IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
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Cr.MMO No. 54 of 2018
Decided on : 15.03.2018
Mohammad Arif ……Petitioner.
Versus
Shabana Qureshi …Respondent
_
Coram:
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?
For the Petitioner : Ms. Megha Kapoor Gautam,
r Advocate.
For the Respondent: None.
_ __
Vivek Singh Thakur, Judge (oral)
The present petition has been preferred by the
petitioner for quashing the proclamation dated 17.01.2018,
(Annexure (P-1), requiring presence of petitioner published
by Judicial Magistrate 1st Class, Nahan, District Sirmour, in
Case No. 197/4 of 2016, titled as Shabana Qureshi versus
Mohammad Arif.
2. I have heard the learned Counsel for the
petitioner and also perused the record requisitioned from
the Trial Court.
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3. It is evident from the record that in pursuance
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to the compromise made on 11.04.2015 before the Lok
Adalat, between the present petitioner and the respondent
herein, the petitioner had agreed to pay `2500/- per month,
as maintenance to the respondent and on the basis of the
said agreement, the petition preferred by the respondent
under Section 125 of the Code of Civil Procedure was
disposed of by the Judicial Magistrate 1st Class, Nahan, vide
order dated 11.04.2015.
4. In default of making payment of maintenance
by the petitioner, the respondent has filed an application on
21.07.2016, in the Court of Chief Judicial Magistrate,
Sirmour at Nahan, for recovery of maintenance awarded by
the Court in pursuance to compromise arrived at between
the parties before the Lok Adalat. The said application has
been assigned to the Judicial Magistrate 1st Class, Nahan,
wherein a notice was issued to petitioner on 1st September,
2016, but the petitioner despite service, did not appear in
the Court on 17.10.2016 and he was proceeded ex-parte.
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5. During aforesaid proceedings, warrant of
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attachment of property of the petitioner was also issued on
24.01.2017. Thereafter, on 27.02.2017, the respondent
filed an application stating therein that in execution petition
filed by her, petitioner, having no movable and immovable
property in his name, had failed to appear before the Court
and thus, he deserved to be committed to civil
imprisonment for his willful failure in making the payment
of maintenance, whereupon a show cause was issued to
the petitioner as to why he be not committed to civil
imprisonment on account of default in making payment of
maintenance.
6. Thereafter, an arrest warrant was issued to the
petitioner on 05.04.2017 for ensuring his response and
presence, but for one reason or another, the petitioner
managed to avoid his presence in the Court and execution
of the arrest warrants issued for dates 28.04.2017,
17.05.2017, 05.06,2017, 03.07,2017 and 16.08.2017,
despite the direction of execution of arrest warrant through
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SHO concerned. Thereafter, non-bailable warrant issued
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against the petitioner on 16.08.2017 was received with the
report that address of the petitioner was not correct,
whereupon again non-bailable warrants through SHO for
05.09.2017 was issued against the petitioner. Thereafter
also, non-bailable warrants could not be executed despite
making efforts for his production
r on 23.09.2017,
13.10.2017, 03.11.2017, 02.12.2017, 02.01.2018 and
17.01.2018.
7. On 23.09.2017, it was reported by the
Incharge, Police Post, Majra that service upon the petitioner
could not be effected, as he was reported not to be present
in his house for the last one year, whereupon on the same
day, i.e. 23.09.2017, an application was moved by the
respondent alongwith documents proving that the petitioner
was residing in his house within the jurisdiction of Police
Post, Majra, Tehsil Paonta Sahib.
8. Lastly, on 17.01.2018, it was reported by the
police that father of the respondent had informed that the
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petitioner had gone to Delhi in those days in connection
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with his work, who would be informed about the warrants
on his return.
9. It is in the aforesaid circumstances that the
Judicial Magistrate 1st Class was constrained to publish
proclamation under Section 82 of the Code of Criminal
Procedure requiring petitioner to appear in his Court on
26.02.2018 to answer the complaint preferred by the
respondent under Section 127 of the Code of Criminal
Procedure. Instead of appearing before the Trial Court, may
be apprehending his detention on account of his past
conduct, petitioner filed present petition on 24.02.2018 in
this Court, seeking quashing of the impugned
proclamation, which was listed in the Court on 01.03.2018.
On that day, record of the Trial Court was requisitioned with
direction that petitioner may not be arrested in pursuance
to the impugned warrant of proclamation.
10. Chapter VI of the Code of Criminal Procedure
deals with process to compel appearance, wherein a
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complete mechanism has been provided for a person,
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against whom proclamation has been published. Therefore,
the petitioner, instead of filing present petition, should have
approached the Court issuing the warrant of proclamation.
11. In view of the facts and circumstances of the
case, as discussed above, I find no illegality, irregularity,
error of exercising jurisdiction or any other infirmity with
regard to the issuance of the impugned warrant of
proclamation against the petitioner. Therefore, the
petitioner is directed to appear before the Judicial
Magistrate 1st Class, Nahan and to take recourse available
to him under law.
12. It is revealed from record that case before the
Trial Court is fixed for tomorrow, i.e. 16.03.2018. It would
not be possible to make record available to Judicial
Magistrate 1st Class by tomorrow. Therefore, the petitioner
is directed to appear before the Judicial Magistrate 1st
Class, Nahan on 23.03.2018, who shall pass an order in
accordance with law, considering the material placed
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before him, without being influenced by any observation
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made in this judgment.
13. In view of the conduct of the petitioner, he is
also directed to pay the cost of ` 5,000/- to be payable to
the respondent on or before the next date of hearing before
the Judicial Magistrate 1st Class.
14. The petition is disposed of in above terms with
further direction that the petitioner shall not be arrested till
23.03.2018 in pursuance to the impugned proclamation
warrant.
15. Registry to convey this judgment to the Trial
Court and also to return the record forthwith. A copy of this
judgment shall also be sent to respondent free of cost with
registered A.D.
16. Pending application(s), if any, also stands
disposed of.
Copy dasti.
March 15, 2018 (Vivek Singh Thakur)
(hemlata) Judge
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