The necessity of a warrant of attachment of property as a condition precedent to the issue of a warrant of imprisonment under Section 125, Cr. P.C.

1. This revision petition is filed against the order of the learned Judicial Magistrate, 1st Class, Hoshiarpur in Cr. Application RBT No. 21 of 1998-99 dated 20-11-1999.

2. The 1st. respondent is the wife of the petitioner while the respondents 2 to 4 are his children. They obtained an order of maintenance from the Trial Court against the petitioner under Section 125, Cr. P.C.Part of the maintenance amount remains unpaid. Therefore, the respondents filed an application for recovery of the said amount of maintenance by way of arrest of the petitioner. The learned Judicial Magistrate 1st Class issued the conditional warrant of arrest of the petitioner. The petitioner, therefore, filed this criminal revision petition.

3. The only contention of the learned counsel for the petitioner is that the warrants of arrest are liable to be set aside since the Magistrate has not taken steps for proceedings against the property of the petitioner and, therefore, the warrants of arrest are contrary to the provisions, of sub-section (3) of Section 125, Cr. P.C.It may straightway be mentioned before examining the legal position that the petitioner has not shown either before the learned Judicial Magistrate or in this revision petition that he possesses any property. There is no averment in the grounds of revision or in the affidavit filed by him that he possesses any property. No details of the property possessed by the petitioner have been given. It is therefore to be taken that the petitioner does not possess any property. When he does not possess any property, there is no question of issuing any warrant of attachment of his property as required under Section 21, Cr. P.C.

4. The learned counsel for the petitioner placed reliance on a decision of this Court in Raj Kumar V/s. Smt. Krishna, (1984) 2 Rec Cr R 434 and contended that the issue of warrant of attachment of property is a condition precedent to the issue of a warrant of imprisonment. It is no doubt true that Section 125(2) stipulates that the person who is liable to pay maintenance may be sentenced for the whole or any part of each months allowance remaining unpaid after the execution of the warrant. When the petitioner has not shown that he possesses any property which can be attached and sold in execution for recovery of the amount of maintenance, then it is not necessary in my view to order attachment.

5. Admittedly, the petitioner did not appear before the learned Magistrate in response to the notice issued to him and this objection has not been taken by him in the trial Court. Even in this Court, as already observed, nothing has been shown that the petitioner possesses any property which can be attached and sold. In these circumstances, no useful purpose would be served by issuing a wrrant of attachment. Therefore, it cannot be said that the order of the learned Judicial Magistrate is illegal.

6. In this view of the matter I do not find any ground warranting interference with the order of the learned Judicial Magistrate. The revision petition is, therefore, dismissed.