Jharkhand High Court
Davlen Khoren Tirkey vs The State Of Jharkhand on 16 December, 2021
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (Cr.) No. 322 of 2019
Davlen Khoren Tirkey, aged about 60 years, W/o Imanuyal Tirkey,
resident of Village + P.O. & P.S. Chainpur, District- Gumla (Jharkhand)
... Petitioner
-Versus-
1. The State of Jharkhand
2. Deputy Commissioner, Gumla, R/o Village+P.O.+P.S.+Dist. Gumla
3. Immanuel Tirkey, S/o Late Neman Oraon, R/o Vill.- Civil Thana
Chainpur, P.O.+P.S. Chainpur, Dist. Gumla, as well as R/o Shyam Park
Ward No.2, P.O.+P.S. Bhagwan Bazar, Dist. Sharan (Bihar)
... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
Ms. Sunita Kumari, Advocate
For the State : Mr. P.C. Sinha, A.C. to G.A.-III
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13/16.12.2021. Heard Mr. R.S. Mazumdar, learned Senior counsel assisted by Ms.
Sunita Kumar, learned counsel for the petitioner and Mr. P.C. Sinha, learned
counsel for the respondent-State.
2. This petition has been filed for direction upon the respondents for
execution of the order passed in Maintenance Case No.08/07 vide order
dated 07.01.2009 by the learned Sub-Divisional Judicial Magistrate, Gumla.
3. An application for maintenance under Section 125 Cr.P.C. was filed by
the petitioner which was allowed vide order dated 07.01.2009 whereby
maintenance of Rs.4,000/- per month was allowed in favour of the
petitioner. The petitioner was not being paid such maintenance. She filed a
petition before the concerned court under Section 125(3) Cr.P.C., which was
not accepted as it was filed belatedly. Aggrieved with this, the present
petition has been filed by the petitioner.
4. Mr. R.S. Mazumdar, learned Senior counsel assisted by Ms. Sunita
Kumari, learned counsel for the petitioner relied upon the judgment
rendered by the Madras High Court in the case of P. Vaithi v. Kanagavalli
& another, in Criminal Revision Case No. 1237 of 2009 and M.P.
No.1 of 2009, decided on 02.02.2010 wherein Section 125(3) Cr.P.C. and
Section 128 Cr.P.C. have been discussed.
5. So far as Section 125(3) Cr.P.C. is concerned, limitation is prescribed
therein and the punishment is also prescribed in the said statute. Thus, on
the ground of limitation the action of the concerned court cannot be held to
be illegal act. However, the petitioner is having remedy under Section 128
Cr.P.C.. There is no limitation prescribed under Section 128 Cr.P.C., which is
meant for recovery of the amount that may be the reason for legislature for
not providing such a period of limitation. The petitioner who is wife of
respondent no.3 cannot be allowed to be remedy less if such a petition was
filed belatedly. Section 128 Cr.P.C. is meant for recovery of the amount and
there is no period of limitation prescribed therein.
6. Paragraph 6 of the judgment rendered by the Madras High Court in
the case of P. Vaithi v. Kanagavalli & another, in Criminal Revision
Case No. 1237 of 2009 and M.P. No.1 of 2009 is quoted herein below:
"6. After an order is passed directing to pay maintenance,
the party in whose favour such an order has been passed has
got two options to work out to recover the arrears from the
other. He can choose to approach the court under Section
125(3) Cr.P.C. requesting the court to punish the defaulter by
imposing appropriate imprisonment. On the other hand, he
can also approach the court under Section 128 of Cr.P.C.
seeking to recover the amount due under the maintenance
order. A comparison of Sections 125(3) and 128 of Cr.P.C.
would keep things beyond any pale of doubt that in so far as
the proceeding under Section 125(3) is concerned, the
statuete has prescribed a period of limitation of one year,
whereas in respect of a proceeding under Section 128 of
Cr.P.C., there is no limitation provided at all. This is because,
while exercising the power under Section 125(3) Cr.P.C. the
action being essentially a criminal in nature, resulting in
punishment of imprisonment, the legislature has perhaps,
thought it fit to provide such a period of limitation of one year
to file a petition. Since, while enforcing an order under Section
128 of Cr.P.C. for recovery of the amount, there is no question
of straight away imposing such a punishment of imprisonment
and that may be the reason for the legislature not to provide
for such a period of limitation. Therefore, to put it in nutshell,
for initiating a proceeding for enforcing an order by invoking
Section 128 of Cr.P.C., absolutely, I find no provision providing
for limitation as it is provided in respect of proceedings under
Section 125(3) of Cr.P.C. In the case on hand, the petition was
filed under Section 128 of Cr.P.C. Though it was filed beyond
one year, in my considered opinion, the lower court was right
in entertaining the same as the same is not barred by any
limitation."
7. In view of the above facts, the Court of equity sitting under Article
226 of the Constitution of India thinks it proper to direct the petitioner to
file a petition under Section 128 Cr.P.C. before the competent court within a
period of two weeks from today. If such petition is filed by the petitioner
within the aforesaid period, the concerned court will consider such petition
and take a decision, in accordance with law.
8. With the above observations and directions, this criminal writ petition
stands disposed of.
(Sanjay Kumar Dwivedi, J.)
Ajay/
