CHHAJULAL

THE STATE OF RAJASTHAN March 17, 1972

[A. N. GROVER AND M. H. BEG, JJ.]

Indian Penal Code (Act 45 of 1860), ss. 65 and 406 and Code of Criminal Procedure (Act 5 of 1898), ss. 32 and 33-Sentence in 'default of payment of fine-Powers of Firt Class Magistr(ue.

The appellant was convk'ted by a first class Magistrate under s. 406, I.P.C., and was sentenced to tvlo ye3fs regorous imprhonment, a fine

C • of Rs. 2000/ - ahd, in default to one year's further rigorous imprisonment.

On the question of the priod of imprisonment that could be imposed in d, efault of. payment of fine.

HELD : Even if s. 65, l.P.C., could be applied the period of imprisonment in default of payn1ent of fine could not exceed nine months since an offence under ~. 406 I.P.C. is punishable with imprisonment up to th!ree years. But reading ss. 32 and 33, Cr. P.C. together the Mgis trate could not have awarded more than six months imprisonment in default of payment of fim. The terms s. 33 Cr. P.C. and s. 65 I.P.C., must therefore be harmonised.

H'!nce it must be held that while a Magistrate's power are specifically limited by section 33 Cr. P.C.· they must also be exercised so as not to contravene s. 65 I. P. C. (908 D-Gl

TherefOire, just as a First Class Magisrate trying an offence punishable under s. 406 I.P.C., cannot impose the maximum sentence of imprisonment prescribed by tte section, because his powers of awalrding imprisonment are pecifk13lly limit.ed .. to a term not exceeding two years by s. 32, Cr. P.C. so also he cannot. by resorting to s. 65 I.P.C., award a period oJ imp:rbonment in default of payment of fine, OJ! the erroll!Ous assumption tht he has the noWer to award the maximum sentence prescribed bys. 406 l.P.C. (908 G-H; 909 Al

Hence, the sentence of imprisonment in default of fine cannot exceed six months.

Reg v. Muhammad Sahib, I.L.R. 1 Mad. 277 (F.B.); Queen-- Empress v. Venkatesagadu, I.L.R. 10 Mad. 165 and E1npress of India v.

Darba, I.L.R. I All. 461, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 117 of 1971.

Appeal by Special Leave from the Order dated February 11 1971 of the Rajasthan High Court in S.B. Criminal Misc. Application No. 152 of 1971.

Sobhag Mal lain, for the appellant.

K. Baldev Mehta, for the respondent.

CllliA.JU LAL v. RA.JASTHAN (Beg, I.) 907

A 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 rig01'()Us imprisonment and a fine of Rs. 500/-, and, in default of payment of fine, to . three months further rigorous impriSonment, by the Munsif B Magistrate'of Karoli, District Bharatpur, Ra, iasthan. On an appeal by him to the Court of Sessions, his conviction was set aside,' but the Trial Court was directed to pr9ceed 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 1hen given a full opportunity, under Section 342 C Criminal Procedur~ 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. 2,0001-, 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 D 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 E Court was also rejected by the High Court: The appellant then applied under Art. 136 of the Constitution to this Court. That application was admit1ted only on 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 :

"33(1) 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 imprisonmell't 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. a~ hnprisonment' in default of payment of the. fine.

SUPREME COURT REPORTS

(1972] 3 S, C.R.·

(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 MagiSltrate J st Class which are restricted, by Section B 32, sub.s(i) (a), to imposing imprisonment for a term not exceed

ing two years and fine not. exceeding Rs. 2,000/-. R<:ading Section 32 and 33 togefuer, it was clear that, in the case before us, the Munsif Magistrate could not aw.ard more than six months imprisonment in default .of payment of fine.

In answer to the appellant's contention, based on Section 33 of l(he Criminal Procedure Code, learned Co=! for the State of Rajallthan placed Section 65 Indian Penal Code beofre us. This Section reads as follows :

"65. The term for which the Court directs the

o!j'ender to be imprisoned in default of payment of a fine D .shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the olfe.nce be punishable with finprisonment as well as 'fine".

It will be seen that even where Section 65 Indian Penal Code is applied by a Coun the term of hnprisi>nment in default of pay- E ment 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 Seotion 406 Indian Penal Code is punishable with imprisot which can extend t<J' only three years rigorous imprisonment and a fine. Thus, even if Section 65 Indian Penal Code could be applied, the period F 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 imprisonment 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 G 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. J.ust as a 1st Class Magistrate trying an offence punishable under. Seotion 406 Indian Penal Code cannor'impose the maximum amount of imprisonment prescribed by this Section, because his powers of awarding imprison II .i1ent are specifically limited to those conferred to Section 32 Criminal Procedure Code, so also he cannot, by resorting .to Section 65 lnrlian Penal C"!e, award a period of imprisonment in

CRHAJULAL V. RAJASTRAN (Beg, /,) 909

A default of payment of fine on the erroneous .assumption that he

has the power to award the maximum sentence prescribed by Sec tion 406 Indian Penal Code.

Section 6S of the Indian Ponal Code was enacted in 1860.

In 1872 Section 309 of the Criminal Procedure Code 1872 en B acted : "where a person ia scntenc.ed 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 AcC'.

It was held in Reg. v. Muhammad Saib('), that Section 309 of the Code of 1972 over-ruled the provisions of Section 65 C Indian Penal Code.

OIJ a parity of reasoning, Section 3 3 of the Criminal Procedure Code of 1898, with which we axe concerned

here, would over-ride Section 65 Indian Penal Code, or, to be more accurate, apply more specifically to Magistrates.

In Queen-Empress v. Venkatesagadu & Ors.('), it was held D that Section 33 of the Criminal Procedure Code of 1882 did not authorise a Map; istrate 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 ofthe Allahabad High Court in the Empress of India v. Dtirba & Ors.(8).

E No case has been cited before us in which an attempt was made to justify an order o{ 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 hannonised. This means that, while a Magistrate's powers are specifrcally limited by Section 3 3 Criminal Procedure r Code; they must also be so exercised as not to contravene Section

65 Indian Penal Code.

As the t.ence of one year's rip; orous 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 G 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 llhis obvious illeality and exces8 of POwet could have been corrected by the High Court when the matter was brought to its notice by means of an aPJlli cation under .Section 56IA Criminal Procedure Code.

V.P; S;

(I) l.LK 1. Mad. 277 (FB).

(2) I.LR. 10 Mad. loS.

(3) l.L.R: I All. 461 12-L!C61 Su~./72