The court ruled that while notice before issuing a distress warrant is not mandatory, it is permissible to ensure fair consideration of the defaulter's circumstances regarding maintenance arrears.

ORDER

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (` BNSS ’ for short), seeking the relief to quash the impugned order of issuing notice to the 2^nd respondent dated 23.01.2024, Annexure A3, by the learned Judicial Magistrate of First Class, Njarakkal, in CMP.No.116/2024 in MC.No.67/2021.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents and the legal provisions on the point.

3. Short facts: The petitioner herein, who is the petitioner in M.C.No.67/2021 on the files of Judicial Magistrate of First Class, Njarakkal, filed CMP.No.116/2024, Crl.M.C.No.9373/2024 3 2024:KER:92623 Annexure 2, in the above M.C to issue distress warrant against the respondent and to recover and disburse the monthly maintenance and rent covered by the order in M.C.No.67/2021 dated 03.12.2022, produced as Annexure 1. According to the learned counsel for the petitioner, when Annexure 2 was filed, the learned Magistrate ordered notice to the respondent and the said order is Annexure 3 dated 27.08.2024. The point canvassed by the learned counsel for the petitioner is that there is no procedure envisaged either under Code of Criminal Procedure (` Cr.P.C ' for short) or under the Protection of Women from Domestic Violence Act, 2005 (`DV Act' for short) to issue notice to the respondent before issuing distress warrant. According to the learned counsel for the petitioner, if an order of maintenance granted under the D.V Act has been violated, the procedure prescribed under Section 125 (3) of Cr.P.C r/w 421 of Cr.P.C shall be followed. Section 421 doesn't mandate or provide issuance of notice to the respondent before ordering distress warrant. Therefore, the procedure adopted by the learned Magistrate is wrong. Accordingly, he pressed for setting aside Annexure 3 order with direction to the learned Magistrate to proceed with Annexure 2 by issuing distress warrant without notice to the respondent.

4. The learned counsel for the petitioner has placed decision of this Court reported in [2011 (3) KHC 931] ,Abdulrahiman v.Crl.M.C.No.9373/2024 4 2024:KER:92623 State of Kerala & Ors., where this Court considered a case where a convict, who is undergoing sentence, imposed on default of payment of maintenance ordered under Section 125 of the Code of Criminal Procedure, has sent a petition from jail challenging the punishment imposed against him on two applications moved by the claimants/respondents, his wife and children by the Family Court, Kasaragod. The said petition has been numbered as a revision petition. Court was pleaded to appoint an amicus curiae to assist the Court as the petitioner was in jail. Going through the petition sent by the convict from the prison Court found that the contentions of the petitioner have to be examined on merits to prevent miscarriage of justice. Court examined the provisions of the Code of Criminal Procedure and held that sentence of imprisonment can be imposed against the defaulter only after issuing a distraint warrant for levying the amount due as arrears of maintenance in the manner provided for realisation of fine. Court has to give sufficient cause if it has to avoid issuance of distraint warrant. In the case at hand, no distraint warrant has been issued. This Court held in the above case that an accused had a right to fair trial but also that he got a fundamental right for speedy trial of his case because a speedy trial is an integral and Crl.M.C.No.9373/2024 5 2024:KER:9262