- (1.) By way of this writ petition, the petitioner is challenging the judgment and order of conviction and sentence dated 25.9.2017 passed by the learned Judicial Magistrate First Class (Court No.2), Shirpur in Criminal Misc. Application No. 245 of 2017 and also the judgment and order dated 3.11.2017 passed by the learned Additional Sessions Judge, Dhule in criminal appeal No. 103 of 2017, thereby confirming the period of sentence, as awarded by the learned Magistrate.
(2.) Brief facts giving rise to the present writ petition are as follows:- a) Respondent No.1 is the wife of petitioner. Their marriage was solemnized on 07.05.1981 and respondent No.2 is their daughter born out of the wedlock. After marriage, respondent No.1 resided with the petitioner for one and half year at Nashik. During that period, respondent No.1 was subjected to domestic violence. In the year 1983, the petitioner drove respondent No.1 out of house. In the year 1984, the father and brother of respondent No.1 took her to the house of petitioner, however, the petitioner did not allow her to reside with him and asked for divorce. The petitioner had performed second marriage with one Sunita. Respondent No.1 had issued notice on 3.6.1985 to the petitioner for restitution of conjugal rights. However, the petitioner did not respond to the said notice. The respondent No.1 therefore, had filed criminal misc. application No. 160 of 1985 for grant of maintenance. The said application was allowed. The appeal preferred against the order of Magistrate thereby granting maintenance, before the learned Sessions Judge was also dismissed. So as to avoid payment of maintenance, the petitioner compromised the dispute in the year 1999. Petitioner admitted to reside with respondent No.1 at Shirpur and to pay her Rs.4000/- per month as maintenance. Respondent No.1 gave birth to respondent No.2 on 4.3.2002. b) After some period, the petitioner started to ignore respondent nos. 1 and 2. On 12.7.2009, respondent No.1 and her aunt had been to Dhule for shopping. At that time, the petitioner and two others stopped them on the way and petitioner abused respondent No.1 and demanded divorce. The petitioner also threatened respondent No.1. It is with these premises, respondent Nos. 1 and 2 have filed Criminal M.A. No. 343 of 2009 against the the petitioner under the provisions of The Protection of Women from Domestic Violence Act, 2005 (hereinafter for the sake of brevity referred to as "the Act of 2005"). c) The petitioner appeared in the application and strongly opposed the same by filing say at Exh.9. The petitioner has denied all the allegations made by the respondents. The petitioner has also denied that the respondents were subjected to domestic violence. It was contended by the petitioner that respondent No.1 used to abuse him by saying that her marriage was performed against her wish. Respondent No.1 went to her parents house at her own and did not return and on the contrary, obtained ex-parte maintenance order. The petitioner has also denied paternity of respondent No.2 as he has no concern with her. d) The learned J.M.F.C. (Court No.3), Dhule, after hearing the parties and framing necessary points for consideration, by judgment and order dated 14.8.2015 granted amount of Rs.5000/- per month to respondent Nos. 1 and 2 for the purpose of paying rent towards residence. The learned J.M.F.C. further granted monthly maintenance of Rs.3000/- to the respondent No. 1 and Rs.1000/- per month to respondent No. 2. It was also directed to the petitioner to pay an amount of Rs.50,000/- each to respondent Nos. 1 and 2 within three months from the date of the order. e) Since the petitioner was in arrears of maintenance amount, the respondent Nos.1 and 2 herein filed Cri. M.A. No. 245 of 2017 for grant of arrears of maintenance amount of Rs.1,71,000/-. It was also prayed that the petitioner be directed not to commit domestic violence against respondent Nos. 1 and 2 and punish him in view of Section 32 of the Act of 2005. f) The learned Magistrate, after hearing, by order dated 25.9.2017 allowed the Criminal M.A No. 245 of 2017 and the petitioner was sentenced to suffer S.I. for one year as per Section 125(3) of Cr.P.C. It was directed that he shall be released forthwith if he paid Rs.1,71,000/- to the concerned jail authorities or deposit such amount in the court. g) Being aggrieved by the order dated 25.09.2017 passed by the learned J.M.F.C. Shirpur, in Criminal M.A. No. 245 of 2017, the petitioner preferred criminal appeal No. 103 of 2017 in the Sessions Court at Dhule. The learned Additional Sessions Judge, Dhule by the judgment and order dated 3.11.2017, partly allowed the appeal. The order dated 25.9.2017 passed by the learned Magistrate is modified in terms that the petitioner shall suffer S.I. for a term of 12 months covering the period from 25.4.2016 to 24.4.2017 or until payment of Rs.1,08,000/- if sooner made. The order of imprisonment continues from 25.9.2017. Hence, this writ petition.
(3.) Learned counsel for the petitioner submits that the Magistrate has committed an error in sentencing the petitioner for 12 months of imprisonment by invoking the power under Section 125 (3) of Cr.P.C. and has also erred in reading and applying the said provisions to the present case. The order passed by the learned Magistrate is without jurisdiction. The learned Magistrate has not considered the ratio laid down by the Supreme Court in the case of Shahada Khatoon and others vs. Amjad Ali and others, reported in (1999) 5 SCC 672. Learned counsel submits that the learned Sessions Judge has partly accepted the contention of the petitioner that the amount of arrears of past one year are only recoverable, however, failed to further appreciate the contention of the petitioner that he ought not to have been sentenced to one year imprisonment. Thus, the continuation of the petitioner in custody will amount to illegal detention, since the sentence imposed upon him is in excess of the period provided by law. The learned Additional Sessions Judge, instead of remanding the matter for fresh consideration to the learned Magistrate, has committed an error in deciding the matter and thereby the petitioner has lost the chance to agitate the point of sentence before the trial court. The petitioner is in custody for more than one month. The maximum sentence would be imposed for one month and since the same is already over, he is required to be released forthwith. Thus, now the detention of the petitioner will violate his right to life since he cannot be detained for more than one month. Learned counsel for the petitioner thus submits that the petition may be allowed. Learned counsel for the petitioner, in order to substantiate his submissions, placed reliance on the following judgments:- i) Poongodi and anther vs. Thangavel, reported in (2013) 10 SCC 618; ii) Laljee Yadav vs. State of Bihar and others, reported in (2011) 4 PLJR 248; iii) Shahada Khatoon and others vs. Amjad Ali and others, reported in (1999) 5 SCC 672. iv) Judgment of this court (Nagpur Bench) dated 04.09.2017 in Criminal writ petition No. 264 of 2015 (Mohd. Aarif Pathan s/o Ibraham Pathan vs. State of Maharashtra and others .;