R.A.Misra - (1.) HEARD the learned counsel for the parties.
(2.) THIS petition has been moved with the prayer that the order dated 4-8- 82 passed by Addl. Chief Judicial Magistrate, Faizabad, in case no. 532 of 1982 directing issue of warrant, be quashed. It so appears that Smt. Shahida Khatoon O. P. No. 1 moved a petition for grant of maintenance allowance under section 125 CrPC and her application was allowed, and directions were issued to her husband Nihal Ahmad, petitioner, to pay maintenance at the rate of Rs. 100/- per month. The petitioner failed to comply with the orders, the O. P. No. 1, therefore, moved an application on 12th of May, 1982 with the allegations that her husband was not complying with the orders of this court and prayed that a warrant be issued requiring him to appear before the court and pay the maintenance allowance. The learned Magistrate on 4-8-82 passed the following order ;- " Vipakshi ke khilaf warrant jari ho. Muqadma 4-9-82 ko pesh ho. Sd./A.CJ.M. Faizabad " It is urged by the learned counsel for the petitioner that the court below was not competent to issue of warrant of arrest against the petitioner. Having heard the learned counsel for both the parties I find myself in full agreement with the contention that the Magistrate was not empowered to issue warrant of arrest on the application of O. P. No. 1 with the allegations that her husband was not paying the maintenance allowance and that a warrant of arrest be issued against him to appear before the court and pay the maintenance allowance.
(3.) SUB-section (3) of Section 125 CrPC provides that if any person so ordered fails 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 remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made. The magistrate is, therefore, empowered to issue a warrant for levying the amount due in the manner provided for levying fines when he is satisfied that the person ordered to pay the maintenance allowance has failed to comply with the order without sufficient cause and is also empowered to sentence the person to imprisonment which may extend to one month if the amount remains unpaid after the execution of the warrant In the instant case the learned Magistrate has issued warrant straightaway on the application of O. P. No. 1. As provided under sub-clause (3) of Section 125 CrPC the Magistrate could issue a warrant for levying the amount due in the manner provided for levying fines after being satisfied that the petitioner has failed to comply with the order without sufficient cause. In the instant case it so appears that no notice has been issued to the petitioner to show cause for not complying with the orders and as I have observed above directions for issue of warrant have been issued strightaway without affording an opportunity to the petitioner to make his submissions and show cause, if any. So in the instant case even the issue of warrant for levying the amount due was not possible and would have been illegal because the Magistrate has not yet arrived at the conclusion that the petitioner has failed to pay the amount without sufficient cause. Thus, there has been clear abuse of the process of the Court and miscarriage of justice in issuing the warrant in hot haste without affording any opportunity to the petitioner to show cause, if any. The petition shall, therefore, be allowed and the order dated 4-8-82, Annexure-2 to the petition, shall be quashed. The petition is consequently allowed. The order dated 4-8-82 passed by the Additional Chief Judicial Magistrate, Faizabad is hereby quashed. It is, however, made clear that the Additional Chief Judicial Magistrate, Faizabad, may proceed afresh according to law on the [application of O. P. No. 1 in the light of the observations made above.;