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K.V. Rudraiah, Bangalore Vs. B.S. Mudda Gangamma - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 131 of 1984
Judge
Reported inILR1984KAR261
ActsCode of Criminal Procedure (CrPC) - Sections 60, 125, 125 (3) 357, 386 and 421
AppellantK.V. Rudraiah, Bangalore
RespondentB.S. Mudda Gangamma
Appellant AdvocateN.K. Gupta, Adv.
Respondent AdvocateR.B. Sadashivappa, Adv.
Excerpt:
.....is no provision for continuing the workman in a post, which is not sanctioned and continuing the person in respect of a non-sanctioned post amounts to continuation in a post which is not in existence, would be illegal and amount to creating the post without cadre strength. on facts, held, in the present case the workman has proved that he has worked 240 days in a year and the refusal of work would amounts to retrenchment. however, in view of the project being completed and there is already a surplus staff of 1163 and also the post being a non-sanctioned post, continuing the respondent in service or reinstating the respondent would be wholly illegal. in the circumstances, it is just and proper to grant the relief of compensation of rs.50,000/- in place of reinstatement. - 421 ? 8...........the learned magistrate, overruling the objections of the husband, has directed attachment of the salary payable to the husband by the state government. it may be noted that he is an employee under the state government and is working as a forest guard in the department of forests. 3. sub-section (3) of s. 125 of the code provides that 'if the person concerned fails without sufficient cause to comply with the order' the magistrate may 'issue a warrant for levying the amount due in the manner provided for levying fines .....' 4. the levy of fine is provided for in s. 421 and the other allied provisions of the code. s. 421 of the code reads : '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.....
Judgment:
ORDER

1. The respondent is the wife of the petitioner. She obtained an order in C.M.C. No. 4/82 on the file of the J.M.F.C., Gouribidanur under S. 125 of the Cr.P.C. for monthly maintenance at the rate of Rs. 200/-.

2. Since the husband is said to have committed default in paying the monthly maintenance she has applied to the court under S. 125(3) of the Code for recovery of the amounts due. By the impugned order, the learned Magistrate, overruling the objections of the husband, has directed attachment of the salary payable to the husband by the State Government. It may be noted that he is an employee under the State Government and is working as a Forest Guard in the Department of Forests.

3. Sub-section (3) of S. 125 of the Code provides that 'If the person concerned fails without sufficient cause to comply with the order' the Magistrate may 'issue a warrant for levying the amount due in the manner provided for levying fines .....'

4. The levy of fine is provided for in S. 421 and the other allied provisions of the Code. S. 421 of the Code reads :

'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 S. 357.'

5. In the instant case, the learned Magistrate taking recourse to clause (a) of sub-section (1) of S. 421 has issued a warrant of attachment for attaching the salary payable to the husband, as stated above.

6. The contention of the learned counsel for the petitioner is that clause (a) referred to above does not permit attachment and withdrawal of the future salary payable to his client and therefore, the order deserves to be quashed.

7. The question that falls for consideration in this case is :

Is a warrant for levy of the amount by attachment and withdrawal from out of the salary of a salaried person when it becomes payable to him so as to adjust that sum towards the outstanding claim of maintenance ordered under S. 125 of the Code impermissible under clause (a) of S. 421

8. In support of his contention the learned counsel for the petitioner places strong reliance on a Division Bench decision of Rajasthan High Court in Baldevi v. Ramnath . The learned Judges in that case were considering in this respect the scope of S. 386 of the old Code. The main part of sub-section (1) of S. 386 with its two cls. (a) and (b) of the old Code are almost analogous in terms with the main part of sub-section (1) of S. 421 of the new Code with its two cls. (a) and (b). The learned Judges of the Rajasthan High Court in Baldevi are of the view that movable property referred in clause (a) of sub-section (1) of S. 386 has reference only to a tangible movable property which can be seized, but not future salary payable. If it is future salary payable or salary that becomes due that can only be attached and realised according to them, by taking recourse to clause (b) of sub-section (1) of S. 386. It is in that connection their Lordships pointedly refer to the words 'according to the civil process' found in clause (b) of S. 386 of the old Code.

9. Placing reliance on Baldevi the Judicial Commissioner of Goa, Daman & Diu in Ali Khan v. Smt. Hajrambi 1981 Cri LJ 682 (Goa) is also of the view that future salary of an employee cannot be attached under S. 421(1)(a) of the Code.

10. The learned counsel for the respondent, on the other hand, drew my attention to the decision of the Andhra Pradesh High Court in Ahmed Pasha v. Wajid Unisa 1983 Cri LJ 479. The learned single Judge, being of opinion that the person who has obtained an order of maintenance under S. 125 should not be placed in a position worse than that of a money lender or a Bank who has a right under S. 60 of the C.P.C. to get the future salary of an official attached, has further observed that it was permissible under S. 421(1)(a) to attach future salary and to withdraw the amount to the criminal court. The provisions contained in Chap. 9 of the Code enable the discarded wives, the deserted children and aged parents who are destitutes to secure the much needed relief. The object is preventive and ameliorative. These provisions provide for a speedy remedy for the persons in need. Such beneficial provisions will have to be construed in such a manner so that the object of the law is fulfilled.

11. In the instant case, according to me, the provision - S. 421(1)(a) of the Code - need not even be subjected to any strained interpretation so as to enable the Court to attach the salary of the person concerned. Clause (a) provides 'for the levy of the amount by attachment of any movable property belonging to the 'person concerned. It is nobody's case that money is not movable property may also see Pichu Vadhiar v. Secretary of State for India in Council (1917) 38 Ind Cas 986 : 1917 (18) Cri LJ 426 (Mad).

12. But the main grievance of the counsel for the petitioner appears to be that future salary is not tangible corporeal property belonging to the person concerned when warrant for levy of the amount by attachment is issued and therefore clause (a) is not applicable.

13. I am unable to agree with him, and, with due respect the decision in Baldevi (1955 Cri LJ 621) (Raj). The warrant issued under clause (a) becomes effective the moment the salary accrues due to the person concerned or when that money becomes payable to him and until then the direction contained in the attachment warrant remains dormant. In this view of the matter, it cannot be said that the salary payable to an employee is not amenable for a levy warrant issued under clause (a) referred to above. For the reasons stated above, there being no merit in this petition, the same is hereby dismissed.

14. Petition dismissed.


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