The judgment establishes the importance of proper application of legal provisions, judicial findings before imposing imprisonment, and the distinction between the powers of the Magistrate under different sections of the Code of Criminal Procedure.

1. Seeking compensation to the tune of Rs.1,00,000/- for the alleged illegal detention in prison during the period between 23.05.2005 and 30.05.2005, the petitioner has come up with the present Writ Petition.

2. Theevents leading to his detention are as follows;-

Seeking maintenance, the petitioners wife R.Uma Mary filed M.C.No.4 of 2003, on the file of the learned District Munsif cum Judicial Magistrate, Kodaikanal, under Section 125 (1)(a) of the Code of Criminal Procedure, [hereinafter referred to as "the Code"] and the same was allowed by the learned Judicial Magistrate directing the petitioner herein to pay a sum of Rs.750/- per month. But, the petitioner did not pay the same. Therefore, R.Uma Mary filed Crl.M.P.No.2589 of 2004 before the learned District Munsif cum Judicial Magistrate, Kodaikanal, under Section 128 of the Code for recovery of a sum of Rs.9,750/-, which had fallen in arrears for a total period of 13 months. The petitioner appeared before the learned Judicial Magistrate on 10.01.2005. After few hearings, on 25.04.2005, he paid a sum of Rs.750/-and the case was adjourned to 16.05.2005. On 16.05.2005, he did not make any payment, and therefore, the case was adjourned to 23.05.2005, as a last chance for payment of substantial amount. On 23.05.2005, the petitioner neither appeared before the Court nor he made any payment. His counsel was also not present. Therefore, the learned Judicial Magistrate ordered issuance of "Distraint Warrant" and adjourned the matter to 13.06.2005.

3. Onthe same day, i.e., on 13.06.2005, the learned Judicial Magistrate issued a warrant to the Inspector of Police, Kodaikanal Police Station for arrest of the petitioner. This distress warrant was issued purportedly as per the order dated 23.05.2005 made in Crl.M.P.No.2589 of 2004. In execution of the said warrant, the petitioner was arrested by the police and produced before the learned Judicial Magistrate, on the same day. The learned Judicial Magistrate issued a "warrant of imprisonment on failure to pay maintenance" and sent him to the Sub-Jail, Kodaikanal. Accordingly, he was detained in Sub-Jail from 23.05.2005 onwards.

4. Strangely, the petitioner filed a petition, through his counsel, for bail under Section 436 of the Code in Crl.M.P.No.1150 of 2005. On the said petition, the learned Judicial Magistrate passed the following order.

"Offence bailable. Hence, bail granted on his executing a bond for Rs.3,000/- with two sureties and likesum."

5. The said order came to be passed on 30.05.2005. Accordingly, the petitioner executed a personal bond as well as sureties and in pursuance of the same, he was released on bail on 30.05.2005. Thus, he was in jail for eight days. According to the petitioner, the said detention in prison for eight days is illegal and the same has infringed his fundamental rights guaranteed under Articles 19 and 21 of the Constitution of India, and therefore, he is entitled for compensation as prayed for by him in the Writ Petition.

6. The second respondent has filed a counter, wherein he has stated that he obeyed the order of the learned Judicial Magistrate and executed the warrant, and therefore, he is not at fault in any manner. The first respondent has not filed any counter.

7. I have heard the learned counsel appearing for the petitioner, learned Government Advocate appearing for the respondents and I have also perused the records carefully including the original records sent for from the learned Judicial Magistrate.

8. At the outset, I have to state that it is distressing to note that more than one illegality has been committed by the learned Judicial Magistrate. Indisputably, the petition for execution was filed only under Section 128 of the Code by the wife of the petitioner and not under Section 125(3) of the Code. It is needless to point out that there is much difference between the power of the Judicial Magistrate under Section 125(3) and 128 of the Code. At this juncture, it is wort