# Vipin Kumar v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2022) 4 ILRA 679
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-25
- **Case number:** Crl. Misc. Application U/s 482 No. 4483 of 2022
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-kumar-v-state-of-u-p-anr-opp-parties-48289
- **Pages:** 5

## Headnote

680 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 128quashing of the order of Family courtmatrimonial
dispute-maintenance
awarded to the mother and daughterapplicant failed to comply the orderrecovery warrant issued-in pursuance of
recovery warrant the applicant was sent
to jail-learned Principle judge, Family
court has not followed the establish
procedure u/s 421(1)(a) Cr.P.C. for
issuance of recovery warrant in default of
payment
of
arrears
maintenance
allowance within the time allowed by himMagistrate has no jurisdiction to issue of
warrant of arrest straight way against the
person liable for payment of maintenance
allowance-the impugned order is patently
illegal and not warranted by law-Hence,
set aside.(Para 1 to 13)

B. As per section 125(3) Cr.P.C. it is
apparently clear that in the event of any
failure on the part of any person to comply
with
an
order
to
pay
maintenance
allowance, without sufficient cause, the
Magistrate is empowered to issue warrant
for levying the amount due in manner
provided for levying fines for every breach
of
the
order.
Section
421
Cr.P.C.
prescribes the manner for levying fine.
The magistrate is empowered to issue
distress warrant for the purpose of
realisation of the amount, by attachment
and sale of movable property belonging to
the defaulter as contemplated under
section 421 (1)(a) and without first
sentencing the defaulter to imprisonment
after execution of the distress warrant.
(Para 10,11)

The application is allowed. (E-6)

## Text

4 All. Vipin Kumar Vs. State of U.P. & Anr.
679
manner, but it has to be used sparingly,
only in such an appropriate cases, where it
manifestly appears that there is a legal bar
against the institution or continuance of the
criminal proceedings or where allegations
made in first information report or chargesheet and the materials relied in support of
thereof, taking on their face value and
accepting in their entirety do not disclose
the commission of any offence against the
accused.

31. This Court is further of the view
that the grounds taken in the application
reveal that many of them relate to
disputed question of fact, which cannot
be adjudicated by this Court at the pretrial
stage,
which
can
be
more
appropriately gone into by the trial court
at the appropriate stage. The applicant
has an alternative statutory remedy of
moving discharge application at the
appropriate stage.

32. The taking of cognizance of the
offence is an area exclusively within the
domain of a Magistrate. At this stage, the
magistrate has to be satisfied whether
there is sufficient ground for proceeding
and not whether there is sufficient ground
for conviction. At that stage the court
below is not required to go into the merit
and demerit of the case. Genuineness or
otherwise of the allegations cannot be
even
determined
at
the
stage
of
summoning the accused.

33. Having considered the facts,
circumstances and nature of allegations
against the applicant in the instant case, I
am of the considered view that a prima
facie cognizable offence is made out
against the applicant. The impugned
criminal proceeding under the facts of
this case cannot said to be an abuse of the
process of the Court.

34. In view of what has been
indicated herein above, I am of the view
that there is no good ground to invoke
inherent power under Section 482 of the
Code of Criminal Procedure by this
Court.

35. Accordingly, the relief as sought
by the applicant by means of the instant
application is hereby refused.

36. This application under Section
482 of the Code of Criminal Procedure is
accordingly rejected.

37. The trial court is directed to
proceed
against
the
applicant
in
accordance with law.

38. Office is directed to transmit a
copy of this order to the learned Trial
Court with a week.
----------

(2022)04ILR A679
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2022

BEFORE

THE HON'BLE AJIT SINGH, J.

Crl. Misc. Application U/s 482 No. 4483 of 2022

Vipin Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Omvir Singh Rajpoot

Counsel for the Opp. Parties:
A.G.A.
680 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law - Code of Criminal
Procedure, 1973-Sections 482 & 128quashing of the order of Family courtmatrimonial
dispute-maintenance
awarded to the mother and daughterapplicant failed to comply the orderrecovery warrant issued-in pursuance of
recovery warrant the applicant was sent
to jail-learned Principle judge, Family
court has not followed the establish
procedure u/s 421(1)(a) Cr.P.C. for
issuance of recovery warrant in default of
payment
of
arrears
maintenance
allowance within the time allowed by himMagistrate has no jurisdiction to issue of
warrant of arrest straight way against the
person liable for payment of maintenance
allowance-the impugned order is patently
illegal and not warranted by law-Hence,
set aside.(Para 1 to 13)

B. As per section 125(3) Cr.P.C. it is
apparently clear that in the event of any
failure on the part of any person to comply
with
an
order
to
pay
maintenance
allowance, without sufficient cause, the
Magistrate is empowered to issue warrant
for levying the amount due in manner
provided for levying fines for every breach
of
the
order.
Section
421
Cr.P.C.
prescribes the manner for levying fine.
The magistrate is empowered to issue
distress warrant for the purpose of
realisation of the amount, by attachment
and sale of movable property belonging to
the defaulter as contemplated under
section 421 (1)(a) and without first
sentencing the defaulter to imprisonment
after execution of the distress warrant.
(Para 10,11)

The application is allowed. (E-6)
(Delivered by Hon'ble Ajit Singh, J.)

1. Heard learned counsel for the
applicant and learned A.G.A. for the State.

2. The applicant by means of this
application under Section 482 Cr.P.C. has
invoked the inherent jurisdiction of this
Court with a prayer to quash the order
dated 30.11.2021 passed by the Principal
Judge, Family Court, Kasganj in Case No.
118 of 2020 (Smt. Kaushalya @ Kaushal
vs. Vipin Kumar), under Section 128
Cr.P.C., P.S. Kasganj, district-Kasganj. A
further prayer is that a direction be issued
to the court below to release the applicant
from jail forthwith.

3. It is submitted by learned counsel
for the applicant that marriage between
applicant and opposite party no. 2 was
solemnized on 8th December, 2010. Out of
the aforesaid wedlock, a baby girl was
born. However, after some time, the
relationship between the husband and wife
became
strained
and
incompatible.
Thereafter the opposite party no. 2 has
initiated several litigations against the
applicant. In connection with the same, she
along with her daughter filed an application
under Section 125 Cr.P.C. before the
Family Court, Kasganj, which was allowed
by the Principal Judge, Family Court,
Kasganj vide judgment and order dated
30.11.2021. It is also submitted that the
applicant
is
a
handicapped
person,
certificate whereof has been filed as
Annexure-2 to the affidavit accompanying
the application. Due to the reason he failed
to comply with the order passed under
Section 125(3) Cr.P.C. and the learned
court below has issued the recovery
warrant dated 8.10.2021, directing that the
applicant shall pay a sum of Rs. 1,65,000/-
(Rs. one lac sixty five thousand) to the
opposite party no. 2 as maintenance w.e.f.
30.7.2017 to 19.1.2020 and in pursuance of
recovery warrant the applicant was sent to
jail. On 30.11.2021 the applicant was
summoned by the court below and he was
produced by the jail authority before the
court blow and the court below had passed
the order, while detaining the applicant in
4 All. Vipin Kumar Vs. State of U.P. & Anr.
681
jail for a period of one month and directed
that during detention, the applicant shall
pay a sum of Rs. 5,000/- per month to
opposite party no. 2, fixing next date, i.e.
2012.2021,
directing
the
Jail
Superintendent to produce the applicant
again on the next date fixed.

4. It is also submitted by learned
counsel for the applicant that provisions of
Section 125(3) Cr.P.C. specifically provides
for issuance of a warrant for lavying the
amount issued in the manner provided for
lavying of fines. The learned court below has
passed the order dated 30.11.2021 for
detention of applicant in jail for one month
without complying the provision contained in
Section 125(3) Cr.P.C. and without imposing
any fine, hence the impugned order dated
30.11.2021 is liable to be quashed. In support
of his submissions, learned counsel for the
applicant has placed reliance upon the
following judgments of Gauhati High Court,
Calcutta High Court and Punjab & Haryana
High Court:

1. Hazi Abdul Khaleque vs. Mustt.
Samsun Nehar, 1991 CriLJ, 1843;

2.
Dipankar
Banerjee
vs.
Tanuja
Banerjee reported in 1998 CriLJ 907; and

3. Om Prakash @ Parkash vs. Vidya
Devi reported in 1992 CrlLJ 658.

5. Per contra, learned A.G.A. for the
State has opposed the submissions made by
the learned counsel for the applicant by
contending that that the applicant is a
defaulter and has not paid any amount as
awarded by the Family Court under order
dated 30.7.2017 to opposite party no. as
interim allowance. Therefore, the Family
Court has rightly issued recovery warrant
against the applicant for realization of the
amount so due and there is no error in the
order impugned.

6. I have considered the submissions
made by the learned counsel for the parties
and have gone through the record.

7. Before coming to the merits of the
present case, it would be worthwhile to
reproduce Sections 125 (3) and 421
Cr.P.C., which read as follows:

"125. Order for maintenance of wives,
children and parents.

......

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 in the manner provided for
levying fines, and may sentence such
person, for the whole or any part of each
month' s allowances 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.

.........."

"421. Warrant for levy of fine.

(1) When an offender has been
sentenced to pay a fine, the Court passing
the sentence may take action for the
recovery of the fine in either or both of the
following ways, that is to say, it may-

(a) issue a warrant for the levy of the
amount by attachment and sale of any
movable
property
belonging
to
the
offender;

(b) issue a warrant to the Collector of
the district, authorising him to realise the
amount as arrears of land revenue from the
movable or immovable property, or both,
of the defaulter: Provided that, if the
sentence directs that in default of payment
of
the
fine,
the
offender
shall
be
imprisoned, and if such offender has
undergone the whole of such imprisonment
in default, no Court shall issue such
682 INDIAN LAW REPORTS ALLAHABAD SERIES
warrant unless, for special reasons to be
recorded
in
writing,
it
considers
it
necessary so to do, or unless it has made an
order for the payment of expenses or
compensation out of the fine under section
357.

8. The State Government may make
rules regulating the manner In which
warrants under clause (a) of sub- section
(1) are to be executed, and for the summary
determination of any claims made by any
person other than the offender in respect of
any property attached in execution of such
warrant.

9. Where the Court issues a warrant to
the Collector under clause (b) of sub-
section (1), the Collector shall realise the
amount in accordance with the law relating
to recovery of arrears of land revenue, as if
such warrant were a certificate issued under
such law: Provided that no such warrant
shall be executed by the arrest or detention
in prison of the offender."

10. On a plain reading of sub-section
(3) of Section 125 Cr.P.C., it is apparently
clear that in the event of any failure on the
part of any person to comply with an order
to pay maintenance allowance, without
sufficient
cause,
the
Magistrate
is
empowered to issue warrant for levying the
amount due in manner provided for levying
of fines for every breach of the order.
Section 421Cr.P.C. prescribes the manner
for levying fine and clause (a) of subSection (1) of Section 421 provides for
issuance of warrant for levy of the amount
by attachment and sale of any movable
property belonging to the offender. In other
words, in the event of any failure without
sufficient cause to comply with the order
for maintenance allowance, the Magistrate
is empowered to issue distress warrant for
the purpose of realization of the amount, in
respect of which default has been made, by
attachment and sale of any movable
property, that may seized in execution of
such warrant. Sub-section (3) of Section
125 Cr.P.C. makes it further clear that the
jurisdiction of the Magistrate for sentencing
such person to imprisonment would arise
only after the maintenance allowance, in
whole or in part, remains unpaid after the
maintenance allowance, in warrant. It is
only after the sentence of imprisonment is
awarded by the Magistrate under subsection (3) of Section 125 that the occasion
may arise for issuance of warrant of arrest
for bringing the person concerned to Court
for his committal to prison to serve out the
sentence.

11. It is further apparent that the
Magistrate has no jurisdiction to issue
warrant of arrest straight way against the
person liable for payment of maintenance
allowance in the event of non-payment of
maintenance allowance within the time
fixed by the court without first levying the
amount due as fine and without making any
attempt for reaslization that fine in one or
both the modes for recovery of that fine as
provided for in clauses (a) or (b) of subSection (1) of Section 421 Cr.P.C. say by
issuance of distress warrant for attachment
and sale of movable property belonging to
the defaulter as contemplated under Section
421 (1) (a) and without first sentencing the
defaulter
to
imprisonment
after
the
execution of the distress warrant.

12. In view of aforesaid, this Court
finds that the Principal Judge, Family
Court, Kasganj has not followed the
establish
procedure
for
issuance
of
recovery warrant in default of payment of
arrears maintenance allowance within the
time allowed by him in the execution case
4 All. Jatinder Pal Singh Vs. M/S STATCON POWER CONTROLS LTD. & Delhi & Ors.
683
concerned. The order directing issuance of
warrant of arrest is patently illegal and not
warranted by law. Order dated 30.11.2021
is hereby set aside. Let the Principal Judge
pass a fresh order in the aforesaid execution
cases filed by opposite party no.2 in light of
the observations made herein above.

13. Subject to the observations made
above, the present petition is allowed.`
----------
(2022)04ILR A683
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.03.2022

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Appl. U/S 482 No. 10245 of 2021

Jatinder Pal Singh ...Applicant
Versus
M/S STATCON POWER CONTROLS LTD. &
Dehli & Ors. ...Opp. Parties

Counsel for the Applicant:
Sri Varun Singh, Sri Divendu Tripathi, Sri Talha
Abdul Rahman, Sri Santosh Kumar Tripathi

Counsel for the Respondents:
A.G.A., Sri S.K. Mishra

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Negotiable
Instrument Act, 1881-Sections 138 & 142quashing of summoning order-applicant is
the Director of company-Two cheques
have been issued by the company in
favour of opposite party-both the cheques
have
dishonoured-Legal
notices
were
issued to the applicant but they not
complied with it, then a complaint was
filed-the opposite party has not made any
specific averment against the applicant as
to the part played by him in the whole
transaction-merely being a director in a
company it is not sufficient to make the
applicant liable u/s 141 of the NI Actapplicant was a nominee Director and who
resigned-no specific averment that the
applicant is involved in day-to-day affairs
of the company-liability is cast on persons
who may have something to do with the
transaction complained of-the summoning
order is illegal and cannot be sustained.
(Para 1 to 12)

The application is allowed. (E-6)

List of Cases cited:
1. K. Srikanth Singh Vs North East Securities
Ltd. (2007) 12 SCC 788

2. DMC Financial Services Ltd. Vs J. N . Sareen
(2008) 8 SCC 1

3. Chintalapati Srinivasa Raju Vs SEBI (2018) 7
SCC 443

4. Pooja Ravinder Devidasani Vs St. of Mah. &
anr .(2014) 16 SCC 1

5. SMS Pharmaceuticals Ltd. Vs Neta Bhalla &
anr. (2005) 8 SCC 89

6. Srikanth Singh Vs North East Securities Ltd.
(2007) 12 SCC 788

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. Heard Sri Varun Singh, learned
counsel for the applicant, Sri S.K. Mishra,
learned counsel for the O.P. No. 2 as well
as learned A.G.A. for the State and perused
the record.

2. This application U/s 482 Cr.P.C.
has been filed for quashing the judgment
and order dated 2.1.2021 passed by the
Special Judge SC/ST (Prevention of
Atrocities) Act, Gautam Budh Nagar in
Criminal Revision No. 72 of 2019 and
further to quash the summoning order dated
7.1.2014 passed by the learned A.C.J.M.
IIIrd, Gautam Budh Nagar in Complaint