M.L. VISA, J.

(1.) This habeas corpus petition has been filed for release of petitioner, who has been arrested on 7-8-1995 on the basis of distress warrant and warrant of arrest issued on 1-8-1995 by Sri P.K. Dubey, the then Judicial Magistrate. Nalanda at Biharsharu for maintenance allowance and was remanded to judicial custody on 7-8-1995 and since then the operation of the remand order is being extended at regular intervals of 14 days.

(2.) The brief facts of the case are that Indra Devi (respondent No.2) wife of petitioner filed Maintenance Case No. 9M/87 against the petitioner under Section 125 of the Code of Criminal Procedure (in short Cr. PC) claiming maintenance for herself and her two children. On 24-8-1990, Shri P.K. Dubey the then Judicial Magistrate, Nalanda at Biharsharif passed order in favour of wife of petitioner ordering the petitioner to pay a sum of Rs. 1,500/ - per month for maintenance of his wife and children. The petitioner challenged the aforesaid order before this Court in Criminal Revision No. 688 of 1990 which was admitted on 9-4-1991 with the observation that during the pendency of revision application the petitioner shall deposit a sum of Rs. 800/- per month and in case he fails to deposit the same the stay order shall stand vacated. The petitioner was not in a position to deposit a sum of Rs. 800/ - per month even the learned Magistrate on the petition filed by the wife of the petitioner issued warrant of arrest on 1-8-1995 and the petitioner was arrested on 7-8-1995 by police and was produced before the learned Magistrate who remanded the petitioner to judicial custody till 9-8-1995 and since then the petitioner is being remanded to judicial custody after extending the order of remand at the intervals of every 14 days. The aforesaid criminal revision application filed by the petitioner was dismissed by this Court on 23-5- 1998. The petitioner moved a bail petition before the learned Magistrate but his prayer for bail was rejected on 19-91998.

(3.) A report from the Court below was called for about the procedure followed by it while passing orders of remand against the petitioner. The report has been received in which it has been stated that the petitioner was arrested on 7-8-1995 in execution of distress warrant and warrant of arrest issued by Shri A.K. Modi, the then Judicial Magistrate. 1st Class in Case No. 9M/87 and the petitioner was taken into custody and was sent to jail and since then the petitioner was being remanded by Shri Mcdi till 30-1-1999. After transfer of Sheri Modi his Court was succeeded by Sri (sic), Judicial Magistrate 1st Class. He also until payment whichever is earlier. The manner provided for levying fines is prescribed under Section 421. Cr PC. So, two conditions before sentencing a person to imprisonment for nonpayment of maintenance allowance are required. First, the Magistrate must be satisfied that the person without any sufficient cause is not paying the maintenance and violating the order and secondly, to issue warrant for levying the amount due in the manner provided for levying fines and after its execution to ascertain the amount which has remained unpaid. If any amount is found to have remained unpaid, the Magistrate may sentence such person to imprisonment for a period of one month for the whole or any part of each monthTs allowance remaining unpaid. In other words, if, after issuance of warrant for levying the amount due in the manner provided for levying fine, it is found that no amount has remained due to the question of sentencing the person to imprisonment does not arise. So, the Magistrate has to see the result of execution of warrant issued for levying amount due.

(4.) In the present case, there is nothing on the record to show that before issuing distress warrant and warrant of arrest against the petitioner, the Magistrate was satisfied that the petitioner was not complying the order without any sufficient cause. For the satisfaction of the Magistrate that the order was being violated without any sufficient cause either the Magistrate on an application filed by the wife of the petitioner should have issued a show cause notice to the petitioner asking to show cause why steps be not taken as provided under Section 125 (3) for realisation of amount or there should have been materials before him which should have satisfied him that the petitioner was not complying the order of the Court without any sufficient cause. In the present case, admittedly no notice to petitioner was given by the learned Magistrate before issue of warrant of arrest against him and there is nothing on record to show that there were sufficient materials before issue of warrant of arrest against the petitioner for satisfying him that the petitioner was not complying the order without any sufficient cause. In the present case, learned Magistrate has issued distress warrant and warrant of arrest both simultaneously. The words remaining unpaid after the execution of warrantT appearing in Section 125 (3), Cr. PC. are very significant. At first instance warrant for levying the amount in the manner provided for levying the fine as contained in Section 421, Cr. PC has to be issued. After execution of warrant, it has to be ascertained what amount has remained unpaid and only for the amount which remains unpaid, a person can be sentenced to imprisonment by the learned Magistrate. Here, the learned Magistrate without waiting for the execution of distress warrant remanded the petitioner to jail custody which is not according to the provisions of Section 125 (3), Cr. PC.

(5.) The remand of petitioner to jail custody suffers from another illegality. After the arrest, the petitioner was produced before the learned Magistrate on 7-8-1995 and he was remanded to jail custody till 9-8-1995. Thereafter, he was further remanded on 9-8-1995 till 23-8-1995 and again on 23-8-1995 till 6-9-1995 and since then the order of remand is being extended at regular intervals of 14 days. We are not sure till what time the petitioner will be continuously remanded in this case. The learned Magistrates one after another succeeding the Court by which order of maintenance was passed without applying their judicial mind are going on passing the orders of remand of petitioner to jail custody. It appears that none of them ever took trouble to go through the provisions of Section 125 (3) Cr. PC. Before sending a person to jail custody in non - compliance of the maintenance order passed under Section 125 (1), Cr. PC he has to be awarded sentence which is one month for the whole or part of each monthTs allowance. The report which has been received from the Court below does not show that any sentence of imprisonment against the petitioner was passed and when he was first produced before the Court below he was simply remanded to jail custody. Thus, we find that detention of the petitioner can safely be said to be illegal.

(6.) In view of the facts stated above, the order, dated 7-8-1995 remanding the petitioner to jail custody and subsequent orders of his remand which flow from this order cannot be sustained.

(7.) In the result, this writ application is allowed and the order, dated 7-8-1995 and subsequent orders in respect of remand of petitioner to jail custody are hereby quashed. The petitioner will be set at liberty forthwith unless he is required to be detained in any other case. The learned Magistrate is directed to dispose of the application of respondent No. 2 in accordance with law. Petition allowed. Directions passed accordingly.