IN THE HIGH COURT OF JUDICATURE AT PATNA CRIMINAL MISCELLANEOUS NO. 18634 OF 2007 WITH CR.W.J.C. NO. 863 OF 2008 ***** Against the order of Principal Judge, Family Court, Motihari in Maintenance Case No. 26 of 2005. ***** SHAIL SINGH, SON OF LATE BABUNAND SINGH, RESIDENT OF VILLAGE PADUMKER, P.S.-PATAHI, DISTRICT-EAST CHAMPARAN. …..OPPOSITE PARTY/PETITIONER. VERSUS 1. THE STATE OF BIHAR 2. SMT. RAMAWATI DEVI, WIFE OF SHAIL SINGH, RESIDENT OF VILLAGE PADUMKER, P.S. PATAHI, DISTRICT-EAST CHAMPARAN. (IN CR. MISC. NO. 18634 OF 2007) 1. THE STATE OF BIHAR THROUGH THE COLLECTOR, MOTIHARI 2. THE SUPERINTENDENT OF JAIL, MOTIHARI JAIL, DISTRICT-EAST CHAMPARAN. 3. SMT. RAMAWATI DEVI, WIFE OF SHAIL SINGH, RESIDENT OF VILLAGE PADUMKER, P.S. PATAHI, DISTRICT-EAST CHAMPARAN. (IN CR. MISC. NO. 863 OF 2008) …..Respondents/Applicants. APPEARANCE For the Petitioner : Mr. Raj Kishore Prasad Singh, Advocate Mr. Bal Bhushan Choudhary, Advocate For the State : Mr. Ashini Kumar Sinha, APP For the O.P. No. 2 : Mr. Sunil Kumar No. 3, Advocate ***** CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. This writ application has been filed for issuance of writ of Habeas Corpus to release the petitioner from custody as his custody was unwarranted under Section 125 (3) read with Section 421 Code of Criminal Procedure (hereinafter referred to as „the Patna High Court Cr.Misc. No.18634 of 2007 dt.28-09-2011 2 Code‟). 2. When this matter was taken up for hearing by this Court, it has been observed in the order dated 14th of November 2008 that the petitioner would be released from custody on the condition that he pay a sum of Rs. 20,000/- to be deposited by him in two installments in the court of Principal Judge, Family Court, Motihari by 15th of December, 2008 and 15th of January, 2009. In addition a condition was also imposed that the petitioner should continue to pay and deposit a sum of Rs. 1500/- per month from the month of December, 2008 onwards. 3. The challenge of the petitioner that the provisions of Sub-Clause 3 of Section 125 have not been followed in the court below, which issued distress warrant against the petitioner by an order dated 31.01.2007. It has been argued that before issuing distress warrant under Section 125 (3) of the Code, the court is required to follow the procedure by issuing 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 month‟s (months maintenance) remaining unpaid after the execution of warrant to imprisonment subject to the provisions of Section 125 (3) of the Code. 4. Section 421 of the Code provides the manner for levy of fine. Section 421 of the Code envisages that the Court may pass a sentence for recovery of fine in either or both ways, as provided below :- Patna High Court Cr.Misc. No.18634 of 2007 dt.28-09-2011 3 “(a) issue a warrant for the levy of the amount by attachment and sale of any immovable property belonging to the offenders; (b) issue a warrant to the Collector of the district authorizing him to realize the amount of arrear of land revenue from the removal of immovable property.” 5. It is the grievance of the petitioner that the procedure under Section 421 has not been followed. It is further submitted that before ordering for payment of arrears/maintenance, the Court ought to have passed the sentence of imprisonment. Counsel for the petitioner placed reliance upon a Division Bench judgment in the case of Ashok Prasad Vs. State of Bihar [(2000) 1 PLJR 578]. In the said judgment, the Division Bench observes the First Magistrate must be satisfied that without any sufficient cause the person concerned is not paying the maintenance and violating the order of maintenance and then he is required to issue warrant for Levying the amount due in the manner provided for levying fines and after execution of the distress warrant, to ascertain the amount which has remained unpaid, thereafter Court may order for arrest. 6. The orders passed in this case as well as the orders of the Division Bench would indicates that a notice is to be sent to the person who is required to pay maintenance and he has to explain the reason for non-compliance. In the present case, notice was sent to the petitioner, he appeared, and later defaulted. Much less is there any reason disclosed for not paying the amount. In Patna High Court Cr.Misc. No.18634 of 2007 dt.28-09-2011 4 fact, the orders disclosed that after the warrant was issued the petitioner was produced before the Principal Judge, wherein he has stated that he is not willing to pay the arrears of maintenance amount at present. It is not disputed by the petitioner that he was in default and that he had not paid the maintenance amount. In fact, even after release order of this court the petitioner has defaulted in making the payments. The petitioner has filed a supplementary affidavit in this Court on 30.09.2011 in which he has given a chart with respect to the payments made by him from November 2008 to August 2011. The chart speaks for itself, as it shows payments have been made after this case was listed for hearing. 7. As far as habeas corpus petition is concerned, at this stage, there is no reason for this Court to enter into the merits of the order issuing the warrant of arrest and taking the petitioner in custody. This aspect of the matter has become virtually infructuous, as this Court had already granted bail to the petitioner. 8. There is no doubt about the fact that the Court has to proceed in the manner as provided under Section 125 (3) of the Code in case of default of payment of maintenance by issuing notice and asking the person concerned to show cause with respect to the payment of the maintenance amount. In the present case, the petitioner appeared. Thereafter, on 31.01.2007, he defaulted and did not appear in Court. Under those circumstances, the Court Patna High Court Cr.Misc. No.18634 of 2007 dt.28-09-2011 5 issued Warrant of Arrest. Therefore, it cannot be said that the procedure prescribed under Section 125 (3) of the Code was not followed. The Court was within its rights to reject the oral prayer made for time on 31.01.2007. In the case of Ashok Prasad, the warrant was directly issued to the petitioner Ashok Prasad and as such, the Court had held that the procedure for issuance of warrant was not followed. As pointed out, the facts of this case differ to the facts of Ashok Prasad. 9. The petitioner relies heavily on Section 421 of the Code to say that the procedure as provided under Section 421 of the Code was not followed. It is submitted that it was incumbent upon the Court to issue the warrant for attachment of sale of the immovable property belonging to the offender or to issue a warrant to the Collector of the district authorizing him to realize the fine. In the present case, the petitioner had stated that he was not in a position to pay the amount and therefore, he had refused to comply with the orders of the Court. It is provided under Section 125 of the Code that if the offender refused to pay or refused to appear in Court to pursue the matter, warrant of arrest can be issued. What is required is that an opportunity ought to be given to the person concerned to give an explanation for non-compliance of the order of maintenance. In the opinion of this Court, the distress warrant was rightly issued and a distinction must be made in a case, where fine is to be realized and in a case where there is an order for payment of maintenance. The question of realization of fine and the Patna High Court Cr.Misc. No.18634 of 2007 dt.28-09-2011 6 procedure to be followed, is basically where the incumbent appears before the court and places his pleas for non-payment, in that case the procedure may be followed, if there is no chance that the fine can be paid. However, where the section itself provides that if the person concerned does not pay whole or part of each month‟s maintenance or interim maintenance and expense of the proceedings, as the case may be, after the execution of warrant, he may be imprisoned for a term which may extend to one month or until payment is made whichever is sooner, then in cannot be held that the imprisonment was illegal. Each case has to be considered in the facts of the case. 10. It has been argued with some fervor that the petitioner would be entitled to compensation because of the fact that the procedure for issuance of warrant of arrest has not been followed. I do not think that the petitioner would be entitled for compensation in view of the fact that even despite the orders of this Court, maintenance amount was not paid to the wife on a regular basis. The petitioner relies in the case of Md. Abu Hasnain Vs. the State of Bihar in which the writ application was filed for quashing the order of detention of the petitioner in pursuant to the warrant issued by the Certificate Officer, Barh at the behest of the Punjab National Bank. The facts reveal that the notices were issued to the petitioner to remain present before the Certificate Officer. After referring to the facts, the Court came to the conclusion that there was no service report to show that the petitioner has received the Patna High Court Cr.Misc. No.18634 of 2007 dt.28-09-2011 7 notices, the notice was signed by the brother of the petitioner and there was no application filed showing jointness of the petitioner with his brother. Under those circumstances, the Court found that notice was not served on the petitioner in accordance with law. No procedure was followed as established by law in the proceedings against Md. Abu Husnain, and as such, the Court granted compensation. 11. In the present case, the facts are somewhat different. The petitioner was validly served notice, but he did not appear before the Court and thereby abstained from appearing. He did not take any steps to make payments to his wife, and as such, distress warrant was issued against him. At no stage, had the petitioner complied with the orders of the Lower Court as well as this Court until the matter was ripe for hearing, and therefore, the claim of the petitioner that he is entitled to receive compensation is not maintainable and not in accordance with law. Shyam Kishore Sharma, J. :- Patna High Court, Patna Dated the 28th of September, 2011 N.A.F.R. kksinha/-/Anand (Sheema Ali Khan, J.) I agree (Shyam Kishore Sharma, J.)