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HIGH COURT OF CALCUTTA
P. B. Mukharji, A. K. Das
MODDARI BIN - Appellant
Versus
SUKDEO BIN - Respondent
Reference 16 Of 1965
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 is required to issue a notice to show cause before issuing a warrant - Whether Magistrate is required to hold an enquiry before issuing a warrant.
Fact of the Case:
The opposite party, Sukdeo Bin, was sentenced to six months' rigorous imprisonment for failure to pay maintenance for nine months. The Magistrate had issued a distress warrant for the recovery of the maintenance amount, but it could not be executed. The Magistrate then issued a warrant of arrest against the opposite party, and he was sentenced to imprisonment under Section 488 (3) of the Code of Criminal Procedure.
Finding of the Court:
The Court held that the Magistrate was justified in sentencing the opposite party to six months' rigorous imprisonment for nine months' default. The Court interpreted Section 488 (3) of the Code of Criminal Procedure to mean that the maximum imprisonment that can be awarded is one month for each month's default, subject to a maximum of 12 months. The Court also held that the Magistrate is not required to issue a notice to show cause or to hold an enquiry before issuing a warrant under Section 488 (3) of the Code of Criminal Procedure.
Issues: 1. Whether the Magistrate can sentence the defaulter to six months' imprisonment for nine months' default? 2. Whether the Magistrate is required to issue a notice to show cause before issuing a warrant? 3. Whether the Magistrate is required to hold an enquiry before issuing a warrant?
Ratio Decidendi: 1. The Court interpreted Section 488 (3) of the Code of Criminal Procedure to mean that the maximum imprisonment that can be awarded is one month for each month's default, subject to a maximum of 12 months. The Court held that the Magistrate was justified in sentencing the opposite party to six months' rigorous imprisonment for nine months' default. 2. The Court held that the Magistrate is not required to issue a notice to show cause before issuing a warrant under Section 488 (3) of the Code of Criminal Procedure. The Court reasoned that the section does not expressly require a notice to show cause, and that the Magistrate must have evidence to satisfy himself that a warrant should be issued. 3. The Court held that the Magistrate is not required to hold an enquiry before issuing a warrant under Section 488 (3) of the Code of Criminal Procedure. The Court reasoned that the section does not expressly require an enquiry, and that the Magistrate can be satisfied about the sufficiency of the cause shown by the husband either by formal enquiry or on the materials before him in the facts of the case.
Final Decision: The Court rejected the reference of the learned Additional Sessions Judge, 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 16-9-63 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 Suk-deo 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 he Magistrate had reason t 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 summarised here. The opposite party's married wife and their young son were neglected by the opposite parly. Upon such refusal and neglect to maintain them the wife brought a petilion before the Magistrate for an order of maintenance under Section 488 of the Code of the Criminal Procedure. Upon her application an order was marie by the learned Magistrate on the 8th April, 1964 allowing them respectively Rupees 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, 1064 the learned Magistrate issued a distress warrant for a sum of Rs 432. 50 np. being the total amount of maintenance for the period from 16-9-63 to 30-6-64 at the rate of Rupees 45/- per month as fixed by the order of main-tence The distress warrant could not be successfully executed for about three 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 anv movable property belonging to Ihe opposite party. On the 3rd October. 1964. Ihe 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 issuing a w
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