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Rajendra Nath Ghose Vs. Brojabala Ghose - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 783 of 1955
Judge
Reported inAIR1956Cal135,1956CriLJ527
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 386 and 488(3)
AppellantRajendra Nath Ghose
RespondentBrojabala Ghose
Advocates:Pravat Kumar Sen Gupta and ;Soumendra Nath Mukherjee, Advs.;Sambhu Nath Banarjee, Adv.
Excerpt:
- .....by a magistrate under the provisions of section 488, criminal p. c.2. by an order dated 7-3-1955 a learned magistrate of howrah directed payment of a monthly maintenance allowance of rs. 30/- by the petitioner to his wife. there was a further order as respects the payment of costs of hearing of the maintenance application which amounted to rs. 40/-.on 12-4-1955 the wife in whose favour the order had been made applied for enforcement of the order. notice by registered post requiring the payment of maintenance allowance of rs. 30/- as also a further sum of rs. 40/- by way of costs was issued upon the petitioner but the notice having been refused a distress warrant was directed to issued upon the general manager of the national iron and steel works ltd., of which the petitioner is an.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This Rule raises a question of some importance as respects the manner of enforcement of an order made by a Magistrate under the provisions of Section 488, Criminal P. C.

2. By an order dated 7-3-1955 a learned Magistrate of Howrah directed payment of a monthly maintenance allowance of Rs. 30/- by the petitioner to his wife. There was a further order as respects the payment of costs of hearing of the maintenance application which amounted to Rs. 40/-.

On 12-4-1955 the wife in whose favour the order had been made applied for enforcement of the order. Notice by registered post requiring the payment of maintenance allowance of Rs. 30/- as also a further sum of Rs. 40/- by way of costs was issued upon the petitioner but the notice having been refused a distress warrant was directed to issued upon the general manager of the National Iron and Steel Works Ltd., of which the petitioner is an employee, requiring the manager to attach Rs.70/- from the pay of the petitioner and to remit the amount thus realised to Court by 5-5-1955. On 11-5-1955 intimation was received from the National Steel and Iron Works Ltd., that a sum of Rs. 70/- less the money order commission had been sent to the wife of the petitioner.

When that intimation was received the learned Magistrate recorded an order that the case had been disposed of. On 15-6-1955 a further application was made by the wife for enforcement of the order of maintenance and the learned Magistrate repeated the process of enforcement of the order and directed issue of distress warrant on the General Manager of the Company to attach a sum of Rs. 60/- from the salary of the petitioner and to remit the same to the wife by money order by a certain date named) In the order. The petitioner thereafter applied to this Court and obtained the present Rule.

3. Mr. Sen Gupta appearing In support of the Rule has urged that the procedure adopted by the learned Magistrate is unknown to law. He has contended that in view of the provisions contained in Section 488, Criminal P. C., the learned Magistrate completely misdirected himself by directing the Manager of the Company to attach a definite sum of money out of the petitioner's salary and directing its payment to the wife of the petitioner. This contention requires examination.

4. Section 488(3) provides that if a person ordered to pay a maintenance allowance fails without sufficient cause to make the payment, the Magistrate concerned may, for every breach of the order, issue a warrant for levying the amount due in manner provided for levying fines. The subsection further provides that the Magistrate may, in addition, sentence any such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the war-rant, to imprisonment for a term which may extend to one month or until payment, if sooner made.

5. This section, therefore, contains a clear direction as to the manner in which warrant for levying the amount due has to be issued inasmuch as it clearly provides that the warrant will be issued in manner provided for levying of fines.

6. Section 386 of the Code which deals with warrants for levy of fine provides as follows.

386 (1)

'Whenever 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 moveable property belonging to the offender,

(b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the moveable or immoveable 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 to do so.

(2) The Provincial Government may make rules regulating the manner in which warrant under Sub-section (l), Clause (a), is to be executed, and for the summary, determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) where the Courts issue a warrant to the Collector under Sub-section (1), Clause (b), such warrant shall be deemed to be a decree and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender',

7. It is thus clear that for the purpose of [enforcement of a maintenance order, the Magis-| trate is required to follow the procedure prescribed in Section 386 above. By Clause (a) of Sub-section (1), the Magistrate may issue a warrant for the levy of the amount by attachment and sale of an immovable property of the defaulter or under Sub-section (2) the Magistrate may issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process. Sub-section (3) of the section which I have just read provides that when a warrant is addressed to a Collector under the provisions of Clause (b) of Sub-section (1), the warrant in question shall be deemed to be a decree and the Collector the decree-holder within the meaning of the Code of Civil Procedure and the nearest competent Civil Court shall be deemed to be the Court which passed the decree. It is further provided that the provisions of the Code of Civil Procedure relating to the execution of decrees shall thereafter apply.

8. If the Magistrate chooses to proceed under the provisions of Clause, (a) of Sub-section (l) of Section 388 the procedure becomes more or less a simplified one. But where, as in the present case, the salary of the defaulting husband has to be attached the provisions of Clause (b) of Sub-section (i) of the section have to be followed.

As soon as recourse is had to Clause (b) of Sub-section (1), the provisions contained in Sub-section (3) are automatically attracted so that the warrant issued to the Collector by the Magistrate concerned gets impressed with the character of a decree with the necessary consequence that it will be executable by the nearest competent civil Court and will attract the provisions of the Code of Civil Procedure relating to the execution of decrees.

9. In the instant case it is the salary of the petitioner that was said to have been attached and remitted to the petitioner's wife. It is not easy to see how salary of a person which is about to fan due can be considered moveable property in the usually accepted sense. As far as I can see, recourse must be had to Clause (b) of Sub-section (1) or Section 386, if it is intended to attach the salary for the purpose of securing the payment of maintenance allowance to the wife, if such salary has not reached the hands of the defaulter,

10. The order dated the 11th of May made by the Magistrate is an order which willy-nilly stands although it must be held that the sum of money which the wife received had been realised by means of a completely wrong procedure devised by the learned Magistrate in that behalf. The amount, as the order Itself shows, has already reached the hands of the wife and there can be no question of compelling restitution of the amount.

But what is really important is that the learned Magistrate has again by his order date 15-6-1955 repeated the procedure which he adopted earlier for the purpose of enforcement of the maintenance order by attachment of the petitioner's salary. This cannot be permitted inasmuch as there is no warrant for such procedure under the law.

11. The learned Magistrate has, in his explanation which he has submitted to this Court, drawn attention to the provisions contained in the Criminal Rules and Orders. A reference to the relevant rule shows that it is of no assistance for securing support for the view which the learned Magistrate adopted in the case.

12. The provisions of the Code to which I have referred have to be followed by Magistrates when they are called upon to enforce the payment of maintenance order. Sub-section (3) of Section 488 indicates the mode in which an order of maintenance may, in circumstances such as those of the present case, be enforced. That sub-section lays down that it has to be done In the same way as provided for levy of fines.

Section 386 which I have read above lays clown the procedure as to how fines are to be levied and this procedure must be followed in cases of enforcement of orders for payment of maintenance allowance; imprisonment will follow for the whole or any part of a month's allowance remaining unpaid after execution of the warrant.

13. The result, therefore, is that the order of the Magistrate dated 15-6-1S55 is set aside and the Magistrate is directed to follow the provisions of the law and to regulate his procedure in accor dance therewith at the observations made above.


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