Gujarat High Court Nileshkumar Rameshchandra Dhruv vs State Of Gujarat on 26 March, 1990 Equivalent citations: I (1991) DMC 280, (1990) 2 GLR 996 Author: J Mehta Bench: J Mehta JUDGMENT J.U. Mehta, J. 1. Rule Mr. S.T. Mehta, Additional Public Prosecutor appears and waives service of rule for the State. 2. The petitioner who is the original opponent in Miscellaneous Criminal Application No. 132 of 1988 has approached this Court challenging the order dated 26-9-1988 passed by the learned Chief Judicial Magistrate, Amreli, who issued a warrant against the present petitioner to recover the amount of maintenance of Rs. 7,500/- by attaching the movable property and if the said amount could not be recovered, from that, then he ordered to arrest the present petitioner and to produre him before the Court. 3. Notice was issued to respondent No. 1 who is the wife and also to the State. Respondent No. 1 remained present in person before this Court and Mr. S.T. Mehta, learned Additional Public Prosecutor for the State waived service of notice on behalf of the State. Respondent No. 1 submitted that she has nothing to say in the matter. In view of the said statement made by respondent No. 1, the Learned Counsel for the petitioner sought permission to delete her name as respondent No. 1. Permission was granted. In these circumstances, the Learned Counsel for the petitioner and the learned Additional Public Prosecutor for the State are heard. 4. The learned Counsel for the petitioner submits that looking to the provisions of Section 125 of the Criminal Procedure Code and particularly, Sub-section (3) of Section 125, before issuing a warrant for levying the amount due, the learned Magistrate ought to have beard the petitioner and in the present case, admittedly the petitioner is not heard before issuing the warrant and, therefore, the order is bad. That learned Counsel for the petitioner also drew my attention to the judgment of this Court in the case of Natverlal Rasiklal Vyas v. Manjulaben, daughter of Harishanker Lallubhai and Anr., Criminal Revision Application No. 246 of 1974 decided on 6-7-1974. This High Court interpreted the provisions of Section 488(3) of the Criminal Procedure Code, 1898 (old) which also dealt with an enforcement order. It is, laid down by this High Court in the said case that Sub-section (3) deals with the enforcement of the order already passed by the Court regarding maintenance on satisfaction of the conditions mentioned in Section 488(1) of the Criminal, Procedure Code. When such an order is sought to be enforced, person who is so ordered has to be given an opportunity to show that he had failed to comply with the order on account of sufficient cause and if he is able to show such sufficient cause for his failure to comply with the order, the Court can refuse to enforce the order. I am in respectful -agreement with the aforesaid principle laid down by this High Court in the said Criminal Revision Application. 5. In my opinion, there is much force in the contention raised by the learned Counsel for the petitioner Sub-section (3) of Section 125 of the Criminal Procedure Code, 1973 reads as under :-- Nileshkumar Rameshchandra Dhruv vs State Of Gujarat on 26 March, 1990 Asst: Legal Dept Adviser. Anurag Rai .
Posted on: Wed, 17 Dec 2014 17:56:34 +0000
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