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2009(3) Crimes 696 (Ker.)
KERALA HIGH COURT
R. Basants, J.
T.K. Ramakrishnan —Petitioner
versus
Subhadra —Respondent
RP (FC) No. 486 of 2007
Decided on 18.2.2009
Held: The crucial question that is posed before me is whether steps under Sections 421(1)(a) and 421(1)(b), Cr.P.C. must both be resorted to before a sentence is imposed under Section 125(3), Cr.P.C. A reading of Section 125(3) makes it crystal clear that steps for recovery by issue of warrant have to precede the imposition of a sentence imposed. The very language of Section 125(3) does not admit of any doubt on that aspect. That position has been accepted in the decisions in Nithiyanandan and Kuttappan (supra). There can be no doubt on this aspect at all. Insofar as Kerala is concerned, it is now settled beyond controversy that no sentence can be imposed under Section 125(3), Cr.P.C. without and before an attempt is made to recover the amount in the manner provided for levying fines. Both Nithiyanandan and Kuttappan were concerned with the question whether a sentence can be imposed without and before any steps are taken for recovering the amount in the manner provided for levying fines. (Para 12)
That takes me to the question whether it is invariably necessary to issue warrants even when the Court is convinced that no movable or immovable property is available for attachment under Sections 421(1)(a) and 421(1)(b), Cr.P.C. The learned counsel points put that in many cases when two applications are pending simultaneously, separate warrants are issued-both under Sections 421(1)(a) and 421(1)(b) in each of such cases and the Family Court awaits return of such warrants in both the cases before proceeding to impose a sentence under Section 125(3), Cr.P.C. If once warrant has already been issued and the Court is convinced that there is no movable or immovable property of the defaulter available to be attached, it is unnecessary to continue to issue such warrants, contends the counsel.
I find merit in this contention. Issue of warrants for recovery of the maintenance amount under Section 125(3), Cr.P.C. need not be pursued as a mere ritual. Where the Court is satisfied on materials that no purpose will be served by issue of such a warrant, I find no reason why such warrant should be issued at all. Under Section 125(3), Cr.P.C., the learned Magistrate (the Family Court now) is given discretion and the expression used is “may”. He has power to issue a warrant for levying the defaulted amount in the manner provided for levying fines. That discretion, according to me, is not taken away by the decisions in Nithiyanandan and Kuttappan. Where the Court is convinced that issue of such warrant will serve no purpose at all on the basis of the materials before it, I am of opinion that the Court can certainly save time by not issuing warrant ritualistically and waiting for return of such warrants. (Paras 18 & 19)
Family Courts can certainly adopt a more user friendly procedure to ensure that there is no unnecessary delay in the execution of orders passed under Section 125, Cr.P.C. The claimants, who want orders to be executed, can be directed to file affidavits to confirm that there has been default and that recovery is possible or not possible by issue of warrants for the attachment of movable or immovable property of the defaulter. If such affidavits are filed and movable or immovable properties are specified, warrants can straightaway be issued under Section 421(1)(a) and/or 421(1)(b), Cr.P.C. to recover the amounts by attachment of such movable or immovable properties. On the contrary, if there is an assertion in such affidavits that the defaulter has no movable or immovable property notice can be ordered to the defaulter and his response can be ascertained. If he would not dispute the assertion that movable or immovable properties are not available for attachment, it would be idle and unnecessary for the Family Court, to wait for issue and return of such warrants. Such procedure adopted by the Family Courts, I am satisfied, shall certainly quicken the pace of execution of orders passed under Section 125, Cr.P.C. But the Family Court, if it adopts the course of not issuing warrants must clearly indicate in its order the reasons for adopting such course. Ordinarily attempt to recover the amounts by issue of warrant must precede the imposition of sentence under Section 125(3), Cr.P.C. (Para 22)
In the facts of the case I do note that warrant under Section 421(1)(a), Cr.P.C. was issued but no recovery has been effected. There is no contention even for the petitioner that he has any movable or immovable properties or that the amounts due can be recovered by issue of warrant against such properties. His very stand is that he has no movable or immovable properties. In these circumstances, the challenge against the order on the second ground fails.
26. I may attempt to summarise the law and the healthy procedure to be followed under Section 125(3) as follows:
(1) As per Nithiyanandan and Kuttappan warrant has to be issued ordinarily before imposing a sentence under Section 127(3) and the Family Court may in its discretion issue warrants either under Sections 421(1)(a) or 421(1)(b) or both. These decisions do not oblige the Family Court to invariably issue warrants both under Section 421(1)(a) and 421(1)(b).
(2) In a case whereon materials placed before Court the Family Courts is satisfied that no useful purpose will be served by issue of warrant under Sections 421(1)(a) and 421(1)(b), the Family Court can record the reasons for such satisfaction and proceed to pass appropriate order under Section 125(3), Cr.P.C. Nithiyanandan and Kuttappan do not oblige the Family Court to ritualistically go on issuing warrants even when convinced that no useful purpose would be served by such issue of warrant.
(3) Family Court can insist that all claimants along with the application for execution under Section 123(3), Cr.P.C. must file an affidavit to confirm default. In such affidavits the claimants must be obliged to state the movable or immovable properties if any against which warrants to attach and sell under Section 421, Cr.P.C. must be issued. If there be no such properties the claimants must be obliged to state that also in such affidavits.
(4) In a case where the claimant swears that there is no such properties and the defaulter does not assert contra and the Court is convinced that there is no such property against which warrants can be issued under Section 421, Cr.P.C. that conclusion and reasons thereof can be recorded and it is not Cr.P.C. that conclusion and reasons thereof can be recorded and it is not then necessary to issue warrants under Section 421, Cr.P.C. ritualistically against such non-existent properties. A sentence under Section 125(3), Cr.P.C. can then be passed.
(5) If there be any movable or immovable properties available to be proceeded against, needless to say attempt must be made to recover the amount by attachment and sale of such properties and only thereafter the mode of enforcement by sentencing the defaulter under Section 125(3), Cr.P.C. need be resorted to. (Paras 25 and 26)
ORDER
R. Basant , J.—Can the pace of execution proceedings before the Family Courts under Section 125, Cr.P.C., be quickened? Should warrants both under Sections 421(1)(a) and 421(1)(b), Cr.P.C., be issued invariably in every case before a sentence of imprisonment is imposed under Section 125(3), Cr.P.C., for recovery of the amount payable? Is it the law that the Courts, even after being satisfied that the defaulter has no movable or immovable property, must ritualistically issue warrants both under Sections 421(1)(a) and 421(1)(b), Cr.P.C., and wait for the return of both warrants before passing an order imposing sentence under Section 125(3), Cr.P.C.? Do the decisions in Nithiyanandan v. Radhamani1 and Kuttappan v. Vijayanma2 insist on inflexible adherence to such a procedure? These questions of relevance have come up for consideration before me in this R.P. (FC).
2. My experience in this jurisdiction shows that there is lot of avoidable unnecessary delay in the expeditious execution of orders under Section 125(3), Cr.P.C. and it is hence that I wanted these aspects to be argued in detail. Both counsel have helped this court to consider these questions. Advocate Mr. K.P. Sudheer was requested to assist this court as amicus curiae. I must mention that the learned counsel has been of great help to this court and has assisted this court with his in-depth research on the subject.
2A. To the vital and crucial facts first. The 1st respondent herein the wife, claimed maintenance under Section 125, Cr.P.C. The claim was staked and the petition was filed on 16.7.2003. The proceedings was numbered as M.C. No. 64/03. Long later on 30.11.2005, an order was passed under Section 125, Cr.P.C. obliging the petitioner herein to pay an amount of Rs. 800 per mensum with effect from 16.7.2003. When one year of the date of the order under which the amounts became due, the respondent/wife filed an application for execution of the order, on 18.8.2006 claiming the amounts due from 16.7.2003 to 16.8.2006.
3. The application for execution was received on file notice was issued. The petitioner was served. He entered appearance through counsel. He requested for time to make payment. He did not make any payment. In these circumstances, at last distress warrant under Section 421(1)(a) was issued initially; but no amounts were recovered. No warrant was issued under Section 421(1)(b), Cr.P.C. On 14.2.2007 a non-bailable warrant was issued. The petitioner was arrested long later and was produced before court on 10.10.2007. He was remanded to custody. He was heard and on 11.10.2007 the impugned order was passed sentencing the petitioner to undergo simple imprisonment for a period of two years. The petitioner challenged that order in this revision petition.
4. Four specific contentions are raised by the learned counsel for the petitioner. First of all it is contended that the petition for execution was filed only on 18.8.2006 and the claim was “for execution of the order of maintenance for the period from 16.7.2003 to 16.8.2006—a period of exceeding one year. The contention is that under Section 125, Cr.P.C., a warrant can be issued only for recovery of maintenance for a period of 12 months.
5. I find no merit in this contention at all. The first proviso to Section 125(3), Cr.P.C. on which reliance is placed reads as follows:
“Provided 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 a due.” (Emphasis supplied)
6. In this case maintenance became due as per the order dated 30.11.2005. Even though the claim was filed on 16.7.2003, the amount became due and payable only when the order under Section 125 was passed on 30.11.2005. The petition for execution was filed on 18.8.2006 i.e., within one year of 30.11.2005, and, in these circumstances, there is no merit in the contention that the first proviso bars t
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