John Beaumont, Kt., C.J.
1. This is an application in revision against an order made by the Presidency Magistrate, Second Additional Court, Mazagaon.
2. The facts are that on January 27, 1940, the present applicant was directed to pay Rs. 25 a month to his wife and Rs. 25 a month to her in respect of his son for maintenance under Section 488 of the Criminal Procedure Code. The maintenance was to ran from the date of the petition, so that there were considerable arrears. The application seems to have been fought very bitterly, the husband maintaining that he had not got any means. However, the Magistrate did not believe that story. The maintenance was not paid, and on February 17, an application was made for a distress warrant, and on February 23 a warrant was issued. That was under Sub-section (3) of Section 488 which provides that 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 manner thereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance 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.
3. On the day on which the distress warrant was issued the husband applied to be adjudicated an insolvent in this Court and he was so adjudicated. On March 4, he filed a schedule which included the debt due to his wife for maintenance. I assume that it was only the arrears which were included as a provable debt, because future maintenance would be liable to variation on the order of the Magistrate. On March 5, an application was made to commit the husband under Sub-section (3) of Section 488, and on March 6, a protection order was made in the insolvency under Section 25 of the Presidency-towns Insolvency Act. On April 4, a committal order was made under Section 488 (3).
4. The first point taken is that the protection order debarred the Magistrate from making an order of committal. The effect of a protection order isspecified in Sub-section (3) of Section 25 which provides that a protection order shall protect the insolvent from being arrested or detained in prison for any debt to which such order shall apply, and any insolvent arrested or detained contrary to the terms of such order shall be entitled to his release.
5. I will assume that the order for payment of past maintenance constituted a debt provable in insolvency, but even so, I am satisfied that the protection order does not protect thedebtor) from being proceeded against in a criminal Court. A provable debt might have been incurred by reason of somecriminal offence, such as cheating or criminal misappropriation. It is obvious that a protection order would not protect against prosecution and conviction for such an offence and I think also a protection order does not protect against the special statutory power of committal given to a criminal Court under Section 488 of the Criminal Procedure Code. The case of Shyama Charan v. Anguri Devi 1938 All. 486, is a direct authority for this proposition and I agree with that decision. In my opinion, therefore, the learned Magistrate had jurisdiction to make the order.
6. Then it is contended that he ought not to have made the order because the husband had not failed without sufficient cause to comply with the order for payment of maintenance. But at the time when the learned Magistrate had to consider the question of issue of the distress warrant, the only ground which was suggested as constituting a sufficient cause for not complying with the maintenance order was lack of means. As the learned Magistrate points out, he had already considered that ground shortly before on the application for maintenance and he had disbelieved the evidence of the husband. I think, therefore, the learned Magistrate was entitled to say that he was satisfied that there was no sufficient cause for non-compliance with the order, and he was not bound to embark over again on the same inquiry as he had held previously. No doubt the adjudication of insolvency which has taken place, might to some extent alter the position. Insolvency is, I think, prima facie evidence of inability to pay a debt, though I would not go so far as the Cal-cutta High Court in Hadlfhide v. Halfhide 1923 I.L.R. 50 Cal. 867, and treat it as conclusive evidence. However, the adjudication occurred after the learned Magistrate had to consider whether there was sufficient cause or not.
7. The learned Magistrate made an order for committal for two months, and there is an application by the wife to enhance the sentence. As at present advised, I think that it was competent for the Magistrate to impose the sentence, and there is no sufficient ground for enhancing it. Sufficient ground may possibly appear as a result of the insolvency proceedings. The wife may Succeed in satisfying the Official Assignee that there are assets.
8. We propose, therefore, to dismiss the revision application but to stand over the application for enhancement with liberty to renew it at any time before the sentence has expired, if evidence is secured that there are further assets. We dismiss the revision application with costs under Sub-section (7) of Section 488 of the Criminal Procedure Code. The accused must surrender to his bail.
9. I agree.