Uttarakhand High Court

Saurabh Negi vs State Of Uttarakhand And Another on 3 May, 2024

Author: Ravindra Maithani

Bench: Ravindra Maithani

 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

               Criminal Revision No.544 of 2023
Saurabh Negi                                  ...........Revisionist

                                 Vs.

State of Uttarakhand and another             ......... Respondents

Mr. Raman Kumar Shah, Advocate for the revisionist.
Mr. M.A. Khan, AGA for the State/respondent no.1.
Mr. G.S. Negi, Advocate for respondent no.2.

                             With
               Criminal Revision No.545 of 2023
Saurabh Negi                                  ...........Revisionist

                                 Vs.

State of Uttarakhand and another             ......... Respondents

Mr. Raman Kumar Shah, Advocate for the revisionist.
Mr. M.A. Khan, AGA for the State/respondent no.1.
Mr. G.S. Negi, Advocate for respondent no.2.


                            JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

Since common questions of facts and law

are involved in both these revisions, they are heard

together and are being decided by this common

judgment.

2. In Criminal Revision No.544 of 2023, the

challenge is made to the following:-

i. Order dated 17.07.2023, passed in Misc.

Criminal Case No.14 of 2018, Smt. Vibha Negi vs. Saurabh Negi and others, by the court of Judicial Magistrate, Kotdwar, District Pauri Garhwal, whereby the

application moved by respondent no.1 under Sub Rule (5) of Rule 6 of the provisions of the Protection of Women From Domestic Violence Rules, 2006 has partly been allowed.

3. In Criminal Revision No.545 of 2023, the

challenge is made to the following:-

i. Order dated 17.07.2023, passed in Misc.

Criminal Case No.22 of 2019, Smt. Vibha Negi vs. Saurabh Negi and others, by the court of Judicial Magistrate, Kotdwar, District Pauri Garhwal, whereby the application moved by respondent no.1 under Sub Rule (5) of Rule 6 of the provisions of the Protection of Women From Domestic Violence Rules, 2006 has partly been allowed.

4. Heard learned counsel for the parties and

perused the record.

5. The respondent no.2 ("the applicant") filed

an application under Section 12 of the Protection Of

Women From Domestic Violence Act, 2005 inter alia

seeking maintenance from the revisionist, which was

basis of Misc. Criminal Case No.97 of 2013, Smt. Vibha

vs. Saurabh Negi and others in the court of Additional

Chief Judicial Magistrate, Kotdwar District Pauri

Garhwal ("the case"). The case was decided on

27.09.2016. The court issued various directions

including payment of `40,000/- maintenance amount.

Order 27.09.2016, passed in the case was

unsuccessfully challenged by the revisionist in Criminal

Appeal No.78 of 2018, Saurabh Negi vs. Smt. Vibha

Negi, in the court of Sessions Judge, District Pauri

Garhwal ("the appeal").

6. Both the judgments and orders passed in

the case and in the appeal were challenged by the

revisionist in Criminal Misc. Application No.366 of 2019

("the petition") before this Court. On 14.03.2019, while

admitting that petition the Court had stayed the

operation of the impugned order subject to the

revisionist paying `30,000/- per month as maintenance.

The petition filed by the revisionist was finally dismissed

on 23.12.2022.

7. The applicant filed an application for

execution of order of maintenance for the period

beginning from 27.09.2016 till 12.02.2018. The

application for recovery was registered as Misc. Criminal

Case No.14 of 2018, Smt. Vibha Negi vs. Saurabh Negi

and others.

8. For recovery of arrears from 19.02.2018 till

27.03.2019, the applicant's application for recovery of

maintenance was registered as Misc. Criminal Case

No.22 of 2019, Smt Vibha Negi vs. Saurabh Negi and

others. Both these Misc. Cases were decided by the

impugned orders. They have been challenged in these

two revisions.

9. Learned counsel for the revisionist would

submit that :-

a) The order granting maintenance was passed by the Magistrate court, which was confirmed in appeal was challenged in the petition. On 14.03.2019, this Court has ordered for interim maintenance of `30,000/-per month.

Therefore, from 14.03.2019, when the order for grant of interim maintenance of `30,000/- per month was awarded, till the petition was decided on 23.12.2022, the revisionist is liable to pay the maintenance @ `30,000/- per month only; and

b) In the recovery proceedings, the movable property alone may be attached, immovable property cannot be attached, in view of Form 19 of the Schedule of the Code.

10. It is argued that in the instant case, in the

execution proceedings, the house of the revisionist has

been attached, which cannot be done. It is bad in the

eyes of law.

11. Learned counsel for the applicant would

submit that interim order passed in the petition on

14.03.2019 has merged in the final order dated

23.12.2022. It is argued that the order of maintenance

awarded by the court of Magistrate in the case on

27.09.2016 has finally been upheld by this Court on

23.12.2022. Therefore, for the entire period from

22.09.2016, the revisionist is liable to pay maintenance

@ `40,000/- per month and not less than it.

12. It is argued that in so far as the

proceedings of recovery is concerned, in view of Rule 6 to

the Protection of Women From Domestic Violence Act,

2005 ("the Act"), the order passed under Section 12 of

the Act can be enforced in the same manner, as laid

down under Section 125 of the Code. It is argued that

accordingly, the recovery has been done.

13. The sole question is, as to whether the

revisionist is liable to pay @ `40,000/- per month from

the period beginning from 14.03.2019 till 23.12.2022,

when finally the petition was decided.

14. Maintenance order was passed in the case

on 27.09.2016 by the court of Magistrate. It was upheld

in the appeal by the court of Sessions. When these both

orders were challenged in the petition, on 14.03.2019,

the court passed the following order:-

"List this matter on 23.04.2019.

Till next date of listing, effect and operation of the impugned orders dated 27.09.2016 and 11.01.2019 rendered by learned Court below shall remain stayed, provided the applicant pays `30,000/- per month, as maintenance to respondent no.2 on or before 7th day of each month."

15. A bare perusal of the above order reveals

that by it, the court has not directed for payment of

interim maintenance as such. What the Court did was, it

stayed the operation of the impugned order, subject to

the condition, that the revisionist shall continue to pay

`30,000/- as maintenance. The fact remains that the

petition was finally dismissed by this Court on

23.12.2022. The order dated 14.03.2019 was an interim

arrangement so as to stay the operation of impugned

order. It looses its significance the moment, the final

order was passed in the petition. Therefore, the

revisionist is liable to pay the maintenance @ `40,000/-

per month from 14.03.2019 till the petition was decided

on 23.12.2022. The argument that has been made on

this aspect has less merit for acceptance.

16. In the impugned order the calculation has

been made. Accordingly, the recovery order has been

passed. Therefore, the impugned order may not be said

to be illegal, wrong or improper.

17. During the course of hearing, learned

counsel for the revisionists would submit that for

recovery of the maintenance amount attachment

warrants for immovable property has been issued, which

is bad in the eyes of law. It is argued that in the Form

19, which is meant for recovery of maintenance amount,

only movable property can be attached. This issue is not

involved in the revision. The Court can make reference to

it. It is true that Form 19 Schedule II to the Code is for

payment of maintenance by attachment and sale and it

is restricted to movable property alone.

18. The question is, as to whether immovable

property cannot be attached in a recovery proceeding

under Section 125 of the Code. Before the provision of

Section 125 of the Code is discussed, reference to Rule 6

of Rule 5 of the Rules is necessary. It is as follows:-

6. Applications to the Magistrate.-(1) ...................

(2) .........................................................................

(3) ...........................................................................

(4) ...........................................................................

(5) The applications under Section 12 shall be dealt with and the orders enforced in the same manner laid down under Section 125 of the Code of Criminal Procedure, 1973.

19. Maintenance order passed on an

application under Section 12 of the Act, can be enforced

as the maintenance, passed under Section 125 of the

Act. In this sequel Section 125(3) reads as follows:-

"(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."

20. A bare perusal of Sub Section (3) of Section

125 of the Code makes it abundantly clear that warrants

for recovery of arrears may be issued, as if it is recovery

of fine. Recovery of fine is made under Section 421 of the

Code. It reads as follows:-

"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.

(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."

21. Section 421 of the Code authorizes

issuance of warrants, attachment and sale of the

movable as well as the immovable property. When these

lines were dictated, learned counsel for the revisionists

would still invite the Court's attention that the

attachment warrant would go to the Collector.

22. Undoubtedly, the warrants under Section

421 of Code for attachment and sale of the immovable

property is issued through Collector. The fact remains

that in view of a conjoint reading of Section 125 with

Section 421 of the Code it is abundantly clear that a

warrant for attachment and sale of the immovable

property can be issued for recovery of arrears of

maintenance.