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2011(2) Crimes 139 (Mad.)
MADRAS HIGH COURT
S. Nagamuthu, J.
S.T. Prabhakar —Petitioner
versus
Secretary to Government, Home Department, fort St. George and Ors. —Respondents
W.P. (MD) No. 11372 of 2005 & W.P.M.P. No. 12096 of 2005
Decided on 19.11.2010
Held: Unfortunately, from the records, it could also be seen that on the very same day, instead of issuing a warrant for recovery of fine [Form No.44], the learned Judicial Magistrate issued a distress warrant as per Form No.18 in the Schedule, which is the warrant of imprisonment on failure to pay maintenance. It is needless to point out that such a warrant of imprisonment could be issued only in a Petition filed under Section 125(3) of the Code, that too, on getting satisfied that the defaulter had failed to comply with the order without sufficient cause. For any reason, if the defaulter is able to show sufficient cause, then the Magistrate shall not impose sentence of imprisonment. Under Section 125(3) of the Code, the Magistrate has got power to issue warrant for levy of fine [Form No.44] and in addition to that, he may impose a sentence of imprisonment and the said term shall not extend beyond 12 months’ period. While deciding as to whether sentence of imprisonment can be imposed or not and while considering the Petition under Section 125(3) of the Code, the Magistrate is required to give an adjudication as to whether failure to comply with the order is without sufficient cause or not. In the absence of any such finding, the Magistrate shall not impose sentence of imprisonment.
In this case, the learned Judicial Magistrate, first of all, did not deal with a Petition filed under Section 125(3) of the Code, as the one, which was dealt with by him, was only under Section 128 of the Code. Secondly, there is no finding that there was no sufficient cause for the Petitioner, which resulted in the failure to pay the amount. Thirdly, the order issued by him on 23.05.2005 was only for issuance of a “Distraint Warrant” and not for “Distress Warrant”. Therefore, it is crystal clear that the issuance of “Distress Warrant” for the arrest of the Petitioner by the learned Judicial Magistrate. (Paras 11 and 12)
As I have already stated, when there is no judicial finding by the learned Judicial Magistrate that the failure to pay the amount was without sufficient cause and without there being any order imposing imprisonment, it was illegal on the part of the Magistrate to issue the warrant of imprisonment in Form No.18 and to order him to be detained in prison. A perusal of the warrant issued would go to show that the learned Judicial Magistrate had not even mentioned the period of imprisonment, which the Petitioner was to undergo. The warrant authorized the detention of the Petitioner in prison for Ii an indefinite period. But, for his release on bail, he would have been detained in prison for years together, thereby his fundamental rights would have been very seriously infringed. This is yet another illegality committed by the learned Judicial Magistrate. (Para 14)
(ii) Criminal Procedure Code, 1973—Section 125—Petitioner husband was detained in prison by order of Magistrate when the wife filed execution for recovery of arrears of maintenance—Order passed by Magistrate was illegality as having proceeded under Section 128 Cr.P.C., detention of petitioner in terms of Section 125(3) Cr.P.C. was by way of illegal order—Claim for compensation by petitioner—Petitioner could resort to has remedy under law for purpose of claiming damages.
Result: Petition closed
JUDGMENT
S. Nagamuthu, J.—Seeking compensation to the tune of Rs.1,00,000/- for the alleged illegal detention in prison during the period between 23.05.2005 and 30.05.2005, the Petitioner has come up with the present Writ Petition.
2. The events leading to his detention are as follows:
Seeking maintenance, the Petitioner’s wife R. Uma Mary filed M.C. No.4 of 2003, on the file of the learned District Munsif cum Judicial Magistrate, Kodaikanal, under Section 125(1)(a) of the Code of Criminal Procedure, [hereinafter referred to as “the Code”] and the same was allowed by the learned Judicial Magistrate directing the Petitioner herein to pay a sum of Rs.750 per month. But, the Petitioner did not pay the same. Therefore, R. Uma Mary filed Crl. M.P. No.2589 of 2004 before the learned District Munsif cum Judicial Magistrate, Kodaikanal, under Section 128 of the Code for recovery of a sum of Rs.9,750/-, which had fallen in arrears for a total period of 13 months. The Petitioner appeared before the learned Judicial Magistrate on 10.01.2005. After few hearings, on 25.04.2005, he paid a sum of Rs . 750 and the case was adjourned to 16.05.2005. On 16.05.2005, he did not make any payment, and therefore, the case was adjourned to 23.05.2005, as a last chance for payment of substantial amount. On 23.05.2005, the Petitioner neither appeared before the Court nor he made any payment. His Counsel was also not present. Therefore, the learned Judicial Magistrate ordered issuance of “Distraint Warrant” and adjourned the matter to 13.06.2005.
3. On the same day, i.e., on 23.05.2005, the learned Judicial Magistrate issued a warrant to the Inspector of Police, Kodaikanal Police Station for arrest of the Petitioner. This distress warrant was issued purportedly as per the order dated 23.05.2005 made in Crl. M.P. No.2589 of 2004. In execution of the said warrant, the Petitioner was arrested by the police and produced before the learned Judicial Magistrate, on the same day. The learned Judicial Magistrate issued a “warrant of imprisonment on failure to pay maintenance” and sent him to the Sub-Jail, Kodaikanal. Accordingly, he was detained in Sub-Jail from 23.05.2005 onwards.
4. Strangely, the Petitioner filed a Petition, through his Counsel, for bail under Section 436 of the Code in Crl. M.P. No.1150 of 2005. On the said Petition, the learned Judicial Magistrate passed the following order:
“Offence bailable. Hence, bail granted on his executing a bond for Rs.3,000/- with two sureties and like sum.”
5. The said order came to be passed on 30.05.2005. Accordingly, the Petitioner executed a personal bond as well as sureties and in pursuance of the same, he was released on bail on 30.05.2005. Thus, he was in jail for eight days. According to the Petitioner, the said detention in. prison for eight days is Illegal and the same has infringed his fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India, and therefore, he is entitled for compensation as prayed for by him in the Writ Petition.
6. The Second Respondent has filed a Counter, wherein he has stated that he obeyed the order of the learned Judicial Magistrate and executed the warrant, and therefore, he is not at fault in any manner. The First Respondent has not filed any Counter.
7. I have heard the learned Counsel appearing for the Petitioner, learned Government Advocate appearing for the Respondents and I have also perused the records carefully including the original records sent for from the learned Judicial Magistrate.
8. At the outset, I have to state that it is distressing to note that more than one illegality has been committed by the learned Judicial Magistrate. Indisputably, the Petition for execution was filed only under Section 128 of the Code by the wife of the Petitioner and not under Section 125(3) of the Code. It is needless to point out that there is much difference between the power of the Judicial Magistrate under Section 125(3) and 128 of the Code. At this junct
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