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Published: Fri, 02 Feb 2018
Imprisonment Power of the Executive Magistrate
In earlier times when family values and bonds were prevalent in society one could find the joint household system of society, nowadays since children decide to stay away from their parents after gaining enough knowledge to lead their life in comfort it is the disabled and helpless parents who suffer the most. This phenomenon is observed the most in case of elderly widowed women who are left to fend for themselves by their children and don’t have anyone, even their husbands to look after them. It is known that ageing parents can take recourse to the Code of Criminal Procedure, 1973 but the same is time consuming as well as expensive. As a result of this act we have been provided with a simple, speedy and limited relief to the cumbersome process of civil law. no wife, child or parent can be left beggared and destitute on the scrap-heap of society so as to be tempted to commit crime or to tempt others to commit crime regards them. 
According to the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 the term ‘maintenance’ has been defined as fooding, clothing, lodging and medical assistance. But the word should not be narrowly construed; it would include means of subsistence, supply of necessaries and conveniences aid and support. The support which one person gives to another in his/her living. Maintenance also includes medical aid and other expenses related to normal pursuit of life, so that a person can live in the manner, more or less, to which he/she is accustomed.  Maintenance varies according to the position and status of a person.  The underlying object of the Act is to compel a man to perform the moral obligation that he owes to society in respect of his parents. The primary purpose to prevent vagrancy and destitution, the magistrate has to exercise his discretion judicially in determining a claim of maintenance and fixing of amount. The discretion is not absolute or unanalyzed. Again the provision applies to all and is not an invasion of the personal law of the parties. 
Legislation in favor of such weaker sections of the society cannot be said to be offending provisions of the Constitution such as Article 14 dealing with equality. 
The researcher has tried to analyze the imprisonment power of the executive magistrate given under the Maintenance and Welfare of Parents and Senior Citizens Act, 2007. the researcher has also tried to reason as to whether the executive magistrate should at all have such powers which could infringe upon those of the judicial branch and thus of that of the Judicial Magistrate. A comparison has been made between the provisions of the Act and Section 125 of the CrPC, thus bringing out the similarities inherent in them, case laws have been analyzed in respect of the imprisonment power and the various issues surrounding it discussed therein.
SEPARATION OF EXECUTIVE AND JUDICIARY
The Criminal Procedure Code 1898 (as amended by act 19 of 1969) had made provisions for two classes of magistrates namely the Judicial and Executive Magistrates; it had also done the job of classifying their duties and responsibilities. The Judicial Magistrates had the job of going through evidence for investigation, they also had to make pronouncements for decisions which imposed punishments or penalty or detention in custody awaiting investigation. The Judicial Magistrates had the power to send a person for trial before a court or initiate an inquiry into actions deliberated upon by the accused.
The Executive Magistrate’s functions were concerned with administrative or executive matters. These matters were in the form of sanctioning of licenses, or providing the requisite permission for the prosecution or for withdrawal of the prosecution. Thus the Executive Magistrates were concerned with matters which dealt with the general law and order situation in a place and other preventive measures. On the other hand Judicial Magistrates were responsible for offences under the Indian Penal Code and other local laws.
The new Code of Criminal Procedure 1973 (Act No 2 of 1974) made provisions for session’s district in the following manner:
A Chief Judicial Magistrate
Judicial Magistrates First Class;
Judicial Magistrates Second Class; and
The Code provided for the judicial magistrates to try criminal cases and the executive magistrates were supposed to be officers of the executive branch of the state, and not the judicial branch of the state. They were endowed with specific powers, which came under the CrPC and the IPC. The executive magistrates are confered these powers by the following sections of the CrPC, sctions 107-110 and the relevant provisions, sec 133 and section 144 and the relevant provisions, sec 145 and sec 147 and the relevant provisions. Since the executive magistrates were supposed to execute administrative functions they were neither given power to try accused nor pass verdicts. An few examples of functions of the executive magistrates are the power to determine the amount of bail according to the provisions of the warrant issued against the accused, passing orders restraining people from committing a particular act or preventing persons from entering an area (Sec 144 CrPC), they are the authority to whom people are taken to when they are arrested outside the local jurisdiction, the executive magistrates are the only one’s with power to disperse a crowd or an unlawful assembly, they are authorized to use force while doing the same according to the gravity and requirements of the situation. They are assisted by the police while executing their functions, they are authorized to ask the police to use force while doing their duty, and also the measure oif the force used, for example if they are to use a baton charge or tear gad or firing. They are also permitted to take help from the armed forces while quelling a riot.
Considering the above evaluation of the judicial system it is quite clear that an executive magistrate is mainly concerned with administrative functions and so it is an anomaly for the Maintenance and Welfare of Parents and Senior Citizens Act, 2007 to give imprisonment powers to the executive magistrate, this function should ideally lie with the judicial magistrates. As a result of this amalgamation of functions the division between executive and judicial functions are getting blurred, which is not conducive for the proper functioning of the administrative and judicial machinery.
POWER OF IMPRISONMENT BY THE EXECUTIVE MAGISTRATE
In the Act the power of imprisonment has been mentioned in Section 5(8)  which is similar in all respects to section 125(3) of the CrPC,  it is different only in respect of the limitation period as to by when the aggrieved person can file an application for recovery of the amount of maintenance that is due, relying on which the Executive Magistrate can pass an order to issue a warrant for the offender. in case of the concerned Act the period is three months and the CrPC stipulates this period to be a year. Barring this dissimilarity the Act follows the provisions of the CrPC even in matters of enforcement of order of maintenance,  wherein it is stated that the Act will follow the same procedure as stated in the Code.
The researcher will be discussing the power of imprisonment of the executive magistrate with reference to the CrPC because of the similarity it shares with the Act, and also because the Act is in its nascent stage, thus making it difficult to find appropriate case laws to analyze the various issues.
The imprisonment which is awarded under sub-sec (3) of Section 125 is not a punishment for contempt of court but a means to enforce the order made under sub sec (1), if the whole or any part of the amount payable under sub-sec (1) remains unpaid ‘after execution of the warrant’ issued for recovery of the money, under the first part of the subsection. 
The words ‘after the execution of the warrant’ , however cannot mean a successful execution, because in that case, nothing would be left for enforcement of the order made under sub-section (1). It contemplates a case where the money remains unrecovered after an unsuccessful execution of the distress warrant or the warrant issued to the collector as the case may be. 
This sub-section confers on the magistrate two independent powers one to issue a warrant to levy the amount due which has to be executed in the manner laid down in the sub-section: and the other to sentence the person to imprisonment, also in the manner laid down in the sub-section. It is not correct to hold that the power to impose the sentence depend upon the issue of warrant. 
There may be circumstances in which distress warrant may not be insisted upon e.g. where the court may have been satisfied on the facts of the particular case that such an exercise may be futile.  For example when the husband avoided appearance, did not pay anything in spite of the passing of the order, resisted the petition for maintenance by leveling false charges of immorality on the part of the wife, and refused point blank to pay any maintenance, the Court was justified in ordering his imprisonment without issuing a distress warrant. 
The power of the Magistrate is in respect of the whole or any part of each month’s allowance remaining unpaid (after the execution of the warrant) to sentence the persoon to a term for not more than one month.  In other words if the default is for more than one month the imprisonment can be for as many months of default, the aggregate cannot however exceed twelve months, because under the first proviso, the claimant must apply within twelve months of the default.  According to the Madras and Calcutta High Court the imprisonment in default of payment of maintenance awarded is not limited to one month. The maximum that can be imposed is one month for each month’s arrearsand if there is a balance representing the arrears of a portion of a month, a further term of a month’s imprisonment may be imposed for such arrears. 
The language of Sec 125 (3) is quite clear and it circumscribes the power of the magistrate to impose imprisonment for a term which may extend to one month or until the payment, if made sooner. This power of the magistrate cannot be enlarged: the only remedy would be after the expiry of one month, for breach of non compliance of the order of the magistrate, the parent can approach the magistrate again for similar relief. By no stretch of imagination can the magistrate impose the sentence for more than one month.  The court had observed the following:
“The language of Sub-section (3) of Section 125 is quite clear and it circumscribes the power of the Magistrate to impose imprisonment for a term which may extend to one month or until the payment, if sooner made. This power of the Magistrate cannot be enlarged and therefore, the only remedy would be after expiry of one month, for breach of non-compliance of the order of the Magistrate the wife can approach again to the Magistrate for similar relief. By no stretch of imagination the Magistrate can be permitted to impose sentence for more than one month.”
Since the word imprisonment is not qualified by the word ‘simple’, there is nothing in this sub-section to prevent the award of a sentence of rigorous imprisonment in proper cases.  Sec 67 of the IPC cannot be applied to Sec 125 (3) because the latter provision does not relate to an ‘offence’ punishable to fine only, but provides for the recovery of money due under Section 125(1) in the same manner as for recovering of fines.
In default of payment of arrears of maintenance, the husband can be sent to jail. But this is only a mode of recovery and not a substitute for recovery. The Supreme Court has held that the husband could not be absolved of his liability merely because he was made to go to jail. Sentencing a person to jail was a mode of ‘enforcement’ and not a mode of ‘satisfaction’. The Supreme Court held that the liability could be satisfied only by making actual payment of arrears and maintenance.  The court had observed the following:
“A distinction has to be drawn between a mode of enforcing recovery on the one hand and effecting actual recovery of the amount of monthly maintenance allowance which has fallen in arrears on the other. Sentencing a person to jail is a `mode of enforcement’. It is not a `mode of satisfaction’ of the liability. The liability can be satisfied only by making actual payment of the arrears. The whole purpose of sending to Jail is to oblige a person”
The High Court of Punjab and Haryana held that the court could not pass the order of arrest without resorting to coercive measures provided under section 421 like attachment of property.  Issuance of a distress warrant is a condition precedent for exercise of the power to pass a sentence to imprisonment in normal circumstances u/s 125(3) CrPC although the issue of simultaneous warrants i.e distress warrant and warrant of arrest of the husband is not permissible, yet the parent cannot be made to wait till the process of execution of distress warrant as visualized by sec 421 CrPC comes to an end, and a magistrate can issue a body warrant for arresting a defaulter. 
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