Chagla, CJ.



1. The petitioner in this case was ordered by the Magistrate to pay maintenance to his wife amounting to Rs. 30/- per month and maintenance to his daughter amounting to Rs. 25 per month. The applicant made a default and failed to comply with this order. The wife made an application that there had been a default in the payment for four months. The Magistrate issued a warrant and the warrant could not be executed as the applicant had no property. The wife then made an application under S. 488 (3) and on that application the Magistrate passed an order sentencing the applicant to be imprisoned for a term of 15 days in respect of each month for which the allowance remained unpaid.



2. This sentence has been challenged on the ground that in passing the sentence for two months, the Magistrate exceeded the jurisdiction conferred upon him under S. 488 (3). The matter came up before Mr. Justice Bavdekar and Mr. Justice Desai and they referred it to a Full Bench, as they felt that they were bound by an unreported decision of a Division Bench of this Court reported in Queen Empress v. Pandu Mahadu, 1885 Rat Un. Cr. C. 801 (A). The contention urged by Mr. Kotwal on behalf of the applicant is that in respect of one warrant issued, the sentence which can be inflicted by the Magistrate can only be one month and not exceeding one month. Now toning to the sub-section.

"if any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due hereinbefore provided for levying fines, and may sentence such person, 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."

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 the warrant is not a condition precedent to the jurisdiction of the Magistrate to sentence the applicant. 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.

Now, the view taken in this unreported judgment was based, with respect, on the assumption with which we have just dealt that a separate warrant should issue for each separate monthly default and when that is done, the maximum punishment can be one months imprisonment. This view proceeds on the basis that whenever there is a default, a warrant has to be issued and the Magistrate must proceed to sentence the applicant after the warrant has been issued. With respect, there is no warrant for this view and this decision was based on a judgment of the Allahabad High Court reported in Queen-Empress v. Narain, ILR 9 All 240 (B). The Allahabad High Court since then in a Full Bench has come to a contrary conclusion: see Emperor v. Beni, ILR (1938) All 750 : (AIR 1938 All 386) (C). Mr. Chandrachud has also drawn our attention to the judgments in Allapichai Ravuthar v. Mohidin Bibi, ILR 20 Mad 3 (D), and in King Emperor v. Budhoo Mandal, ILR (1949) Nag 230: (AIR 1949 Nag 269) (E), which have also taken the same view and, according to the Allahabad High Court, presumably the decision in Bhiku Khan v. Zahuran, ILR 25 Cal 291 (F), is also to the same effect. It may also be pointed out that the history of this section also supports the view that we have taken. In the Code of 1861, the section ran in the following terms :

"The Magistrate may, for every breach of the order by warrant, direct the amount due to be levied in the manner provided for levying fines; or may order such person to be imprisoned with or without hard labour for any term not exceeding one month."

When the Code was amended in 1882, the words substituted were the same as in the Code of 1898.



3. In our opinion, therefore, the learned Magistrate was right in the order that he passed. The result is the application fails and must be dismissed. The applicant to surrender to his bail.

Application dismissed.