- (1.) PURAN Singh has filed this petition under Section 402 read with Section 401, Code of Criminal Procedure for setting aside the order dated 11. 10. 1993 passed by Sub Divisional Magistrate, Fatehabad, by which the petitioner was ordered to be sent to civil prison for six months, i. e. , from 27. 9. 1993 to 26. 3. 1994.
(2.) BRIEFLY stated, the facts of the case are : The respondent-Surjit Kaur filed a petition under Section 125 of the Code of Criminal Procedure (hereinafter referred to as the Code) for maintenance and, during the pendency of that petition, the learned Counsel for the petitioner stated on 17. 10. 1992 that he had no instructions from the petitioner and the petition for maintenance was allowed on 14. 11. 1992, by which a sum of Rs. 350/- per month was allowed to the respondent from the date of the petition for maintenance. The respondent filed an application under Section 125 (3) of the Code for recovery of an amount of Rs. 14,000/- from the petitioner for the period from 12. 8. 1989 to 12. 12. 1992. On the respondents petition under Section 125 (3) of the Code, warrants of arrest were issued against the petitioner and the petitioner was arrested and produced before the Sub Divisional Magistrate on 27. 9. 1993 and the learned Sub Divisional Magistrate passed the following order: "present: A. P. , Advocate for the Decree-holder Puran Singh has been arrested on conditional warrant and produced before me. He be sent to custody for 9. 10. 1993 till then, file be also summoned. In case he pays the amount of Rs. 14,000/- regarding the maintenance, he be released. " On 11. 10. 1993 Puran Singh made a statement that he has no property to pay the amount of maintenance to the respondent and, therefore, he was ordered to be sent to civil prison for six months.
(3.) THE learned Counsel for the petitioner, Mr. P. P. S. Duggal, Advocate, has contended that the order dated 11. 10. 1993 is illegal and without jurisdiction because, according to the provisions of Section 125 (3) of the Code, the petitioner can be sent to civil prison for not more than one month. Full Bench of five Judges in Emperor v. Beni, A. I. R. 1938 Allahabad 386 (Full Bench), had examined Section 488 (3) of the old Code of Criminal Procedure 1882 (Hereinafter referred to as to old Code), which reads as under : "the Magistrate may, for every breach of the order issue a warrant for levying the amount due in the manner hereinbefore 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. ";