V. GOPALASWAMY, J

(1) This revision is preferred against the order dated 10.12.1986 of the learned S.D.J.M., Parlakhemundi, in Misc. Case No. 94 of 1985, a proceeding under Section 125, Cr. P.C., sentencing the present petitioner-husband to undergo simple Imprisonment tin 9.12.1987 or until payment of maintenance dues to his wife (the present opposite party), in pursuance of his order dated 3.9.1985.

(2.) The learned counsel for the petitioner contended that the impugned order of the learned Magistrate is in violation of the provisions of Section 125(3), Cr. P.C., and assailed it on the following two grounds: (a) First, that the sentence of imprisonment could not have been passed without due execution of the distress warrant against the petitioner. (2) Secondly, that under Section 125(3), Cr. P.C. the maximum sentence that the Magistrate could have passed is only for a period of one month.

(3.) The learned counsel for the opposite party-wife, Mr. S.K. Sahoo, relying on the decisions, which are considered below contended that the grounds urged by the learned counsel for the petitioner are not valid grounds.

(4.) Now I proceed to consider the validity of the petitioners contention that the execution of the warrant is a condition precedent for sentencing the defaulting husband to imprisonment. The provision of Section 488(3) of the Code of Criminal Procedure, 1898 corresponds to Section 125(3) of the Code of Criminal Procedure of 1973.While considering the scope of Section 488(3) of the old Code in Karsan Ramji Chawda v. State of Bombay, their Lordships of the Bombay High Court observed thus:

Therefore, this sub-section confers upon the Magistrate two independent powers; one to issue a warrant which has to be executed in the manner laid down in the sub-section and the other to sentence the person also in the manner laid down in the sub-section. The fallacy underlying Mr. Kotwals argument is that the sentence follows upon the issue of a warrant. That is not the section. The power of the Magistrate to sentence the applicant is not dependent upon the issue of the warrant, or in other words, the issue of a warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant

(5.) P. Alauliah v. Momunisa Begum is a case where the wife filed an application under section Cr125(3), Cr. P.C. for issue of a warrant for levy of maintenance due as fine and the respondent in response to the notice issued, appeared before the Magistrate and admitted that the amount of maintenance had not been paid and he had also no representation to make. Under these circumstances his Lordship of the Andhra Pradesh High Court held that no useful purpose would be served by issuing a warrant and therefore, the order of the Magistrate directing arrest of husband and sentencing him to imprisonment without first issuing a warrant to levy the amount due as fine cannot be said to be illegal.

(6.) Bhure v. Gomati Bai, is another case where the Madhya Pradesh High Court held that an order under Section 125(3) for imprisonment of husband for his negligence to pay maintenance to his wife can be passed without at first issuing the warrant for levying the amount due.

(7.) Relying on the above decisions, I find that sub-section (3) of Section 125, Cr. P.C. confers two independent powers: (1) to issue a warrant; and (2) to sentence the person also. So. I hold that the issue of the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the petitioner-husband. So the contention of the learned counsel for the petitioner that the Magistrate had no power to sentence the petitioner without due execution of the distress warrant is without any substance.

(8.) Now I proceed to consider the other point of law raised by the learned counsel for the petitioner, whether a person, who has defaulted in the payment of maintenance ordered under Section 125, Cr. P.C., can be Sentenced to imprisonment for a period of more than one month. In Karson Ramji Chawdas case (supra), when the order of the Magistrate was challenged on the ground that in passing the sentence for two months, the Magistrate exceeded the jurisdiction conferred upon him under section 488(3), Cr. P.C., the Pull Bench of the Bombay High Court, while repelling the said contention, observed as follows: Therefore, if we read the provision with regard to the power of the Magistrate to sentence the applicant independently of the power to issue the warrant, it is clear that the power to sentence is for the whole or any part of each months 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. Now these words clearly lay down the power of the Magistrate. The Power of the Magistrate is in respect of whole or any part of each months allowance remaining unpaid to sentence the applicant for a term not exceeding one month.T In the above case, two months imprisonment for non-payment of four months allowance was held to be legal.

(9.) The Division Bench of the Calcutta High Court, in Moddari Bin v. Sukdeo Bin, while dealing with the question whether under Section 488(3), Cr. P.C., the punishment should be limited only to a period of one month as the maximum, observed as follows: The maximum of one month in our view, in this context and on proper interpretation of the language of the section is relatable to a period of the arrear for one month is punishable by one months imprisonment and no more. If the default is more than one month then the imprisonment can be for as many months of default subject to a maximum of .12 months. The question here is whether a default of 9 months which had occurred could be punishable with six months imprisonment which the Magistrate here has ordered. On the authorities and on the construction of Section 488(3), Cr. P.C. we have come to the conclusion that the Magistrate can make an order for six months imprisonment for nine months default. In fact the maximum imprisonment which he on the present facts could have given was 9 months, but he has given less.. So in the above case, six monthsT imprisonment for non-payment of nine months allowance was held to be legal.

(10.) In Kashmir Singh v. Kartar Kaur, relying on the Karson Ramji Chawdas case and Moddari Bins case (supra), the Rajasthan High Court observed that as 11 months maintenance was due, the Magistrate could have ordered imprisonment to the extent of 11 months, while upholding the order of the Magistrate sentencing the husband to only 6 months imprisonment.

(11.) Relying on the above decision, I hold that the contention of the learned counsel for the petitioner that whatever the arrears, the maximum period of imprisonment that can be ordered is only one month, is not tenable.

(12.) In the result, in view of my above discussion on the points raised by the learned counsel for the petitioner, I find no merit in the revision petition and the same is accordingly dismissed. Revision dismissed.