Padmavati Bai vs Kalyan Rao

A.R. Somnath Iyer, J.—This reference has been made by the District Magistrate, Gulbarga, in a matter arising out of proceedings instituted u/s 488 of the Code of Criminal Procedure.

In those proceedings, an order for maintenance was made against the husband and, after that order was made, the Magistrate issued a warrant for levying the amount due, under Sub-section (3) of that section. Against the issue of the warrant in that way, the husband made a complaint in the revision petition presented to the District Magistrate. and it is as a consequence of the representation of that revision petition, that this reference has been made.

The District Magistrate points out in his reference that since the issue of the warrant was not preceded by a notice calling upon the husband to comply with the order made u/s 488(1), the warrant was not legally or validly issued.

The learned Government Pleader, Mr. Mariappa, supports the reference and since the wife in whose favour the order was made is unrepresented in this revision petition, I requested Mr. Raghunathan to assist me to understand correctly the provisions of Section 488(3), and I am grateful to him for the assistance he has rendered.

Mr. Raghunathan has submitted that on a correct construction of- Sub-section (3) of Section 488, the warrant which may be issued for the levy of the amount payable u/s 488(1) must be preceded ceded by a notice issued to the husband requiring him to comply with the order. Mr. Raghunathan has urged that if such notice is issued, it would be open to the husband to establish sufficient cause for non-compliance, in which event it would not be permissible for the Magistrate to issue a warrant for levying the amount.

Although Sub-section (3) of Section 488 does in so many words require that such notice should be issued to the person against whom an order is made u/s 488(1), Mr. Raghunathan, in my opinion, is right in contending that the requirement that such notice should be issued, is implicit in Sub-section (3).

The learned Government Pleader has drawn my attention to Laxmi Narain Vs. State, , in which the same view was taken by their Lordships of the High Court of Allahabad.

I accept this reference and set aside the warrant issued by the Magistrate in this case. The Magistrate is directed to issue to the husband a notice in the first instance, requiring him to comply with the order made u/s 488(1) and to issue a warrant for the amount levied only if the husband fails to establish sufficient'' cause for non-compliance.