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HIGH COURT OF CALCUTTA
P. B. Mukharji, A. K. Das
MODDARI BIN - Appellant
Versus
SUKDEO BIN - Respondent
. Of .
Decided On : February 16, 1966
MAINTENANCE - Enforcement of order - Sentence of imprisonment - Whether Magistrate can sentence the defaulter to six months' imprisonment for nine months' default - Interpretation of Section 488 (3), Cr. P. C. - Whether Magistrate's order is bad because it awarded the sentence of rigorous imprisonment and not simple imprisonment - Whether the Magistrate's order is bad because it is an incomplete order in so far as it sentenced the opposite party to six months' rigorous imprisonment without giving an option to make earlier payment and reduce the sentence as provided in Section 488 (3) using the expression or until payment if sooner made.
Fact of the Case:
The opposite party was sentenced to 6 months' rigorous imprisonment for failure to pay maintenance for 9 months and 16 days for the period from 16.9.63 to 30.6.64 without any excuse as he had means to pay. The Magistrate's order was challenged on the ground that it was illegal and improper.
Finding of the Court:
The Magistrate had ample materials to come to the conclusion that the opposite party had means to pay and without any excuse he was trying to avoid payment under the order of maintenance already made. The Magistrate was justified in recording that finding without making any further or additional enquiry about his means. The Magistrate's order is not bad on the ground that it awarded the sentence of rigorous imprisonment and not simple imprisonment. The Magistrate can make an order for six months' imprisonment for nine months' default. The Magistrate's order is not bad because it awarded in the present facts a sentence of six months' imprisonment for nine months' default. The Magistrate had the right to order a sentence of imprisonment. The Magistrate's order is bad because it is an incomplete order in so far as it sentenced the opposite party to six months' rigorous imprisonment without giving an option to make earlier payment and reduce the sentence as provided in Section 488 (3) using the expression or until payment if sooner made.
Issues: 1. Whether the Magistrate had any evidence to show that the opposite party Sukdeo Bin had means to pay, but did not pay and whether he made any enquiry for that purpose on the records of this case? 2. Whether the Magistrate's order under Section 488 (3) of the Code of Criminal Procedure is bad on the ground - (1) that no punishment other than simple imprisonment could be given and therefore the punishment by rigorous imprisonment was bad in law; (2) secondly, that the quantum of punishment was also beyond the permissible limits under the law and that the Magistrate had only a power to award punishment by imprisonment for one month only and not for six months as ordered in this case and (3) thirdly, the order of sentence was bad because the right of the Magistrate to pass the sentence under Section 488 (3), Cr. P. C. could only be exercised at a stage which is described in that sub-section after the execution of the warrant, and that in this case the Magistrate issued the warrant before the execution of such warrant, and (4) lastly, the Magistrate's order is bad because it is an incomplete order in so far as it sentenced the opposite party to six months' rigorous imprisonment without giving an option to make earlier payment and reduce the sentence as provided in Section 488 (3) using the expression or until payment if sooner made.
Ratio Decidendi: 1. The Magistrate had enough on the record to justify the conclusion that the opposite party had means to pay and without any excuse he was trying to avoid payment under the order of maintenance already made. 2. The Magistrate was justified in recording that finding without making any further or additional enquiry about his means. 3. The Magistrate's order is not bad on the ground that it awarded the sentence of rigorous imprisonment and not simple imprisonment. 4. The Magistrate can make an order for six months' imprisonment for nine months' default. 5. The Magistrate's order is not bad because it awarded in the present facts a sentence of six months' imprisonment for nine months' default. 6. The Magistrate had the right to order a sentence of imprisonment. 7. The Magistrate's order is bad because it is an incomplete order in so far as it sentenced the opposite party to six months' rigorous imprisonment without giving an option to make earlier payment and reduce the sentence as provided in Section 488 (3) using the expression or until payment if sooner made.
Final Decision: Reference rejected except with the reservation that the order of the learned Magistrate sentencing the opposite party to six months' rigorous imprisonment without expressly mentioning that the imprisonment would come to an end if payment is made earlier must be read subject to that limitation which is expressly provided by the language of Section 488 (3), Cr. P. C. providing or until payment if sooner made.
( 1 ) THIS is a reference by the learned Additional Sessions Judge, Alipore, under Section 438 read with Section 435 of the Code of Criminal Procedure - challenging the legality and propriety of the order of the Magistrate dated the 7th November, 1964 which is in the following terms: the opposite party is produced under arrest. He is sentenced to R. I. for 6 months for failure to pay maintenance for 9 months and 16 days for the period from 16. 9. 93 to 30. 6. 64 without any excuse as he has means to pay.
( 2 ) THE first point raised in the letter of Reference is whether it could be said that on the facts of this case the Magistrate had any evidence to show that the opposite party Sukdeo Bin had means to pay, but did not pay and whether he made any enquiry for that purpose on the records of this case. The learned Additional Sessions Judge appears to come to the conclusion that the Magistrate was wrong in throwing the opposite party to prison when he was brought under arrest before the Court under a warrant without calling upon him to show cause.
( 3 ) WHETHER the Magistrate had reason to come to the conclusion that the opposite party had no means or not is here a mixed question of fact and law. In our view there was enough on the record to justify the Magistrate's conclusion that the opposite party had means to pay and without any excuse he was trying to avoid payment under the order of maintenance already made. The materials may be summarized here. The opposite party's married wife and their young son were neglected by the opposite party. Upon such refusal and neglect to maintain them the wife brought a petition before the Magistrate for an order of maintenance under Section 488 of the Code of Criminal Procedure. Upon her application an order was made by the learned Magistrate on the 8th April, 1964 allowing them respectively Rs. 30/- per month for the wife and Rs. 15/- per month for the young son aged 9 years, named Laldhari by way of maintenance with effect from 16. 9. 63. The money was not paid. That fact is also clear from the record. On the 25th July, 1964 the wife again complained and filed a petition alleging that the opposite party was a defaulter, had not carried out the order for maintenance and that a sum of Rs. 450/- was due and owing and she prayed for a warrant against the opposite party. Thereupon on the 25th July, 1964 the learned Magistrate issued a distress warrant for a sum of Rs. 432. 50 paise being the total amount of maintenance for the period from 16. 9. 93 to 30. 6. 64 at the rate of Rs. 45/- per month as fixed by the order of maintenance. The distress warrant could not be successfully executed for about 3 months. Nothing was also paid in the meantime by the opposite party under the order of maintenance. Finally on the 3rd October, 1964 the distress warrant was returned on the report that the opposite party had no fixed place of residence. The distress warrant followed Form No. XL, Schedule 5 under Section 386 (1) (a) of the Code of Criminal Procedure stating clearly that the opposite party was a wilful defaulter and that the person through whom the warrant was issued was authorised and required to attach any moveable property belonging to the opposite party. On the 3rd October, 1964, the distress warrant was endorsed by the Sub-Inspector executing the warrant with the report that the opposite party was not living at the address given and that the room always remained under lock and key and there was no particular place for his residence and he finally reported under the above circumstances it is prayed that Civil Court authorities may be directed to deduct the amount from the pay of the opposite party.
( 4 ) ON that report it is clear that the distress warrant by attachment and sale of moveables could not be executed and became infructuous. The execution of the warrant had become unsuccessful. The other procedure under Section 386 (1) (b) of the Code of Criminal Procedure of issu
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