Criminal Application No.794 of 1993. Case: Bhagwat Baburao Gaikwad Vs Baburao Bhaiyya Gaikwad. High Court of Bombay (India)
| Case Number | Criminal Application No.794 of 1993 |
| Counsel | For Applicant: Ms. R. M. Sambre and R. R. Joharapurkar, K. S. Gedam, Advs. and For Respondents: Non-applicant No. 1 served. Rajeev Madkholkar, AGP for State, Advs. |
| Judges | M. S. Vaidya, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Sections 125, 421(1)(a); Indian Penal Code (45 of 1860) - Section 22; General Clauses Act (10 of 1897) - Section 3(36) |
| Citation | 1994 CriLJ 2393 |
| Judgement Date | September 28, 1993 |
| Court | High Court of Bombay (India) |
Judgment:
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This is a petition under Section 482 of Code of Criminal Procedure, challenging the orders passed by the Third Additional Sessions Judge, Nagpur, in Criminal Revision Applications Nos. 1550/ 92, 155/92 and one unregistered Criminal Revision Application dated 10-2-1993. The proceeding raises really a vitally important question of law which pertains to the right of recovery of maintenance allowance by a person who is entitled to maintenance allowance under the provisions of Section 125 of Code of Criminal Procedure, 1973 by attachment of the salary of the person who is subjected to order of payment of maintenance allowance.
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Petitioners are the minor sons of respondent No. 1. In Misc. Criminal Application No. 139 / 88 filed by them under Section 125 of the Code of Criminal Procedure, they had applied for maintenance allowance from their father, the respondent No. 1. The matter came to be decided on 20-6-1989. The respondent No.1 had committed defaults in payment of the maintenance allowance. There fore, three consecutive recovery proceedings were filed before the learned Magistrate for recovery of the arrears of maintenance allowance for the periods from 2-11-1988 to 30-6-1989, 14-2-1990 to 31-10-1990 and form 1-11-1990 to 31-12-1990 respectively. Despite the appearance of the respondent in those proceedings, he failed to deposit the amounts in Court or to pay the same to the petitioners. Therefore these applications were filed on behalf of the petitioners for seeking attachment of the salary of the respondent. The said applications were granted and warrants of attachment were accordingly issued. Thereafter, the respondent filed the three revision petitions in question and they were decided on 10-2-1993 by the learned Additional Sessions Judge by a common judgment. All the three revision applications were allowed by the learned Additional Sessions Judge on the ground that future accrual of the salary of the respondent was not 'moveable property' within the meaning of the definition of the term given in the Indian Penal Code and was the mode of recovery of arrears of maintenance allowance was prescribed by Section 125 (3) itself, the provisions contained in Section 421of he Code of Criminal procedure would have to be adhered to for the purposes of recovery of the arrears. In short, it was held that as the mode of recovery was prescribed to be the mode that was prescribed for levying of the fines and as Section 421 (1) (a) of Code of Criminal Procedure provided only for attachment of moveable property, the future salary, which was not a moveable property within the of meaning of the term, could not be attached. The learned Additional Sessions Judge had, in doing so, adopted the reasoning which was assigned in Jagoo Sarju v. Ramkali Jagoo, (1982 Mah LJ 859). On behalf of the petitioners, reliance was placed on Ahmed Pasha v. Wajid Unissa, (1983 Cri LJ 479) in support of the proposition that the future salary could be attached for recovery of arrears. In accordance with the view so taken by the learned Additional Sessions Judge, he had allowed all the three revision petitions and had set aside the orders passed by the learned Magistrate directing the issuance of the warrants for attachment of salary.
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It must be said to the credit of the learned Additional Sessions Judge that in deciding the point in question, he had referred to the latest ruling on the point in Jaggu Sarju v. Ramkali, (1982 Mah LJ 859). In that case, the husband had failed to pay the arrears and the salary of the petitioner before that Court was sought to be attached to the tune of Rs. 5450/ -. This Court held that for recovery of the amount due under an order of maintenance, the Court had to follow the procedure laid down in Section 421 of the Code of Criminal Procedure for recovery of fine. The future salary of a person, which was not yet a tangible moveable property in his possession, could not be said to be the moveable property within the meaning of Section 421 of the Code of Criminal Procedure, because the word 'moveable property' in Clause (a) of Section 421 (1) of the Code of Criminal Procedure, referred to tangible moveable property which could be seized or attached and which must be belonging to the defaulter. Pointing out to the distinction between the use of the same expression in Clauses (a) and (b) of Section 421 (1) of the Code of Criminal Procedure to the effect that under the later clause, a civil process through the Collector was prescribed for the recovery, whereas under the former provision, the remedy was of distinctly different nature. It was observed that though 'moveable property' was not defined in the Code of Criminal Procedure, the definition given in Section 22 of Indian Penal Code could be used by virtue of Section 4(2) (which apparently appears to be a misnomer for Section 2 (y) of the Code of Criminal Procedure). It was held in Jaggu Sarju's case (cited supra), that the wife could not ask the Magistrate to attach future salary of her husband as and when it becomes due, first, because the future salary is not tangible corporeal property available for seizure and secondly, it does not belong to the husband because he could not be said to have earned his future salary. While taking this view, this Court had then relied upon Ali Khan v. Hajrambl, (1981 Cri LJ 682) (Goa) and Baldevi v. Ramnath, (AIR 1955 Raj 61): 1955 Cri LJ 621..
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Both, the counsel for the petitioners as well as the learned A. G.P., contended before this Court that the view taken by this Court earlier in Jaggu's case (1982 Mah LJ 859) (supra) was not a correct view of the law, insamuch as it had overlooked, firstly, the civil nature of a proceeding under Chap-IX of the Code as determined by the Supreme Court in a number of cases. Secondly the definition of 'moveable property'as given in Indian Penal Code, could not be used for the purpose of interpreting a provision contained in Section 125 of the Code of Criminal Procedure or Section 421 (1)(a) thereof. Thirdly the view in question has, in fact, defeated the very purpose for which the proceeding under Section 125 of the Code of Criminal Procedure could be initiated. A number of contentions were urged by both the counsel arguing the case before this Court to which we shall advert immediately.
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At the outset, a reference may be made to the nature of a proceeding which is contemplated by Chapter IX of the Code of Criminal Procedure. In Kuldip Kaur v. Surinder Singh, (1989 Mah LJ 1): 1989 Cri LJ 794 the Supreme Court observed (at p. 798 of Cri LJ):.
"The scheme of the provisions embodied in Chapter IX of Criminal Procedure Code comprising of Sections 125 to 128 which constitutes a complete Code in itself deals with three questions, viz.
(1) adjudication as regards the liability to pay monthly allowance to the neglected wife and child etc.;
(2) the execution of the order on recovery of monthly allowance, and
(3) the mode of execution of an order for monthly allowance. "
Thus, the Supreme Court has abundantly made it clear that the provisions embodied in Chapter IX of the Code of Criminal Procedure comprising of Sections 125 to 128 constitute a complete. Code in itself.
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A reference may then be made to the observations of the Supreme Court in Bhagwan Dutt v. Kamla.Devi, (1975) 2 SCC 386: 1975 Cri LJ 40, in which the Supreme Court dwelt at length on the object of introducing the aforesaid provisions in law. Their Lordships were then dealing with Section 488 of the Code of Criminal Procedure, 1898. They observed (at pp. 42, 43 and 44 of Cri LJ). "Section 488 is not intended to provide for a full and final determination of the status and personal rights of the parties, the jurisdiction conferred by the section on the Magistrate is more in the nature of preventive rather than a remedial jurisdiction; it is certainly not punitive."
The object of these provisions being to prevent vagrancy and destitution, the Magistrate has to find out as to what is required by the wife to maintain a standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family.
"Section 488 is intended to serve a social purpose. It provides a machinery for summary enforcement of the moral obligations of a man towards his wife and children so that they may not, out of sheer destitution, become a hazard to the well-being of orderly society. "
In Nand Lal v. Kanhaiya Lal, (AIR 1960 SC 882): 1960 Cri LJ 1246, the question before their Lordships of the Supreme Court was, whether or not, a Magistrate could hold a preliminary enquiry as to the paternity of a child before issuing the notice to the respondent. Their Lordships were required to examine the nature of the proceeding initiated under Section 488 of the Code of Criminal Procedure and while answering the question in the negative, their Lordships found that as the proceedings were of civil nature, the Criminal Procedure Code did not contemplate any preliminary enquiry. Indeed, it was conceded before their Lordships that Sections 200 to 203 of Code did not have application to a proceeding under Section 488 of the Code. It was thus made clear that merely because the provisions regarding maintenance allowance appeared in the Code of Criminal Procedure, it could hardly be said that the proceeding was of the nature of criminal proceeding and that all the provisions contained in Code of Criminal Procedure were applicable to it. Provisions contained in Sections 202 and 208 of the Code of Criminal Procedure related, in fact, to the proceedings which were to deal with punitive measures and it was held by the Supreme Court that those provisions did not apply to the proceedings for maintenance allowance as the aforesaid proceedings were of civil nature. Again, when a question had arisen before the Supreme Court as to whether or not, a Magistrate dealing with a proceeding under Section 125 of the Code of Criminal...
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