A warrant of arrest issued under section 87 of the Cr. P.C. for procuring the appearance of a party who fails to appear before the court in spite of having received a notice issued by that court directing him to appear is not an order passed under section 125(3) of the Cr. P.C.

Malay Kumar Basu, J.

This revisional application is directed against the order dated 8th March, 2001 passed by the learned Sessions Judge, Bankura in Criminal Revision No. 1 of 2001. That revisional application arose out of the order dated 21st October, 2000 passed by the learned C.J.M., Bankura in Misc. Execution Case No. 120 of 1999 which arose out of Misc. Case No. 152 of 1993 under section 125(3) of the Cr. P.C. The relevant facts in short are as follows:-

The present petitioner, Subhamoy Chatterjee, admittedly married the opposite party, Lity Chatterjee, according to Hindu rites. The opposite party-wife filed a petition for maintenance under section 125 of the Cr. P.C. before the learned C.J.M., Bankura praying for an order awarding maintenance in her favour and the learned C.J.M. passed an interim order granting interim maintenance at the rate of Rs. 400/- per month with effect from the date of filing of the petition payable by the husband-petitioner to the opposite party-wife. But according to the opposite party-wife, nothing was paid by the petitioner-husband by way of maintenance in compliance with the above order of the court and hence she filed the misc. execution case under section 125(3) of the Cr. P.C. to realise the arrear amount of Rs. 18,800/-. The learned C.J.M. after admitting the petition passed an order issuing notice upon the husband fixing 3rd September, 1999 for service return and payment. On the date fixed, no service return of the notice was received and accordingly another date, i.e., 11th October, 1999 was fixed for the same purpose. On that date fixed. i.e., 11th October, 1999 it was found by the court that service return of the notice along with the acknowledgement due card was received after due service. But the opposite party husband did not turn up in spite of the fact that he had received the notice himself and under such circumstances the learned C.J.M. issued warrant of arrest against him fixing 30th November, 1999 for E.R.

2. Being aggrieved by that order, the husband has preferred the present revisional application challenging the said order as illegal and erroneous and hence unsustainable.

3. It has been argued by Mr. Mukherjee, learned advocate for the petitioner-husband before me, that the learned Magistrate was not competent to issue a warrant of arrest on the very first day. In view of the provisions of section 125(3) of the Cr. P.C. no warrant shall be issued for recovery of any amount due under this section unless an application has been made to the court to levy such amount within the period of one year from the date on which it became due. According to Mr. Mukherjee, warrant has to be issued as per the procedure prescribed under section 421 of the Cr. P.C. levying fines and since by virtue of the impugned order the warrant of arrest has been issued not in consonance with the said prescribed procedure, it must be deemed to be an illegal order and should be set aside.

4. But I am not impressed by this argument. The warrant which is referred to under section 125(3) of the Cr. P.C. does not relate to any warrant of arrest like the present one. The said section refers to warrant of distress which is to be issued following the procedure laid down under section 421 of the Cr. P.C. for the purpose of levying the fines imposed by a court on a convict. Here by the impugned order a simple warrant of arrest has been issued which has no connection with anything like distress warrant. This warrant of arrest is only a process by means of which the court has tried to procure the appearance of a party and nothing more. In order to issue such a warrant the question of following the rules provided under section 125(3) of the Cr. P.C. does not arise. In order to be satisfied about the justifiability of issuance of such a warrant of arrest against the petitioner I have examined the order of the learned court below. It appears therefrom that the court did not issue such a warrant of arrest on the ve