V. GOPALASWAMY, J, J.

( 1 ) THIS revision is preferred against the order dated 10. 12. 1986 of the learned S. D. J. M. , Parlakhemundi, in Misc. Case No. 94 of 1985, a proceeding under Section 125, Cr. P. C. , sentencing the present petitioner-husband to undergo simple Imprisonment tin 9. 12. 1987 or until payment of maintenance dues to his wife (the present opposite party), in pursuance of his order dated 3. 9. 1985.

( 2 ) THE learned counsel for the petitioner contended that the impugned order of the learned Magistrate is in violation of the provisions of Section 125 (3), Cr. P. C. , and assailed it on the following two grounds: (a) First, that the sentence of imprisonment could not have been passed without due execution of the distress warrant against the petitioner. (2) Secondly, that under Section 125 (3), Cr. P. C. the maximum sentence that the Magistrate could have passed is only for a period of one month.

( 3 ) THE learned counsel for the opposite party-wife, Mr. S. K. Sahoo, relying on the decisions, which are considered below contended that the grounds urged by the learned counsel for the petitioner are not valid grounds.

( 4 ) NOW I proceed to consider the validity of the petitioner's contention that the execution of the warrant is a condition precedent for sentencing the defaulting husband to imprisonment. The provision of Section 488 (3) of the Code of Criminal Procedure, 1898 corresponds to Section 125 (3) of the Code of Criminal Procedure of 1973. While considering the scope of Section 488 (3) of the old Code in Karsan Ramji Chawda v. State of Bombay, their Lordships of the Bombay High Court observed thus:therefore, this sub-section confers upon the Magistrate two independent powers; one to issue a warrant which has to be executed in the manner laid down in the sub-section and the other to sentence the person also in the manner laid down in the sub-section. The fallacy underlying Mr. Kotwals argument is that the sentence follows upon the issue of a warrant. That is not the section. The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant, or in other words, the issue of a warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant

( 5 ) P. Alauliah v. Momunisa Begum is a case where the wife filed an application under section Cr125 (3), Cr. P. C. for issue of a warrant for levy of maintenance due as fine and the respondent in response to the notice issued, appeared before the Magistrate and admitted that the amount of maintenance had not been paid and he had also no representation to make. Under these circumstances his Lordship of the Andhra Pradesh High Court held that no useful purpose would be served by issuing a warrant and therefore, the order of the Magistrate directing arrest of husband and sentencing him to imprisonment without first issuing a warrant to levy the amount due as fine cannot be said to be illegal.

( 6 ) BHURE v. Gomati Bai, is another case where the Madhya Pradesh High Court held that an order under Section 125 (3) for imprisonment of husband for his negligence to pay maintenance to his wife can be passed without at first issuing the warrant for levying the amount due.

( 7 ) RELYING on the above decisions, I find that sub-section (3) of Section 125, Cr. P. C. confers two independent powers: (1) to issue a warrant; and (2) to sentence the person also. So. I hold that the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the petitioner-husband. So the contention of the learned counsel for the petitioner that the Magistrate had no power to sentence the petitioner without due execution of the distress warrant is without any substance.

( 8 ) NOW I proceed to consider the other point of law raised by the learned counsel for the petitioner, whether a person, who has defaulted in the payment of maintenance ordered under Section 125, Cr. P. C. , can be Sentenced