The court issued regular bail to a petitioner under Section 439 Cr.P.C. Despite pending maintenance arrears, it held the High Court cannot act as an execution court and granted bail given the six-month pre-arrest imprisonment and lengthy magisterial trial.
Petitioner released on regular bail to the satisfaction of the summoning Court.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl. Misc.-M No. 29070 of 2011 (O&M) -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc.-M No. 29070 of 2011 (O&M) Date of decision: February 16, 2012.
Chander Shekhar
... Petitioner(s)
v.
Shivani and another
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri HPS Bhinder, Advocate, for the petitioner.
Shri Sham Lal Bhalla, Advocate for respondent No.1. Ms. Jaspreet Kaur, Assistant Advocate General, Punjab.
Kanwaljit Singh Ahluwalia, J. (Oral):
Present petition has been filed under Section 439 Cr.P.C. for the grant of regular bail to the petitioner who has been arrayed as an accused in complaint case No.10 dated 28.2.2007 instituted by Shivani, wife of the petitioner. Complaint has been filed for offences under Sections 406, 498-A, 114, 352, 506 read with Section 34 IPC.
It is not disputed that the petitioner has been summoned in a private complaint by the court of Chief Judicial Magistrate, Fatehgarh Sahib. It is a case of magisterial trial. The petitioner has already remained behind the bars approximately for a period of six months. The court of a Magistrate cannot award sentence of more than three years.
It is stated that vide Crl. Misc. No.51785 of 2011, the petitioner
Crl. Misc.-M No. 29070 of 2011 (O&M) -: 2 :-
has been released on interim bail by a Coordinate Bench on 13.10.2011. On December 20, 2011, a Coordinate Bench had directed the petitioner to pay all the arrears of the maintenance which have been awarded in favour of the wife under Section 125 Cr.P.C. It is also noted in the order dated 20.12.2011 that the petitioner husband had paid bank draft of Rs.25,000/- to the aggrieved wife.
Shri Sham Lal Bhalla, Counsel appearing for the complainant, has stated that the petitioner, till today, has not cleared all the arrears of maintenance which have accrued to the respondent-wife under Section 125 Cr.P.C.
This Court is of the view that in a petition under Section 439 Cr.P.C., which is for the grant of regular bail, this Court cannot act as an executing court to the proceedings under Section 125 Cr.P.C. There is an enabling provision under Chapter IX of the Code of Criminal Procedure whereby husband can be taken to task for not paying the amount of maintenance.
Be that as it may, since the petitioner has remained behind the bars for six months as an under-trial, this Court is of the view that the petitioner is entitled to the grant of regular bail, especially when in a case of magisterial trial, the trial will take a long time to conclude.
Hence, present petition is accepted and the petitioner is ordered to be released on bail to the satisfaction of the summoning Court.
February 16, 2012. kadyan
[ Kanwaljit Singh Ahluwalia ] Judge
2 issues framed by the court
Whether the High Court may grant regular bail to an under-trial accused in a magisterial trial amidst pendency of maintenance proceedings under Section 125 Cr.P.C.
Whether the High Court can act as an executing court for recovery of maintenance arrears while deciding a bail petition.
3 provisions across 2 enactments
Chander Shekhar
Shivani
another
Kanwaljit Singh Ahluwalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
