D.N.Jha - (1.) SHIV Vir Singh Sanger has directed this revision against the order, dated 25-4-1980 passed by the Sessions Judge, Lucknow, maintaining the order of forfeiture of surety amount payable by the applicant but reducing the amount from Rs. 2,000/- to Rs. 1,000/-.
(2.) I have heard the -learned counsel for the parties and gone through the record. It appears that Smt. Bhagwan Dei initiated proceedings under Section 125. CrPC against Ganga Ram claiming maintenance. It appears that the Magistrate trying the case had granted maintenance in favour of the applicant Smt. Bhagwan Dei. This order had not been carried out by Ganga Ram. Therefore, Smt. Bhagwan Dei initiated proceedings under sub-section (3) of Section 125 CrPC. The learned Magistrate issued a warrant in Form No. 19 which is required to be issued under Section 125 CrPC. However, it transpires from the record that in pursuance of this warrant no property could be attached as Ganga Ram did not possess any property of his own. The learned Magistrate thereafter issued a warrant of arrest of Ganga Ram in pursuance of which Ganga Ram was arrested and produced before the remand Magistrate on 1st October, 1978. The learned remand Magistrate passed following order: "Balance on furnishing one surety of Rs. 2000/- of an Advocate and personal bond in the like amount." In pursuance of this order, Ganga Ram furnished a personal bond and the applicant who is an advocate furnished a (surety bond to the tune of Rs. 2000/- It may be mentioned that the applicant Sri Sanger is a practising Advocate. Ganga Ram, however, it appears from the order, did not appear before the Court on the date fixed and the bonds executed were directed to be forfeited by the learned Magistrate after notice to the parties concerned. The applicant went up in revision, but the same was rejected. However, the surety amount was reduced from Rs. 2,000/ to Rg. 1,000/-. Learned counsel for the revisionist argued that the order passed by Magistrate directing that cousel should furnish his security as well as forfeiture of the surety bond and realisation of money from the applicant is illegal and without jurisdiction. In support of his contention he has placed reliance on sub-section (3) of Section 125 which reads as; under ; "125 (3). 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 month's allowance remains unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made." Learned counsel maintains that there where two options only available in view of phraseology used in Section 125 (3). In the first instance he should issue a warrant for the realisation of the money in accordance with prescribed Form No. 19 and failing that it was open to the Magistrate to take steps to put into effect a warrant prescribed under Form 18. I have given my anxious considration to the argument advanced by the learned counsel for the revisionist and it appears that there is some substance in the submission. So far as maintenance of wife, children and parents are concerned it is provided in Chapter IX of Criminal Procedure Code, 1973. This is a self contained Chapter. Section 125 provides for an order for maintenance of wives, children and parents. Section 126 provides for procedure to be followed in such proceedings by the Magistrate. Section 127 provides for alteration in allowance. Section 128 provides for enforcement of order of maintenance. Keeping in mind the scheme of Chapter it is clear that there was no warrant of procedure for the Magistrate to issue a warrant of arrest for appearance of Ganga Ram. If the learned Magistrate was satisfied that Ganga Ram had no property from which maintenance allowance granted to Smt. Bhagwan Dei could be realised, then he should have adopted the second course to sentence Ganga Ram to jail by issuing a warrant prescribed under Form 18. In this view of the matter the procedure adopted was without jurisdiction and subsequent proceedings which followed in pursuance of the same were also without jurisdiction. I would like to observe that it was highly indiscrete on the part of the Magistrate to order an Advocate of the Court to be a surety. It appears that the Magistrate was not aware of the professional ethics to which an Advocate of the Court is bound. It was also bounden duty of the Advocate that he should have corrected the Magistrate for the error. However, as observed above the entire proceedings in the case relating to recovery of money fro.n the revisionist has been held to be without jurisdiction and the order deserves to be set aside. I would further like to observe that the Court can proceed to take steps in accordance with Section 125 (3), CrPC and this order shall not cover the order of forfeiture made against Ganga Ram. In view of the observations made above, the revision is allowed. The order passed by the learned Sessions Judge, Lucknow, dated April 25, 1980 is set aside. The surety bond furnished by the revisionist is discharged. Their order will come into force when Ganga Ram is produced before the Court by the applicant Sri Vir Singh Sanger. Revision allowed.;