Banerjee and Sale, JJ.
1. It appears that the petitioner in this case was directed by an order, dated the 28th of April last, to pay maintenance to his wife, Gyanada Sundari and his son, at the rates of Rs. 6 and Rs. 3 a month, respectively. The amount due for the last three months having remained unpaid, an application was made for the enforcement of payment, and a warrant for levying the amount by distress was issued on the 10th of August last. The amount not having been realised under the warrant, the arrest of the defendant was ordered on the 1st September, and on the 7th September the following order was made: 'Brought up to-day to pay Rs. 27 or in default to be imprisoned for one month. Allowed bail to the amount to pay in fifteen days.' The amount not having been paid the following order was made on the 17th October: 'Defendant appears to-day. He has not paid the money. Warrant of commitment to jail for one month under Section 488 of the Code of Criminal Procedure to be issued.' Then on the 18th idem an application was made by the brother of the defendant offering the amount due and praying for the release of the defendant. Upon that, this is the order that was made: 'The amount may be paid by the petitioner, but the punishment is absolute. It is not dependent on payment of the maintenance allowance.' The amount was received, but the defendant was not released.
2. It is this order the propriety and legality of which have been called in question before us, and we have been asked, under Section 439 of the Code of Criminal Procedure, to set it aside for three reasons-first, because an opportunity should have been allowed to the petitioner to prove the change of circumstances which he alleged in his petition and which went to show that the order required to be modified; secondly, because no sentence of imprisonment is authorised by Section 488 of the Code of Criminal Procedure, unless it is shown that there was wilful neglect to comply with the order of the Court; and, thirdly, because the imprisonment that is authorized by Section 488, being only a mode of enforcement of payment, should have been ordered to cease as soon as the payment was made.
3. We do not think that the first ground is tenable. Though, upon a change of circumstances being shown, the existing order may be modified, still, so long as that order remains in force, it must carry with it its proper consequences. This view is, we think, to some extent supported by the case of Nepoor Aurut v. Jurai 10 B.L.R. Ap. 33 : 19 W.R. Cr. 73.
4. The second ground urged before us is, however, in our opinion, a valid ground for our interfering with the order. The provisions of the third paragraph of Section 488 being of a penal character ought, as observed by Mr. Justice Straight in the case of Queen-Empress v. Narain I.L.R. 9 Cal. 240, to be strictly construed, and, as far as possible, construed in favour of the subject. The paragraph runs thus: 'If any person so ordered wilfully neglects 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, &c.;' It is necessary, therefore, before the order can be enforced by a sentence of imprisonment, that it should be made out that the non-payment of maintenance was the result of wilful negligence on the part of the defendant. There is nothing on the face of the order to show that that condition has been satisfied. All that the Magistrate says in his order of the 3rd August is this: 'Some evidence must be produced within seven days to show that the amount has not been paid.' The Magistrate here seems to think that the mere fact of non-payment of maintenance feeling made out would be sufficient to justify an order sending the defendant to jail. That view is, in our opinion, quite wrong.
5. We are also of opinion that the third ground is valid, though we must say that the question raised in connection with it is not altogether free from difficulty. The language of the third paragraph of Section 488 is not very explicit, and this creates some difficulty in construing it; and that difficulty is enhanced by the fact that the Madras High Court has in the case of Biyacha v. Moidin Kutti I.L.R. 8 Mad. 70 taken a view which is different from that which we are now disposed to take. Mr. Justice HUTCHINS observes: 'The question is a difficult > one, but we are bound to go by what the Legislature has said, and I am constrained to hold that, although the Magistrate is not bound to order the full term of imprisonment for which the defaulter is liable under Section 488 of the Code of Criminal Procedure, yet whatever time is ordered must be served. The language of that section, and of the corresponding form in Schedule V, is very different from that employed in cases where the imprisonment is to cease on payment.' And Sir CHARLES Turner, Chief Justice, adds: 'It is difficult to see what object the Legislature can have had beyond the enforcement of the payment unless it be to punish the husband for contempt of the order; but I am unable to say that the language of the Code warrants any other construction than that which has been adopted by my learned colleague.'
6. No doubt, if the construction put upon the section by the Court below had merely led to anomalous or unreasonable consequences, but had clearly been the only construction warranted by the language of the section, we should be bound, however great the unreasonableness might be, to follow the express words of the law. But with all respect for the learned Judges who decided the case of Biyacha v. Moidin Kutti I.L.R. 8 Mad. 70, we must say that the language of the section is not so explicit and clear in favour of the view taken by the Magistrate. The section says: 'If any person so ordered wilfully neglects 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.' That shows that a sentence of imprisonment can be passed only after there has been wilful neglect to comply with the order, followed by an unsuccessful process of distraint; and in that contingency, the sentence of imprisonment is to be 'for the whole or any part of each month's maintenance remaining unpaid after execution of the warrant.' This, to our minds, clearly indicates that the imprisonment that is ordered is, in the first place, not a punishment for contempt of the Court's order, as the learned Judges of the Madras High. Court in the case cited above seem to think; and, in the second place, it is for the whole or any part of each month's allowance remaining unpaid after execution of the warrant. It cannot be regarded as a punishment for the breach of the order; for, if that were the case, the punishment would follow upon the breach of the order, irrespective of any success or the reverse in the levying of the amount by warrant, whereas that is not what the section enacts. According to the express terms of the section, the disobedience of the order may be never so gross and wilful, and yet, if the amount ordered to be paid is realised in full by execution of the warrant, no sentence of imprisonment is to follow. This conclusively shows that the sentence is not for the disobedience or contempt of the Court's order. Nor again would it be right in our opinion to hold that the sentence of imprisonment is an absolute sentence, for the law says that the Magistrate may sentence such person 'for the whole or any part of each month's allowance remaining unpaid' to imprisonment. That shows that the imprisonment is for the unpaid portion of the maintenance or, in other words, that it is owing to default of payment of the unrealised portion of the maintenance; and, if that is so, the imprisonment that is ordered ought to cease upon payment being made.
7. We should add that even if the meaning of the section had been otherwise, still, in the exercise of our powers of revision under Section 439* of the Code of Criminal Procedure, we should have felt bound to reduce the sentence to imprisonment for a day or for such term as has been already undergone.
8. For these several reasons we think that the order complained of must be set aside and the petitioner discharged.
* High Court's powers of revision.
[Section 439: In the case of any proceeding the record of which has been called for by itself, or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion exercise any of the powers conferred on a Court of appeal by Sections 195, 423, 426, 427 and 428, or on a Court by Section 338, and may enhance the sentence, and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.
Where the sentence dealt with under this section has been passed by a Magistrate acting otherwise than under Section 34, the Court shall not inflict a greater punishment for the offence which, in the opinion of such Court, the accused has committed, than might have been inflicted for such offence by a Presidency Magistrate or a Magistrate of the first class.
Nothing in this section applies to an entry made under Section 273, or shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.]