Pritam Singh Pattar, J.
1. The Chief Judicial Magistrate, Patiala, by order dated 29th January, 1972, made a recommendation that the order dated 16th December, 1970, of the Judicial Magistrate, Nabha, sentencing Karnail Singh petitioner to imprisonment for one year may be quashed.
2. The facts of this case are that Gurdial Kaur vide order dated 29th June, 1970, of the Judicial Magistrate, Nabha, was granted maintenance under Section 488, Criminal P. C., against her husband Karnail Singh. She made an application on 19th August 1970, for recovery of the arrears of maintenance. Notice of this application was issued to Karnail Singh, but he was alleged to have refused to accept service and also did not appear in Court. On 7th December, 1970, the Magistrate ordered Gurdial Kaur to file a list of the property of Karnail Singh and the case was adjourned to 16th December, 1970. On the latter date the Magistrate passed the following order:
List of property could not be obtained by the applicant, since the same has not been filed. As is apparent from the record, the respondent has failed, without sufficient, cause to comply with the order, and then has not made any payment so far to the applicant. Hence in default of such payment I order that the respondent may be imprisoned for one year. His warrant of arrest be issued. The respondent may be released before one year, if he makes the payment of arrears of maintenance earlier. To come up for report on 11-1-1971.
Karnail Singh filed a revision petition against this order in the Court of the Chief Judicial Magistrate, Patiala, alleging that he was not afforded an opportunity of making an offer to maintain the respondent and that the order passed by the Magistrate was illegal and may be quashed. The Chief Judicial Magistrate, Patiala, after hearing the parties came to the conclusion that the order passed by the Magistrate was not legal and therefore he made recommendation to the High Court, for quashing the same.
3. I have heard the counsel for Karnail Singh petitioner. None appeared for the respondent. Section 488, Sub-section (3) of the Code of Criminal Procedure, reads under:
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 hereinbefore 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:
Provided 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.If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.
Provided, further, 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.
4. In the instant case the Magistrate did not issue any warrant for levying the amount due in the manner provided for recovery of fine in the Code of Criminal Procedure.
5. The counsel for the petitioner contended that without issuing a warrant for the arrears Karnail Singh could not be sentenced to any term of imprisonment. Under the second proviso to Section 488 (3) of the Code of Criminal Procedure, for every breach of the order the Magistrate can issue a warrant for levying the amount due in the manner hereinbefore provided for in levying fines and may sentence such person for the whole or part of each month's allowance that remains unpaid. In Jagannath Patra v. Purnamashi Saraf : AIR1968Ori35 it was held that in the first instance the warrant of attachment of the movable and immovable properties would be issued, the properties would be sold and applied for discharge of the arrear due, and if on such steps being taken the arrear amount still remains unpaid, it is open to the Magistrate to issue a body warrant and not until then. The order of the learned Magistrate issuing simultaneously warrant of attachment and body warrant is not in accordance with law. These observations apply to this case, Section 488 (3) of the Code of Criminal Procedure provides for sentence of imprisonment on persons 'for the whole or part of each month's allowance' remaining unpaid after execution of the warrant These words will have no meaning if it was the intention of the Legislature that even without recourse to a warrant of attachment, a warrant of imprisonment can be ordered. What is contemplated is that in the first instance warrant of attachment of the property to satisfy the demand of arrears should issue and only if the whole or any part of it remains unpaid after execution of the warrant, imprisonment can be ordered. Therefore, the issue of a warrant of attachment and sale is a condition precedent to the issue of a warrant for imprisonment. The warrant for arrest directed to be issued without first having recourse to attachment and sale of the property of the respondent is illegal.
6. In the instant case the Magistrate did not issue any warrant for attachment of the property of Karnail Singh and ordered that he should be arrested and detained for a period of one year for non-payment of the arrears of maintenance. The order is illegal and must be set aside. As a result the re commendation of the Chief Judicial Magistrate, Patiala is accepted and the order dated 16th December, 1970 of the Judicial Magistrate First Class, Nabha is quashed.