Warrant of arrest u/s 128 crpc
tj
(Querist) 08 June 2014
This query is : Resolved
Can a magistrate issue conditional warrant of arrest u/s 128 CrPC? I studied the provisions of maintenance, where it is clear that u/s 125(3) there is provision for punishment and warrant of arrest can be issued. But then there is limitation of one year u/s 125(3).When application is filed after more than two years, then it can be filed u/s 128 CrPC only where there is no provision of punishment.So is the magistrate empowered to issue conditional warrant of arrest straightway on application u/s 128?
Raj Kumar Makkad
(Expert) 08 June 2014
It would have been better had you posted the facts of your query, however, section 128 is not meant for the provision of enforcement of maintenance beyond 2 years as you said in your query rather the same is for the enforcement of the order of maintenance. Its language is very much clear:
A copy of the order of 1[maintenance or interim maintenance and expenses of proceeding, as the case may be,] shall be given without payment to the person in whose favour it is made, or to his guardian, if any, or to his guardian, if any, or to the person to 2[whom the allowance for the maintenance or the allowance for the interim maintenance and expenses of proceeding, as the case may be,] is to be paid; and such order may be enforced by any Magistrate in any place where the person against whom it is made may be, on such Magistrate being satisfied as to the identity of the parties and the non-payment of the 3[allowance, or as the case may be, expenses, due]
Sankaranarayanan
(Expert) 08 June 2014
Well advised by Makkad ji , i do joint hand with him even it is academic query
Arvind Singh Chauhan
(Expert) 08 June 2014
Respected Sir I am also waiting for advice regarding my query-
http://www.lawyersclubindia.com/forum/What-is-the-correct-procedure-102692.asp#.U5RGdnb0PMw
Dr J C Vashista
(Expert) 09 June 2014
Although it is an academic query yet I endorse the expert advise of Sh. Raj Kumar Makkad.
I would like to add to it that the application u/S 125 Cr. PC is a civil matter clothed under the provisions of criminal law. In execution of order passed by the Magistrate, the non-applicant/ respondent can be sent to civil imprisionment for persistant default in making payment to the applicant, that too not more than 30 days at a time and shall be released immediately on making payment of outstanding amount.
There wouldnot be any conviction and record of sending the non-applicant/ respondent to jail in execution of order passed.
R.K Nanda
(Expert) 09 June 2014
academic query.
Guest
(Expert) 09 June 2014
Well advised by all the experts
V R SHROFF
(Expert) 09 June 2014
agree advised by Makkad ji , however it is academic query
tj
(Querist) 09 June 2014
Dear Experts, thanks for your advice. However my query remains unsolved.Merely quoting from CrPC does not clarify things.As already pointed out, I have also gone through that part of CrPC which has been quoted by experts.It is not an academic query but a practical problem.A wife has filed application u/s 128 CrPC for non-payment of maintenance awarded u/s 125 , after more than 2 years of the order u/s 125.The magistrate has issued conditional arrest warrants.Is it legal?I am a layman but beg to differ with the experts that 128 is not for enforcement of order after two years.There have been numerous judgments clarifying that maintenance can be recovered any time using 128 CrPC, though there is limitation of one year in 125(3).However,there is no provision of punishment u/s 128. So isn't the order of arrest warrant u/s 128 illegal?
Raj Kumar Makkad
(Expert) 09 June 2014
It is correct that the coercive methods for recovery like awarding punishment or sending behind bars/civil imprisonment cannot be made under section 128 Criminal Procedure code and as such the order passed is illegal which requires to be challenged by way of revision petition.
T. Kalaiselvan, Advocate
(Expert) 13 June 2014
I agree with the opinions given by expert Mr. Raj Kumar Makkad Sir on this issue.
Nadeem Qureshi
(Expert) 13 June 2014
Dear Querist
the magistrate have power to issue arrest warrant under section 125 (3) of crpc if the wife or parents file an application under Section 128 of crpc
To enforcement of order.
the order is very much legal.
Feel free to call
