A conditional warrant of arrest for non-compliance with an order for maintenance can be issued without issuing a notice to the defaulter if the defaulter does not own any property that can be attached and sold for the recovery of the maintenance amount.

Harmohinder Kaur Sandhu, J.

1. This is a husbands petition under Section 482 of the Code of Criminal Procedure for quashing the orders dated November 26, 1990 and dated January 14, 1991 passed by Judicial Magistrate, Ist Class, Patiala, Annexures P. 1 and P. 2 and the proceedings consequent thereto.

2. The facts of the case are that the respondent-wife filed an application under section 125 of the Code of Criminal Procedure for grant of maintenance and vide an ex-parte order dated 23-8-1989 she was awarded maintenance at the rate of Rs. (SIC) per month. She filed an application to enforce the order, whereupon Judicial Magistrate Ist Class, Patiala passed the order Annexure P. 1, According to this order a warrant of attachment of the property of the petitioner-husband was to be issued and the respondent-wife was directed to file warrant fee and list of property. The warrant was to be executed by 14th January, 1991. On 8-1-91 the wife moved an application supported by an affidavit that the petitioner did not own any movable or immovable property; as he had disposed of the same during the pendency of the application under section 125 of the Code of Criminal Procedure. The Magistrate then passed an order issuing conditional warrant of arrest of the petitioner for the recovery of the maintenance amount. This order is Annexure P2. The petitioner alleged that before the passing of the impugned orders no notice was issued to him nor he was given any opportunity of being heard. Before a warrant for his arrest was to be issued it was necessary that he should have been given an opportunity of being heard. The orders Annexure P. 1 and P. 7 were thus patently illegal and were passed without application of mind.

3. The learned counsel for the petitioner Shri Bhupinder Singh submitted that the impugned orders are without jurisdiction and thoroughly illegal in as much as the same are in flagrant violation of the provisions of Sub-section 3 of Section 125 of the Criminal Procedure Code and the learned Magistrate had even denied natural justice to the petitioner by not issuing a notice, before issuing the warrant for his arrest. He contended that a conditional warrant for the arrest of the petitioner could not be issued unless a resort was first made to recover the amount by the attachment and sale of the property belonging to the petitioner. It was urged on behalf of the respondent that conditional warrant for arrest was not issued by the Magistrate in the first instance and the first order was regarding the attachment of the property of the petitioner. The wife was directed to furnish a list of the property, which was to be attached. She was unable to provide a list as during the pendency of the application for maintenance, the petitioner had disposed of his property to avoid payment of maintenance, if granted. This contention of the wife was supported by an affidavit and the court placing reliance on the solemn affirmation of the wife ordered that a conditional warrant be issued.

4. Under Section 125(3) of the Code of Criminal Procedure if any person so ordered falls without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person for the whole or any part of each months allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to our month or until payment if sooner made.

5. Section 421 of the Criminal Procedure Code provides the following modes for recovery of fine :-

a) Issuance of a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender.

b) Issuance of a warrant to the Collector of the District authorising him to realise the amount as arrears of land revenue from the movable or immovable property or both of the defaulter.

6. It was contended on behalf of the petitioner that un