H. Hombe Gowda, C.J.
1. This is a reference made under Section 438 of the Code of Criminal Procedure by the Second Additional Sessions Judge, Bangalore, in the following circumstances:
2. Respondents 2 and 3 who are mother and daughter respectievly, filed an application for grant of maintenance under Section 488 of the Code of Criminal Procedure against the first respondent, who is the husband of the 2nd respondent. After contest an order awarding a maintenance at the rate of Rs. 50/- per month was passed In favour of respondents 2 and 3 by the City Magistrate, Bangalore. The first respondent did not pay the maintenance so awarded to respondents 2 and 3. Therefore, respondents 2 and 3 made an application on 31-1-1963 and sought for the enforcement of the order of maintenance passed in their favour. They stated in their application that the first respondent is an employee in the Railways Department getting a salary of Rs. 130/-, that he had Intentionally disobeyed the orders passed by the court and had not paid any amount towards the maintenance and that therefore, an order of attachment of Rs. 50/- per month from out of the salary payable to the first respondent may be passed. The learned Magistrate, who entertained this application, passed in order as follows:
Issue salary attachment warrant for Rs. 50/- per month.
Notice of this application was served on the first respondent. He appeared before the Court and made an application on 20-6-1963 praying for withdrawal of the warrant of attachment of salary. He alleged that the warrant of attachment Issued by the Magistrate was without jurisdiction and in violation of the provisions of Section 60 of the Code of Civil Procedure and the Payment of Wages Act. The learned Magistrate, who heard the arguments advanced on behalf of the first respondent, rejected his application. He held that the provisions of the Code of Civil Procedure were not applicable to proceedings under Section 488 of the Code of Criminal Procedure or recovery warrants therein. The first respondent filed a revision petition against the said order to the Court of the Sessions Judge, Bangalore. The revision petition is purported to have been filed under Section 435 of the Code of Criminal Procedure. The said Revision Petition was beard by the Second Additional Sessions Judge, Bangalore. The learned Sessions Judge was of the opinion that the order passed by the City Magistrate on the application filed by respondents 2 and 3 directing the disbursing officer to attach a sum of Rs. 50/- per month from out of the salary due to first respondent was not legal and was opposed to the provisions of Section 386 Cr. P. C. and has recommended under Section 438 Cr. P. C. the order to be quashed.
3. Mr. Mahajan learned High Court Government Pleader who appeared for the State opposed this reference. He contended that the order of attachment passed by the City Magistrate, Bangalore is legal. He urged that if the person, against whom an order (is passed?) under Section 488 of the Code of Criminal Procedure, is a Government servant or an employee of the railway (as the first respondent is) his salary can be attached under the Code of Civil Procedure even though the salary has not become payable to him. He contends that the salary or pay due to a Government servant is 'moveable' property for all purposes and that therefore the Magistrate is competent to issue an order of attachment under Section 380(1) of the Code of Criminal Procedure. He further contended that the tact that the salary had not yet accrued or become payable cannot come in the way of such an order of attachment being issued. But Mr. N. C, Mahajan fairly conceded that such an order can be passed to recover arrears of maintenance already accrued and cannot be made effective in respect of amounts likely to accrue in future. He also fairly conceded that the order passed by the Magistrate can only be effective in respect of the arrears of salary already accrued as arrears and it cannot be effective in so far as it affects the salary which Is likely to accrue from month to month, Mr. Mahajan was unable to support this argument of Ms by citing any of the decisions of the High Courts. On the other hand he brought to my notice two decisions in which the High Courts of Calcutta and Rajasthan have taken a contrary view. In Rajendra Nath Ghose v. Brojabala Ghose : AIR1936Cal135 the question as to whether a Magistrate is competent to issue attachment warrant in respect of the salary that has not become due as yet was considered by Debabrata Mookerjee J. His Lordship held that when the Magistrate is required to follow the procedure prescribed in Section 386 Cr, P. C. the salary of the defaulting husband can only be attached in strict compliance of the provisions of Clause (b) of Sub-section (1) of Section 386 Cr. P. C. and not in any other manner. His Lordship further held that if recourse is taken to clause (b) of Sub-section (1) of Section 386 of the Code of Criminal Procedure the provisions of Sub-section (3) are automatically attracted and that the command issued to the Collector by the Magistrate gets impressed with the character of a decree and be-comes executable as a decree passed by the nearest competent civil Court and will then attract the provisions of the Code of Civil Procedure relating to execution of decrees. His Lordship, therefore, held that without taking recourse to Sub-section (1) (b) of Section 386 read with Sub-section (3) of the said section, no order of attachment of the salary of a Government servant or an employee of a private firm can be issued.
4. The point came up for consideration before a Division Bench of the Rajasthan High Court in Baldevi v. Ramnath (S) AIR 1955 Raj 01. The facts of that case are almost similar to the facts of the case before me. In the said case one Smt. Baldevi obtained an order for maintenance against her husband. The husband committed default. Thereafter the wife applied for enforcement of the said order in respect of one month's maintenance clue to her. The husband was employed in the office of the Superintendent, Divisional Telegraph, Ajmer. The wife prayed that the salary of the husband which is payable every month by the Superintendent might be attached and the disbursing officer may be directed to send a sum of Rs. 30/- per month to her. On being served with the notice of this application Ramnath, the husband appeared before Court and contended that the Court was not competent to pass such an order. He urged that the procedure of attaching any portion of the salary due to a Government servant for the recovery of arrears of maintenance due under an order passed under Section 488 of the Code of Criminal Procedure was not executable by attaching his salary and that the application was liable to be rejected. This objection was upheld by the Magistrate and the application filed by Baldevi was dismissed. Thereupon Baldevi went up in revision to the Sessions Judge. The learned Sessions, Judge, who heard the arguments advanced on behalf of the parties, held that the view taken by the Magistrate was wrong and made a reference to the High Court of Rajasthan under Section 438 of the Code of Criminal Procedure for quashing the order. The Sessions Judge was of the opinion that if the view taken by the trial Magistrate was allowed to stand it would only mean that the applicant can never get any amount out of his salary attached throughout her life for payment of arrears of maintenance amount and it would work as a hardship to her. The reference came up before a Division Bench presided over by K, N. Wanchoo C. J. Cas he then was). The Court held that the view taken by the Magistrate was correct and that the reference was untenable and rejected the same. Wanchoo C. J., who spoke for the Bench observed as follows:
A perusal of the various provisions of the Criminal Procedure Code will show that the kind of prayer made by Shrimati Baladevi in her application on 28-3-1952 cannot be allowed by the Criminal Court. Section 488(3) provides for execution of order of maintenance and under it if any person fails to comply with the order, any Magistrate may, for every breach of order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines. There is also a provision for sentencing the man to imprisonment for a term extending up to one month or until payment is made. Therefore, Smt. Baladevi could only ask on the date on which she made her application, namely, 28-3-1952 for realisation of one month's arrears which were due to her. She could not possibly ask for an order of attachment under Section 488(3) for moneys due to her as maintenance, which had not accrued to her up to that date.
So far as this amount of Rs. 30/- is concerned, she could certainly ask for realisation of it under Section 488(3), and the method provided is given in Section 386 of the Code of Criminal Procedure. That section provides two ways under which fines may be realised, and the same procedure applies to realisation of maintenance allowance.
These two ways are:
(a) issue of a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender.
(b) issue of an order to the Collector of the District authorising him to realise the amount by execution according to civil process against the moveable or immovable property, or both, of the defaulter.
His Lordship considered the question as to whether 'moveable property' contemplated in Clause (a) of Section 386(1) includes salary not yet accrued. His Lordship observed thus:
Clause (a) of Section 386(1) Cr. p. C. authorises the Magistrate to attach any moveable property belonging to the offender. Moveable property has not been defined in the Criminal Procedure Code, but the definition of it, given in Section 22, Penal Code can be used by virtue of Section 4(2) of the Code of Criminal Procedure. Under Section 22 Penal Code, moveable property includes corporeal property of every description except land and things attached to the earth or permanently fastened to anything which is attached to the earth.
This definition is more restrictive and different from that given in the General Clauses Act where moveable property means property of every description except immoveable property. It appears to us that for purposes of the Penal Code moveable property meant tangible corporeal property which could be perceived and seized.
Further as Section 386 Cr. P. C. provides two separate ways of realising fines, namely (1) by attachment and sale of moveable property by the Magistrate and (2) by civil process, It seems to us that the intention was that the first method should be used where it was possible for the property to be seized. Further, clause (a) shows that the property which is to be seized, must belong to the offender, and it was only at that stage that the Magistrate could attach it and proceed to sell it. We are, therefore, of opinion that so far as the words 'moveable property' in clause (a) of Section 386 are concerned, they refer to tangible moveable property which can be seized, and which must be belonging to the offender.
If it is movable property of other description, the remedy is under Clause (b) by civil process. The very fact that execution by civil process is allowed to the case of movable property also shows that there is difference in the meaning of the words 'moveable property' as used in Clause (a) and as used In Clause (b). Shrimati Baladevi, therefore, could not ask the magistrate to attach the future salary of Ramnath as and when it became due for two reasons. In the first place, future salary was not tangible corporeal property available for seizure. In the second place, it did not belong to Ramnath because he could not be said to have earned his future salary. The Magistrate therefore was right in holding that no attachment of future salary could be made under the provisions of the criminal law.
I respectfully agree with the above view of the learned Chief Justice.
5. It is clear from the above that the order passed by the learned City Magistrate, Bangalore, directing the disbursing officer to attach a sum of Rs, 50/- from out of the salary due to the first respondent is illegal and cannot be supported and the same is liable to be quashed.
6. In the result therefore, for the reasons stated above, the recommendation of the learned Second Additional Sessions Judge for quashing the order passed by the City Magistrate, Bangalore, accepted and the order passed by the City Magistrate, Bangalore, is quashed. The papers will now go back to the lower Court.