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Cr.Mmo No. 54 Of 2018 vs Shabana Qureshi on 15 March, 2018

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

.

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

.

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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