minal Appeal No 117 of 1971
Appeal by Special Leave from the Order dated February 11 1971 of the Rajasthan High Court in SB Criminal Misc
Application  No 152 of 1971
Sobhag Mal Jain for the appellant
K Balder Mehta for the respondent
907 The Judgment of the Court was delivered by Beg J
The appellant was convicted under Section 406 Indian Penal Code and sentenced to six month s rigorous impnsonment and a find of Rs 500  and in default of payment of fine to three months further rigorous imprisonment by the Munsif Magistrate of Karoli District Bharatpur Rajasthan
On an appeal by him to the Court of Sessions his conviction was set aside but the Trial Court was directed to proceed with the case afresh from the stage at which the appellant should have been properly examined under Section 342 Criminal Procedure Code
The appellant was then given a full opportunity under Section 342 Criminal Procedure Code to explain the facts and circumstances appearing against him in the case
Thereafter he also produced five witnesses in defence
He was however convicted again and sentenced to two years rigorous imprisonment and to pay fine of Rs 2000  and in default to undergo one year s further rigorous imprisonment
The appellant again appealed to the Court of Sessions which dismissed his appeal
The appellant then filed a Revision application which was dismissed summarily by the High Court of Rajasthan
Soon after that the appellant made another attempt to invoke the inherent jurisdiction of the High Court by applying under Sec
561A Criminal Procedure Code to get at least an illegality in the sentence corrected but this also failed
A prayer for a certificate of fitness of the case to appeal to this Court was also rejected by the High Court
The appellant then applied under article 136 of the Constitution to this Court
That application was admitted only an the question of the period of imprisonment awarded in default of payment of fine
It is this question only which has been argued before us
Section 33 of the Criminal Procedure Code runs as follows 331 The Court of any Magistrate may award such terms of imprisonment in default of payment of fine as it authorised by law in case of such default Provided that a the term is not in excess of the Magistrate s powers under this Code b in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence the period of imprisonment awarded in default of payment of the fine shall not
exceed one fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine 908 2 The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 32
The Munsif Magistrate who convicted the appellant had the powers of a Magistrate 1st Class which are restricted by Section 32subs1 a to imposing imprisonment for a term not exceeding two years and fine not exceeding Rs 2000 
Reading Section 32 and 33 together it was clear that in the case before us the Munsif Magistrate could not award more than six months imprisonment in default of payment of fine
In answer to the appellant s contention based on Section 33 of the Criminal Procedure Code learned Counsel for the State of Rajasthan placed Section 65 Indian Penal Code before us
This Section reads as follows 65
The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one fourth of the term of imprisonment which is the maximum fixed for the offence if the offence be punishable with imprisonment as well as fine
It will be seen that even where Section 65 Indian Penal Code is applied by a Court the term of imprisonment in default of payment of fine cannot exceed one fourth of the term of imprisonment which is the maximum period which can be awarded for an offence of which an accused is convicted
An offence under Section 406 Indian Penal Code is punishable with imprisonment which can extend to only three years rigorous imprisonment and a fine
Thus even if Section 65 Indian Penal Code could be applied the period of imprisonment in default of payment of fine could not exceed nine months
It is clear that Section 65 only fixes a maximum period of imprisotiment which can be awarded for default of payment of fine whenever any court convicts
On the other hand Section 33 Criminal Procedure Code governs specifically the powers of 1st Class Magistrates on this matter
Section 33 Criminal Procedure Code also contains the principle embodied in Section 65 Indian Penal Code in its application to Magistrates
Just as a 1st ClassMagistrate trying an offence punishable under Section 406 Indian Penal Code cannot impose the maximum amount of imprisonment prescribed by this Section because his powers of awarding imprisonment are specifically limited to those conferred to Section 32 Criminal Procedure Code so also he cannot by resorting to Section 65 Indian Penal Code award a period of imprisonment in 909 default of payment of fine on the erroneous assumption that he has the power to award the maximum sentence prescribed by Section 406 Indian Penal Code
Section 65 of the Indian Penal Code was enacted in 1860
In 1872 Section 309 of the Criminal Procedure Code 1872 enacted  where a person is sentenced to fine only the Magistrate may award such terms of imprisonment in default of payment of fine as is allowed by law provided that the amount does not exceed the Magistrate s powers under this Act
It was held in Reg
vs Muhammad Saib1 that Section 309 of the Code of 1972 over ruled the provisions of Section 65 Indian Penal Code
On a parity of reasoning Section 33 of the Criminal Procedure Code of 1898 with which we are concerned here would over ride Section 65 Indian Penal Code
or to be more accurate apply more specifically to Magistrates
In Queen Empress vs Venkatesagadu  Ors
2 it was held that Section 33 of the Criminal Procedure Code of 1882 did not authorise a Magistrate to pass sentence in default of payment of fine in excess of the term prescribed by Section 65 Indian Penal Code
Here reliance was placed upon a decision of Full Bench of the Allahabad High Court in the Empress of India vs Darba  No case has been cited before us in which an attempt was made to justify an order of a Magistrate whose jurisdiction to punish is limited by Section 33 Criminal Procedure Code by applying Section 65 Indian Penal Code
It is obvious that the two Sections must be harmonised
This means that while a Magistrate s powers are specifically limited by Section 33 Criminal Procedure Code they must also be so exercised as not to contravene Section 65 Indian Penal Code
As the sentence of one year s rigorous imprisonment in default of payment of fine passed by the Munsif Magistrate was in excess of his powers we allow this appeal to the extent that we reduce only the sentence of one year s rigorous imprisonment awarded in default of payment of fine to six months rigorous imprisonment The rest of the sentence which is quite legal must stand
We may observe here that it would have been better if this obvious illegality and excess of power could have been corrected by the High Court when the matter was brought to its notice by means of an application under Section 561A Criminal Procedure Code
VPS 1 ILR 1 mad
277 FB
2 ILR 3 ILR 1 All


Summary:
The appellant was convicted by a first class Magistrate under section 406 IPC and was sentenced to two years regorous imprisonment a fine of Rs 2000 and in default to one year s further rigorous imprisonment
On the question of the period of imprisonment that could be imposed in default of payment of fine HELD  Even if section 65 IPC could be applied the period of imprisonment in default of payment of fine could not exceed nine months since an offence under section 406 IPC is punishable with imprisonment up to three years
But reading sections 32 and 33 Cr
PC together the Magistrate could not have awarded more than six months imprisonment in default of payment of fine
The terms section 33 Cr
PC and section 65 IPC must therefore be harmonised
Hence it must be held that while a Magistrate s power are specifically limited by section 33 Cr
PC they must also be exercised so as not to contravene section 65 IPC 908 D G Therefore just as a First Class Magistrate trying an offence punishable under section 406 IPC cannot impose the maximum sentence of imprisonment prescribed by the section because this powers of awarding imprisonment are Specifically limited to a term not exceeding two years by section 32 Cr
PC so also necessary  by resorting to section 65 IPC award a period of imprisonment in default of payment of fine on the erroneous assumption that he has the power to award the maximum sentence prescribed by section 406 1 P C 908 G H 909 A Hence three sentence of imprisonment in default of fine cannot exceed six months
Reg vs Muhammad Sahib ILR  Queen Empress vs Venkatesagadu 1
L R and Empress of India vs Darba ILR
I All 461 referred to