JUDGMENT Hari Swarup, J. - This petition has been filed on behalf of a prisoner who is undergoing the sentence awarded to him on his conviction in appeal by this Court. The petitioner was acquitted of the offence under Section 419 of the Indian Penal Code. On appeal by the State the acquittal was set aside and he was convicted. A Division Bench of this Court awarded the following sentence: "He is sentenced to a term of two years R.I. and a fine of Rs. 5,000 or in default to serve further for a period of one year". A writ in the nature of habeas corpus and certiorari has been prayed for. The contention of the learned counsel for the petitioner is that the sentence in lieu of fine awarded by the Court was in contravention of the provisions of Section 65 of the Indian Penal Code. He has further contended that the detention of the petitioner is bad because the warrant for lodging the petitioner in jail had not been issued in accordance with Section 425 of the Code of Criminal Procedure. 2. The authorisation under Section 64 of the Indian Penal Code about the imposition of sentence in lieu of fine runs as under: "......... It shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a "commutation of sentence". Section 65 of the Indian Penal Code places a limitation on the extent of imprisonment which may be imposed in lieu of fine. It runs as under: "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". Under Section 419 of the Indian Penal Code the maximum sentence imposable is of three years imprisonment. Accordingly, in view of Sec. 65 of the Indian Penal Code the term could not have exceeded nine months.
Under Section 419 of the Indian Penal Code the maximum sentence imposable is of three years imprisonment. Accordingly, in view of Sec. 65 of the Indian Penal Code the term could not have exceeded nine months. There is thus an obvious error in the imposition of the sentence in lieu of fine in the judgment of the Court. 3. In our opinion, the part of the judgment which runs as "or in default to serve further for a period of one year" is severable from the rest of the judgment which includes conviction and the award of sentence. As this portion is in contravention of Section 65 of the Indian Penal Code it would be in the interest of justice that this part be deleted. We are conscious of the fact that there is no power of general review of any judgment passed in a criminal case by the High Court. But the deletion of this part, in our opinion, can be done in exercise of our powers under Section 482 of the Code of Criminal Procedure which provides: "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." The purpose of all law is the doing of justice. If we do not delete that part, injustice will result; while by deleting that part we will be just removing a defect to secure the ends of justice. 4. Coming to the next argument...........Section 425 of the Code of Criminal Procedure is contained in Chapter XXXII dealing with the execution, suspension, remission and commutation of sentences. Section 425 is in Group D dealing with the general provisions regarding execution, which runs as under: "Every warrant for the execution of a sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor in office." The word 'may' in this section shows that the section is not of such a mandatory character that the warrant must be issued by a Judge of the High Court. It also shows that a person may himself go for getting the sentence executed.
It also shows that a person may himself go for getting the sentence executed. We see nothing wrong in a citizen, who has been sentenced to imprisonment, going to the Magistrate and to the Sessions Judge where the trial had started, for sending him to jail so that he may serve out the sentence. In the present case, the petitioner went to the Magistrate and before him he surrendered. The Magistrate took him in custody and sent him to jail along with a warrant issued by the Sessions Judge in whose court the trial had commenced. No doubt, technically the sentence had been passed not by the Sessions Judge but by the High Court, but in effect the High Court had by allowing the appeal only corrected the error in the judgment of the Sessions Judge. Hence if the Sessions Judge issued a warrant under Section 425 of the Code of Criminal Procedure, it cannot be deemed that the warrant was illegal and the Superintendent of the Jail was not competent to allow the petitioner to enter the jail to serve out the sentence awarded to him. 5. Even if we accept the case of the petitioner that his detention without a warrant issued by the High Court was erroneous, the result will not be at all in favour of the petitioner or in the interest of justice. It will only mean that the detention so long was not very proper and the High Court may issue a fresh warrant. That will not secure the ends of justice, rather it will go to thwart the ends of justice. We accordingly find no reason and no valid ground for holding that the petitioner's detention even after the sentence awarded by this Court is without authority of law. No writ in the nature of habeas corpus can accordingly issue. 6. The effect of deletion of the clause from the sentence awarded to the petitioner by this Court's judgment, will only be that after the petitioner has served out the sentence in accordance with the substantive, sentence of two year's R.I. awarded by the Court, he would be entitled to be released from prison.
6. The effect of deletion of the clause from the sentence awarded to the petitioner by this Court's judgment, will only be that after the petitioner has served out the sentence in accordance with the substantive, sentence of two year's R.I. awarded by the Court, he would be entitled to be released from prison. We treat this petition as a petition under Sec. 482 of the Code of Criminal Procedure and direct the deletion of the following part from the judgment of this Court delivered in Criminal Appeal No. 509 of 1974 State v. Chhagan Lal Agrawal D/d. 20-8-1979; "or in default to serve further for a period of one year". The petition in respect of other reliefs is dismissed. 7. Let a communication be sent to the Sessions Judge concerned to send necessary instructions to the Superintendent of the Jail in which the petitioner may be lodged. 8. Learned counsel for the petitioner has made an oral prayer for the grant of a certificate under Article 134 of the Constitution. We have not decided any such question of law which may need to be considered and decided by the Supreme Court. 9. It is in the special circumstances of this case that we have held that no case for the issue of a writ in the nature of habeas corpus has been made out, the certificate prayed for cannot therefore be granted. The certificate prayed for is refused. 10. Let a copy of this judgment be communicated to the petitioner.