest warrant along with the recovery warrant, as such, the order dated 02.03.2022 passed by Additional Principal Judge, Family court, Mathura in case no. 590 of 2019, under Section 125/128 Cr.P.C is set aside to the extent of issuance of arrest warrant against the applicant.
The Principal Judge, family court, Mathura shall proceed with the recovery against the applicant as per the established procedure of law, as provided under Section 421 Cr.P.C.
With the observations made hereinabove, the present application is partly allowed.
Order Date :- 25.5.2022
Nitesh
