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1953 Supreme(Pat) 150
PATNA HIGH COURT
Misra, J.
Chandrika Singh
Versus
State Of Bihar
Decided On : NOVEMBER 04, 1953
The central legal point established in the judgment is that under Section 386 of the Criminal Procedure Code, it is not permissible for the Magistrate to order the execution of a distress warrant against the joint family property.
Headnote:
Distress Warrant - Joint Family Property - The court set aside the order of a Magistrate who issued a distress warrant for the realization of unpaid fine from the joint family property, holding that it is not permissible under Section 386 of the Criminal Procedure Code.
Fact of the Case:
The petitioner failed to pay a fine and served one month's rigorous imprisonment in default. The Magistrate issued a distress warrant for the realization of the unpaid fine from the joint family property.
Finding of the Court:
The court found that the Magistrate's order to execute the distress warrant against the joint family property was not permissible under Section 386 of the Criminal Procedure Code, based on the authority of a previous case.
Issues: The issue was whether the Magistrate had the authority to order the execution of the distress warrant against the joint family property.
Ratio Decidendi: The court's decision was influenced by the well-settled position that it is not open to the Magistrate to order the execution of the distress warrant against the joint family property under Section 386 of the Criminal Procedure Code.
Final Decision: The court set aside the order of the Magistrate and accepted the reference made by the learned Sessions Judge.
Misra, J.
1. This is a reference by the learned Sessions Judge of Patna, recommending the setting aside of the order of a Magistrate at Barh who issued a distress warrant under the provisions of Section 886, Criminal P. C. for realisation of the amount of fine imposed upon the petitioner which he did not pay.
2. It is alleged that the petitioner served his period of one months rigorous imprisonment which was in default of the payment of fine of Rs. 200/- The property proceeded against under the order of the learned Magistrate belongs to the joint family as appears from the order passed by the learned Magistrate himself quoted in the reference letter, which was to the following effect:
E/R of D.W. received with a report that the warrantee has no assets in his name. He lives with his father who says that the warrantee has no concern with his father. Send back the D. W. saying that the warrantee has got share in the properties of his father. The properties of the family should be attached without further delay. Put up on 12-5-53.
This was on 2-2-1953. On 12-5-1953, the learned Magistrate evidently directed the execution of the warrant against the same properties. It may thus be taken that the property sought to be seized under the distress was the Joint family property belonging to the petitioner and his father. The learned Magistrate seems to take the view that since petitioner had a share in the property it might be proceeded against in execution of distress warrant. The learned Sessions Judge recommends on the authority of the case of - Rajendra Pd. Missir v. Emperor AIR 1932 Pat. 292 (S.B.) (A), that it is not open to the Magistrate while proceeding under Sec.386, Criminal P. C. to order the execution of the distress warrant against the Joint family property. The position being well settled, the order of the learned Magistrate is set aside. The reference is accepted.
