IMPORTANT POINT
Recovery of maintenance allowance by a person who is entitled to maintenance allowance under provisions of Section 125 of Code of Criminal Procedure, 1973 can be effected by attachment of the salary of the person who is subjected to order of payment of maintenance allowance.

Headnote:(i) Criminal Procedure Code, 1973.- Sections 125 (3) and 421- Indian Penal Code, 1860 - Section 22 - General Clauses Act, 1893 - Section 3 (36) - Right of recovery of maintenance allowance u/s 125 by attachment of salary of person who is subjected to order of payment of maintenance allowance - Intangible movable assets of such a person would be liable to be attached - Future accrual of salary of such a person is a 'movable property' - Definition of expression 'movable property', as contained in Section 22 I.P.C. cannot be legally inducted into provisions of chapter IX C.r. P.C. and Sec. 421 (1)(a) of Code- Definition given in General Clauses Act will have to be resorted to for determining connotation of expression 'movable property'.
       Held, that the General Clauses Act defines the expression "movable property" so as to include therein not only the tangible corporeal movable property, but also the intangible movable assets such as debts, choses in action and consequently, a right to receive the salary and wages from an employer. If, for the reasons already discussed, the definition of the expression "movable property" as contained in Section 22 of Indian Penal Code cannot be of any use to interpret certain provisions of the Code of Criminal Procedure, the aforesaid definition given in the General Clauses Act, 1897 will have to be resorted to for determining the connotation of the expression 'movable property' for the purposes of various provisions contained in Code of Criminal Procedure. Shri Sambre, the learned Counsel for the petitioner, as well as the learned A.G.P. Shri Rajeev Madkholkar, were right in submitting that this should be the connotation of the expression for the purpose of Section 421 (1)( a) of the Code of Criminal Procedure, especially when that is to be read in the context of provisions contained in Chapter IX of the said Code. (para 11)
       Further Held: The definition of "movable property" given in the Indian Penal Code, is basically meant for the provisions contained in the Indian Penal Code itself. The Penal Code classifies the offences under various heads. Many of those heads deal with various items of movable property. For instance, Chapter XIII of Indian Penal Code deals with offences relating to coins and government stamps. Chapter XIII deals with offences relating to weights and measures. Chapter XVII deals with movables which could be stolen, robbed or extorted. These Chapters deal with tangible corporeal property. But there are offences categorised under some other heads which deal with intangible movable property. Such are the offences relating to documents and property marks covered by Chapter XVII of the Penal Code. Offences described in Chapter XVIII, however, do not use the word "movable property" at any place for referring to the objects in respect of which the offences have been committed. When the framers of the Indian Penal Code were aware of and were, in fact, intending to provide for defining and penalising the offences pertaining to movable property, both tangible and intangible, the connotation of the expression 'movable property' ought to be restricted to certain types of property when the intention was to deal with tangible movable property alone. This does not mean that the Indian Penal Code, by itself, does not recognise the distinction between the tangible movable property and intangible movable property at all. When the Indian Penal Code itself does not do away with this distinction and when it purports to deal with tangible movable property under certain provisions and intangible movable property under other provisions, it could hardly be said that the definition of 'movable property' as corporeal property of every description was supposed to apply for all purposes. In itself, the aforesaid definition given in the Indian Penal-Code is restricted to certain objects. (Para 8)
       Consequently Held: The context and the use of the expression "movable property" in Section 421 of the Code of Criminal Procedure are altogether different when that provision is to be read in the context of the civil rights which are to be adjudged upon and settled by a decision of non punitive law proceedings under Chapter IX of the Code of Criminal Procedure than the context and the case of that expression in punitive proceedings. The definition of expression "movable property" given in the Indian Penal Code cannot be legally inducted into the aforesaid provisions for the purpose of determining the scope of the application of the aforesaid provisions, much less for the enforcement of the rights determined and settled in proceedings like proceedings under Chapter IX of the Code of Criminal Procedure. The learned Counsel arguing the case before me, both Mr. Sambre and Mr. Rajeev Madkholkar, rightly submitted, that the definition which was meant for punitive purposes could not be utilised for the purpose of detennining the extent, scope and enforcement of the civil rights settled in proceedings under Chapter IX of the Code of Criminal Procedure: (Para 9)
       The definition of the expression "movable property", as contained in Section 22 of the Indian Penal Code is not useful for the purpose of interpreting the aforesaid provisions contained in Code of Criminal Procedure. In other words, intrinsically itself, the provisions contained in the Sections 82 to 85 of the Code of Criminal Procedure show that if the context requires otherwise, the expression 'movable property' as used in the Code of Criminal Procedure does not necessarily have the same connotation as it has under Section 22 of the Indian Penal Code. (para 10)
       The expression 'attachment and sale' used in Section 421 (l)(a) of the Code of Criminal Procedure does not necessarily mean, as held in Jagoo Sarju 's case, tangible corporeal property also for the reason that if the contrary view is taken, it would lead to certain preposterous propositions. If a person, from whom some amount is to be recovered towards the fine imposed on him according to law, or if some amount is to be recovered from him in the manner prescribed for the levy of fines, has no tangible movable property, nor any movable property, but he has only some assets of intangible movable property, can it be said that the State shall not be entitled to recover the amount of fine, or other amounts which are leviable as fine, by proceeding against the aforesaid intangible movable assets? That is certainly not the purpose, object or intendement of law. Again, if under the civil law a creditor of such a person is entitled to attach intangible movable assets for satisfying his private claim, can it be said that the creditor would be entitled to do so in law, but not the State or, for the purpose of Chapter IX of the Code of Criminal Procedure the neglected dependents of the said person? By all means, it would be reasonable and legal to hold, that the intangible movable assets of such a person would be liable to be attached and sold for the purposes of levying the amount of fine or the amounts which are leviable as fine. (para 12)
       (ii) Criminal Procedure Code, 1973 - Section 421 (1) - Indian Penal Code, 1860 - Section 22 - General Clauses Act, 1893 - Section 3 (36) - Expression 'movable property' – Connotation of' (para 10)
       Result: Petition allowed.

JUDGMENT

M.S. Vaidya, J. - This is a petition under Section 482 of Code of Criminal Procedure, challenging the orders passed by the Third Additional Sessions Judge, Nagpur, in criminal Revision Applications Nos. 1550/92, 1551/92 and one unregistered Criminal Revisions Application dated 10.2.1993. The proceeding raises really a vitally important question of law which pertains to the right of recovery of maintenance allowance by a person who is entitled to maintenance allowance under the provisions of Section 125 of Code of Criminal Procedure, 1973 by attachment of the salary of the person who is subjected to order of payment of maintenance allowance.

2. Petitioners are the minor sons of respondent No. 1. In Misc. Criminal Application No. 139/88 filed by them under Section 125 of the Code of Criminal Procedure, they had applied for maintenance allowance from their father, the respondent No. 1. The matter came to be decided on 20.6.1989. The respondent No. 1 had committed defaults in payment of the maintenance allowance. Therefore, three consecutive recovery proceedings were filed before the learned Magistrate for recovery of the arrears of maintenance allowance for the period from 2.11.1988 to 30.6.1989, 14.2.1990 to 31.10.1990 and from 1.11.1990 to 31.12.1990 respectively. Despite the appearance of the respondent in those proceedings, he failed to deposit the amounts in Court or to pay the same to the petitioners. Therefore, three applications were filed on behalf of the petitioners for seeking attachment of the salary of the respondent. The said applications were granted and warrants of attachment were accordingly issued. Thereafter, the respondent filed the three revision petitions in question and they were decided on 10.2.1993 by the learned Additional Sessions Judge by a common judgment. All the three revision applications were allowed by the learned Additional Sessions Judge on the ground that future accrual of the salary of the respondent was not a 'movable property' within the meaning of the definition of the term given in the Indian Penal Code and as the mode of recovery of arrears of maintenance allowance was prescribed by Section 125 (3) itself, the provisions contained in Section 421 of the Code of Criminal Procedure would have to be adhered to for the purposes of recovery of the arrears. In short, it was held that as the mode of recovery was prescribed to be the mode that was prescribed for levying of the fines and as Section 421(1)(a) of Cr. P.C. provided only for attachment of movable property, the future salary, which was not a movable property within the meaning of the term, could not be attached. The learned Additional Sessions Judge had, in doing so, adopted the reasoning which was assigned in Jagoo Sarju v. Ramkali Jagoo and others1. On behalf of the petitioners, reliance was placed on Ahmed Pasha v. Wajid Unissa2, in support of the proposition that the future salary could be attached for recovery of arrears. In accordance .with the view so taken by the learned Additional Sessions Judge, he had allowed all the three revision petitions and had set aside the orders passed by the learned Magistrate directing the issuance of the warrants for attachment of salary.

3. It must be said to the credit of the learned Additional Sessions Judge that in deciding the point in question, he had referred to the latest ruling on the point in Jagoo Sarju case (supra). In that case, the husband had failed to pay the arrears and the salary of the petitioner before that Court was ought to be attached to the tune of. Rs. 5,450/-. This Court held that for recovery of the amount due under an order of maintenance, the Court had to follow the procedure laid down in Section 421 Cr. P.C. for recovery of fine. The future salary of a person, which was not yet a tangible movable property in his possession, could not be said to be the movable property within the meaning of Section 421 of the Code, because the words 'movable property' in Cla

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Judicial Analysis

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IMPORTANT POINTRecovery of maintenance allowance by a person who is entitled to maintenance allowance under provisions of Section 125 of Code of Criminal Procedure, 1973 can be effected by attachment of the salary of the person who is subjected to order of payment of maintenance allowance.

Cases Referred (1)

Judicial Analysis

IMPORTANT POINT
Recovery of maintenance allowance by a person who is entitled to maintenance allowance under provisions of Section 125 of Code of Criminal Procedure, 1973 can be effected by attachment of the salary of the person who is subjected to order of payment of maintenance allowance.