The procedure for enforcing a maintenance order is set out in Section 488 (3) of the Criminal Procedure Code and Section 386 of the Criminal Procedure Code. A warrant for levying the amount due under a maintenance order must be issued to the Collector of the District, who is then responsible for executing the warrant according to the provisions of the Code of Civil Procedure.

( 1 ) THIS Rule raises a question of some importance as respects the manner of enforcement of an order made by a Magistrate under the provisions of Section 488, Criminal P. C.

( 2 ) BY an order dated 7-3-1955 a learned Magistrate of Howrah directed payment of a monthly maintenance allowance of Rs. 30/- by the petitioner to his wife. There was a further order as respects the payment of costs of hearing of the maintenance application which amounted to Rs. 40/ -. On 12-4-1955 the wife in whose favour the order had been made applied for enforcement of the order. Notice by registered post requiring the payment of maintenance allowance of Rs. 30/- as also a further sum of Rs. 40/- by way of costs was issued upon the petitioner but the notice having been refused a distress warrant was directed to issued upon the general manager of the National Iron and Steel Works Ltd. , of which the petitioner is an employee, requiring the manager to attach Rs. 70/- from the pay of the petitioner and to remit the amount thus realised to Court by 5-5-1955. On 11-5-1955 intimation was received from the National Steel and Iron Works Ltd. , that a sum of Rs. 70/- less the money order commission had been sent to the wife of the petitioner. When that intimation was received the learned Magistrate recorded an order that the case had been disposed of. On 15-6-1955 a further application was made by the wife for enforcement of the order of maintenance and the learned Magistrate repeated the process of enforcement of the order and directed issue of distress warrant on the General Manager of the Company to attach a sum of Rs. 60/- from the salary of the petitioner and to remit the same to the wife by money order by a certain date named) In the order. The petitioner thereafter applied to this Court and obtained the present Rule.

( 3 ) MR. Sen Gupta appearing In support of the Rule has urged that the procedure adopted by the learned Magistrate is unknown to law. He has contended that in view of the provisions contained in Section 488, Criminal P. C. , the learned Magistrate completely misdirected himself by directing the Manager of the Company to attach a definite sum of money out of the petitioner's salary and directing its payment to the wife of the petitioner. This contention requires examination.

( 4 ) SECTION 488 (3) provides that if a person ordered to pay a maintenance allowance fails without sufficient cause to make the payment, the Magistrate concerned may, for every breach of the order, issue a warrant for levying the amount due in manner provided for levying fines. The subsection further provides that the Magistrate may, in addition, sentence any such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the war-rant, to imprisonment for a term which may extend to one month or until payment, if sooner made.

( 5 ) THIS section, therefore, contains a clear direction as to the manner in which warrant for levying the amount due has to be issued inasmuch as it clearly provides that the warrant will be issued in manner provided for levying of fines.

( 6 ) SECTION 386 of the Code which deals with warrants for levy of fine provides as follows. 386 (1)"whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may (a) issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender, (b) issue a warrant to the Collector of the District authorising him to realise the amount by execution according to civil process against the moveable or immoveable property, or both of the defaulter: provided that, if the sentence directs that in default of payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unles