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Sher Mohammed S/O Niyaz Mohammed Vs. Roshan D/O Annees Rehman - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Cr. Misc. Application No. 338 of 1984
Judge
Reported in1987WLN(UC)58
AppellantSher Mohammed S/O Niyaz Mohammed
RespondentRoshan D/O Annees Rehman
DispositionApplication allowed
Cases Referred and Mahipal v. Laxmi Devi
Excerpt:
criminal procedure code - section 125(3)--warrant for recovery of amount for maintenance from husband--held issue of notice is essential.;a notice before the issuance of a warrant under section 125(3) is essential it does not make any difference whether the order under section 125(1) cr. pc had been passed after hearing both the parties or was passed ex-parte.;application accepted - .....paid, the non-petitioner smt. roshan made an application under section 125(3) cr. pc before the learned magistrate on 10-12-1982 and on that very day, the learned magistrate issued a warrant for the recovery of the amount, namely, a sum of rs. 6,600/-. the warrant was returned unserved on 3-1-1983, where upon the learned magistrate directed proceedings under section 217. ipc and section 2, police act against the s.h.o concerned and at the same time, he further directed the attachment of the salary of the petitioner sher mohd. for the recovery of the aforesaid sum and directed the warrant to be sent through s.p. udaipur. aggrieved of this order, the petitioner sher mohd. filed a revision before the learned addl. sessions judge udaipur. a letter order of the learned magistrate dated.....
Judgment:

Kishore Singh Lodha, J.

1. An order fixing a monthly maintenance of Rs. 300/- to Smt. Roshan was passed against her husband Shri Sher Mohd. by the learned Judicial Magistrate, Salumber, on 3-6-1982. As the amount was not paid, the non-petitioner Smt. Roshan made an application under Section 125(3) Cr. PC before the learned Magistrate on 10-12-1982 and on that very day, the learned Magistrate issued a warrant for the recovery of the amount, namely, a sum of Rs. 6,600/-. The warrant was returned unserved on 3-1-1983, where upon the learned Magistrate directed proceedings under Section 217. IPC and Section 2, Police Act against the S.H.O concerned and at the same time, he further directed the attachment of the salary of the petitioner Sher Mohd. for the recovery of the aforesaid sum and directed the warrant to be sent through S.P. Udaipur. Aggrieved of this order, the petitioner Sher Mohd. filed a revision before the learned Addl. Sessions Judge Udaipur. A letter order of the learned Magistrate dated 17-1-1983 in furtherance of the order dated 3-1-1983 was also challenged in the revision. Two contentions were raised before the leaded Addl. Sessions Judge, (i) that the warrant for the recovery of the amount could not have been issued unless a show cause notice had first been issued to the petitioner and (ii) that the attachment of the salary was not in accordance with the provisions of Section 421(1)(b) Cr. PC. The learned Addl. Sessions Judge rejected the first objection but accepted the second one and directed that the attachment should be issued to the District. Magistrate and he accordingly, partly allowed the revision. Aggrieved of the petitioner Sher Mohd. has filed the present application under Section 482, Cr. PC.

2. I have heard the learned Counsel for the parties and have gone through the record.

3. Only one contention has been raised by the learned Counsel for the petitioner, namely, that no warrant for the recovery of the amount could have been issued under Section 125(3) Cr. PC before giving a show cause notice to the husband-petitioner. This is an admitted case of the parties that no such notice had been given before the issuance of the warrant of recovery. The learned Counsel for the petitioner has placed reliance upon Laxmi Narain v. State : AIR1959All556 and Mahipal v. Laxmi Devi (1974 WLN (UC) 70). The learned Counsel for the non-petitioner on the other hand, urged that even if a notice as envisaged by these authorities under Section 125(3) was necessary before the issuance of the warrant of recovery. the present petitioner had sufficient notice in as much as he has by now approached the Court of Sessions and this Court challenging the issuance of warrant. He further urged that as a matter of fact, no notice was necessary in the circumstances of this case because the order under Section 125(1) had been passed ex-parte.

4. I have given my careful consideration to the rival contentions and us the contention of the learned Counsel for the petitioner is supported by a decision of this Court in Mahipal's case (supra), I am inclined to accept it and as matter of fact the learned Counsel for the non-petitioner also has not disputed the principle underlying this authority. All that he has urged is that in the circumstances of this case, the notice was not necessary or even if it was necessary by now the petitioner had sufficient notice.

5. I am, however unable to agree with the learned Counsel for the non-petitioner. It was the order of the learned Magistrate issuing a warrant without first issuing a show cause notice that has been challenged by the petitioner before the learned Addl. Sessions Judge and not before this Court and therefore on that account, it cannot be said that he had sufficient notice before the issuance of the warrant. The contention that because the order under section 125(1) Cr. PC was passed ex-parte, no further notice was necessary to the present petitioner before the issuance of warrant is also, in my opinion without sub-stance. The stage of recovery of the amount arises only after the passing of an order under Section 125(1) Cr. PC. Therefore, when it is held that a notice before the issuance of a warrant under Section 125(3) is essential it does not make any difference whether the order under Section 125(1) Cr. PC had been passed after hearing both the parties or was passed ex-parte. On the other hand, in my opinion, in case of an order under Section 125 Cr. PC being passed in the absence of the husband there is all the more necessity for the issuance of a notice before the issuance of a warrant under Section 125(3) Cr. PC.

6. I, therefore, accept this application and set aside the order of the learned Addl. Sessions Judge dated 4-8-1984 and that of the learned Magistrate dated 13-1-1983.


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