AMULYA KUMAR NANDI, J. - (1.) This is a reference by a learned single Judge of this Court. A simple question that falls for our determination is as to whether a Judicial Magistrate can issue a process to attach the salary of a defaulting husband who by an order u /S. 125 of the Code of Criminal Procedure, 1973 ('Code' for short) has been directed to pay a monthly allowance for the maintenance of his wife. The learned Judge has differed from the view of another learned single Judge expressed in Gora Chand v. Sita Rani reported in 1988 Calcutta Cri. L.R. 12 to answer the question in the affirmative. In coming to his conclusion the learned Judge has observed that a maintenance proceeding contained in Chapter IX of the Code is essentially a civil proceeding and therefore the provision contained in Section 60 of the Code of Civil Procedure shall be attracted. In support of the finding that it is a civil proceeding, reliance has been placed upon a Supreme Court decision in Jagir Kaur v. Jaswant Singh, AIR 1963 SC 1521: (1963 (2) Cri LJ 413). Federal Court's observation in the Punjab Province v. Tara Chand reported in AIR 1947 FC 23 has been quoted to find that salary before or after it is payable can be attached. It is equated with debt.
(2.) We are in respectful agreement with the Supreme Court that the maintenance proceeding is in the nature of a civil proceeding. This point is firmly settled not only by the judgment in Jagir Kaur's case (supra) but also by an earlier decision in Nandlal v. Kanhaiya reported in AIR 1960 SC 882: (1960 Cri LJ 1246). But those judgments, in our opinion cannot be interpreted to mean that all the provisions of the Civil Procedure Code will be applicable. Supreme Court meant to say that the opposite party is neither an accused nor the proceeding is initiated on complaint as envisaged under the Code of Criminal Procedure. This proceeding is taken to a civil proceeding. It does not warrant a departure from the express provision of execution as contained in the Criminal Procedure Code nor can the Court devise a procedure in purported exercise of inherent power. It is, therefore, difficult to interpret the judgment in The Punjab Province v. Tara Chand (supra) warranting a conclusion that the salary is a debt and therefore attachable for maintenance of the wife pursuant to the provision under Section 60 of the Code of Civil Procedure. The express provision contained in the Code has to be followed. Privy Council said in Nazir Ahmed v. Emperor, (1936) 63 Ind App 372: (1936) 37 Cri LJ 897: AIR 1936 PC 253 (1) that where power is given to do a certain thing in a certain way the thing must be done in that way or not at all, other methods of performance are necessarily forbidden. This view has been consistently accepted by the Supreme Court also of maintenance is contained in Section 125 (3) of the Code (corresponding to Section 488 (3) of the old Code) which, so far as it is relevant for our present purpose, reads as under: - "If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may for every breach of order, issue a warrant for levying the amount due in the manner provided for levying fines (emphasis supplied), 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."
(3.) Section 421 of the Code, corresponding to Section 386 of the old Code, provides for realisation of fine. The relevant provisions of the two Codes are as follows: - Section 421: Warrant for levy of fine - (1) When an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may - (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender., (b) issue a warrant to the Collector of thedistrict authorising him to realize the amount as arrears of land revenue (by execution according to civil process against) from the movable or immovable property, or both, of the defaulter. (2) ...................................... (3) When the Court issue a warrant to the Collector under clause (b) of sub-section (1) the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue (emphasis supplied), as if such warrant were a certificate used under such law. ;