Allahabad High Court
Ramu Chaurasiya vs State Of U.P. And Another on 12 September, 2022
Bench: Ram Manohar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 90
Case :- APPLICATION U/S 482 No. - 24083 of 2022
Applicant :- Ramu Chaurasiya
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Sharad Chand Rai
Counsel for Opposite Party :- G.A.
Hon'ble Ram Manohar Narayan Mishra,J.
Heard Sri Sharad Chand Rai, learned counsel for the applicant, learned AGA of the State and perused the record.
This application u/s 482 Cr.P.C. has been preferred seeking the quashing the order dated 12.5.2022 and consequential orders dated 20.5.2022, 30.05.2022, 13.06.2022, 04.07.2022, and 27.07.2022 by means of which NBW has been issued in Execution Case No. 865 of 2022 (Poonam Chaurasia vs. Ramu Chaurasia) under Section 128 Cr.P.C. Police Station- Lar, District- Deoria in Maintenance Case No.88 of 2020 (Old Case No. 176/2019) under Section 125 Cr.P.c. pending before learned Additional Principal Judge, Family Court, Court No.3 Deoria.
It is submitted by learned counsel for the applicant that opposite party no. 2 had filed an application under Section 125 Cr.P.C. on 15.3.2019 against the applicant which was registered as Maintenance Case No. 88/2020, and pending before Additional Principal Judge, Family Court, Court No. 3 Deoria. It is next submitted that the said case was decided ex parte by court concerned on 14.8.2020 without following the process prescribed under law. Thereafter an application was filed by opposite party no. 2 on 14.10.2020 for execution of the same. A recall application has been filed by the applicant on 27.10.2021, under Section 126 Cr.P.C. to recall of the order dated 14.08.2020 passed in Maintenance Case No.88/2020, in which date was fixed for hearing and notice was directed to be issued. However, on the same day the court concerned dismissed the recall application at the stage of admission. Copy of the same is annexed as Annexure No.6 to the present application. Thereafter, a complaint has also been filed against the said Presiding Officer of the court concerned before this Court on 17.06.2022 by the father of the applicant in administrative side. It is further submitted that the court below has initiated the proceedings under Sections 82 and 83 of Cr.P.C. and police grabbed all the valuable items of the applicant in said proceedings. The total value of the same is Rs. 94,825/-. It is also submitted that the court concerned has passed the orders as well as arrest warrant without application of judicial mind. In support of his contention he has placed reliance of a judgment of this Court passed in Application U/S 482 No. 4483 of 2022 (Vipin Kumar vs. State of U.P. and Another).
On the other hand, learned AGA has submitted that the applicant has not filed any affidavit to the effect that he has paid/deposited any amount of maintenance which was outstanding against him. In the Execution Case No. 865 of 2022 (Poonam Chaurasia vs. Ramu Chaurasia) filed under Section 128 Cr.P.C. the court concerned has issued the recovery warrant under Section 421 Cr.P.C. It is next contented that court below in its order dated 4.7.2022 clearly states that if the opposite party (applicant herein) is arrested or the due amount is paid then execution of the sale proceeding shall be deemed stayed automatically.
From the perusal of the order dated 12.5.2022, it appears that learned Principal Judge, Family Court had directed to issue recovery warrant as well as arrest warrant against the applicant in Execution Case No. 865 of 2020.
I have considered the submissions made by the learned counsel for the parties and have gone through the record.
Before coming to the merits of the present case, it would be worthwhile to reproduce Sections 125 (3) and 421 Cr.P.C., which read as follows:
"125 (3). Order for maintenance of wives, children and parents.
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 allowances 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."
"128. Enforcement of order of maintenance.
A copy of the order of maintenance or interim maintenance and expenses of proceeding, as the case may be shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to the person to whom the allowance for the maintenance or the allowance for the interim maintenance and or the allowance for the interim maintenance and expenses of proceeding, as the case may be, is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the allowance or as the case may be, expenses, due."
"421. 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."
From perusal of the aforesaid provisions it explicit that the Magistrate has no power to issue warrant of arrest against the person who is liable for payment of amount of maintenance in exercise of power under Section 128 Cr.P.C., read with Section 421 Cr.P.C. In the event of non-payment of maintenance allowance within the time fixed by the court.
In view of the above, I am of the opinion that the court concerned has not followed the established procedure for issuance of warrant of arrest in the execution case. Subsequently, the order directing the arrest of the applicant is found illegal and not warranted under law, therefore, the impugned order is liable to be set aside partially, so far as the directions of simultaneous issuance of arrest warrant against the applicant along with the distress i.e. recovery warrant in aforesaid execution case is concerned, the court concerned is at liberty to proceed under Section 128 Cr.P.C. read with Section 125(3) Cr.P.c. and Section 421 Cr.P.C. for recovery of maintenance allowance due against the applicant in the aforesaid execution case, in accordance with law.
Accordingly, the present applicant under Section 482 Cr.P.C. stands disposed of.
Order Date :- 12.9.2022
S.K.
