Application under Section 482 CrPC to quash a distress warrant issued for maintenance arrears rejected due to significant outstanding dues; applicant advised to seek partial payment before lower court.
None; applicant directed to approach lower court for part payment of arrears.
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GAHC010034402023
THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/120/2023
RAFIQUL HUSSAIN@RAFIKUL S/O- LATE HAIDAR ALI, R/O- VILL- DEHAJAN, P.S- DEMOW, DISTSIVASAGAR, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM
2:MOON AFTER AHMED D/O- DADU AHMED R/O- VILL- BOLIAGHAT P.O- KONWARPUR P.S- AND DIST- SIVASAGAR ASSAM PIN- 78566
Advocate for the Petitioner : MR. U SAIKIA
Advocate for the Respondent : PP, ASSAM
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BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA
ORDER
Date : 02.05.2023
Heard Mr. U. Saikia, learned counsel for the applicant. Also heard Mr. D. Das, learned Additional Public Prosecutor for the State respondent.
It reveals from the Office Note dated 03.04.2023 that service report in respect of respondent No. 2 is still awaited.
This is an application filed under Section 482 of the Code of Criminal Procedure, 1973, praying for setting aside and quashing the impugned order dated 30.01.2023, passed by the learned Sub-Divisional Judicial Magistrate, Sivasagar, whereby, the learned Sub-Divisional Judicial Magistrate, Sivasagar, issued distress warrant against the present applicant for realizing the arrear amount of maintenance passed in Misc. Case No. 02/2019.
It is submitted by the learned counsel for the applicant, Mr. U. Saikia, that on 30.01.2023, the applicant could not appear before the Court of learned SubDivisional Judicial Magistrate, Sivasagar, when the application was moved on his behalf, due to his spondylities and the learned Court below passed the order for issuance of distress warrant against the present applicant for realizing the entire arrear amount of maintenance. Further it is submitted that the applicant is ready to make some part of payment, however prayed for setting aside and quashing the order dated 30.01.2023, passed by the learned Sub-Divisional
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Judicial Magistrate, Sivasagar, whereby, the learned Court below had passed the distress warrant against the present applicant.
Considering the submission of the learned counsel for the applicant as well as the materials available in the record, I do not find it justified to pass any order on recalling the distress warrant issued by the learned Sub-Divisional Judicial Magistrate, Sivasagar, as it reveals that huge amount of arrear is due by the present applicant. However, the applicant may approach the learned Court below with a petition for part payment of the arrear amount and that may be considered by the learned Court below in accordance with law.
With the above observation, the present Interlocutory Application stands disposed of.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether the distress warrant issued for realization of maintenance arrears should be set aside or quashed.
Whether the applicant is justified in seeking recall of the warrant despite huge arrear amounts.
1 provisions across 1 enactments
Rafiqul Hussain@Rafikul
The State of Assam
Moon Ahmed
Mitali Thakuria
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
