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Judgment
E.V.Venugopal, J
This Criminal Petition is filed by the petitioner/accused No.6 under Section 528 of Bharatiya Nagarik Suraksha Sanhita (BNSS) seeking to quash the order passed in Crl.M.P.No.05 of 2023 in Crl.M.P.No.02 of 2022 on the file of Judge, Family Court-cum-Additional District and Sessions Judge, Khammam.
Heard Sri C. Sharan Reddy, learned counsel for the petitioner and Sri Jithender Rao Veeramalla, learned Additional Public Prosecutor for the respondent No.1/State.
Learned counsel for the petitioner would vehemently submit that as against the provisions under Section 125 (3) of Cr.P.C, the learned trial Court has erroneously committed the petitioner to jail for a period of (06) months for non-compliance of the order in depositing the maintenance as ordered by the learned trial Court in its order dated 27.09.2023 in Crl.M.P.No.05 of 2023. Hence, seeks indulgence of this Court.
Section 125 (3) of Cr.P.C reads as under:
Section 125 (3) in The Code of Criminal Procedure, 1973(3) 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 [allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case may be,] [Substituted by Act 50 of 2001, Section 2 for "allowance" (w.e.f. 24-9-2001).] 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:
Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due:
Provided further that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
Learned counsel for the petitioner would further submit that the petitioner is languishing in the jail from 27.09.2024. He further relied on the decision passed by this Court in Crl.P.No.7766 of 2018 dated 14.08.2018.
On the other hand, learned Additional Public Prosecutor vehemently opposed the present criminal petition.
Having heard both the learned counsel, this Court opines that as against the statute provided under Section 125 (3) of Cr.P.C which is stated as supra, maximum imprisonment as imposed in the provision of law under Section 125 (3) of Cr.P.C is for a term which may extend to one month or until payment if sooner made.
In the instant case, learned trial Court has failed to appreciate that the trial Court is not empowered under law to impose six months imprisonment under Section 125 (3) of Cr.P.C and hence the impugned Order dated 27.09.2024 in Crl.M.P.No.05 of 2023 in Crl.M.P.No.02 of 2022 in M.C.No.40 of 2022 is set-aside and the petitioner is ordered to be released forthwith.
With the above observations, this criminal petition is allowed.
Miscellaneous applications, if any, pending shall also stand disposed of.