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2005 DIGILAW 498 (GAU)

State of Assam v. Bir Bahadur Singh

2005-07-01

P.G.AGARWAL

body2005
ORDER P.G. Agarwal, J. 1. This suo motu revision has been initiated by this Court against the Order dated 9-5-2003 passed by the learned Judicial Magistrate; Darrang, Mongoldoi arid the subsequent order passed by the Sessions Judge, Darrang in Criminal Revision 21(D2)/2003. 2. We have heard the learned Public Prosecutor, Assam. None has appeared for the respondent although notices were duly served. 3. The facts leading to the present revision may be briefly noted :- In CR case No. 233/2002 the trial Court convicted the two accused persons Raja Ram Singh and Madan Singh under Section 447, IPC and sentenced them to pay a fine of Rs. 500/- in default further imprisonment for 15 days. The two accused persons were also 'convicted under Section 426, IPC and sentenced to pay fine of Rs. 500/- in default further imprisonment for 15 days. Feeling Aggrieved, the accused persons preferred; 'Criminal Appeal 10 (D-3)/2002 and the appellant Court affirmed the order of conviction and sentence but, however, granted time to the accused persons to deposit the fine on or before 30-11-2002. The two accused persons failed to deposit the fine within time And thereafter warrant of arrest was issued. The accused Raja Ram Singh was arrested on 19-5-2003 and produced before the Court. The other accused Madan Singh also surrendered before the Court and the total fine of Rs. 2.000/- was offered. The trial Court, however, refused to accept the fine and remanded the accused persons to jail custody to undergo the imprisonment. Feeling aggrieved, this two accused persons preferred Criminal Revision 21(D2)/2003 before the learned Sessions Judge, Darrang but the revisional Court summarily rejected the revision upholding the order of the learned Judicial Magistrate. The written complaint was filed by one Gokul Singh before this Registry and the matter was enquired into and the Registry put up a note, deferring to Section 69, IPC. Hence, the present suo motu revision was initialed. 4. In the present revision, the facts as stated above are not in dispute. The order of conviction and sentence entered into by the trial Court and affirmed by the appellate Court are also not in dispute. Hence, the present suo motu revision was initialed. 4. In the present revision, the facts as stated above are not in dispute. The order of conviction and sentence entered into by the trial Court and affirmed by the appellate Court are also not in dispute. The question that comes up for Consideration is whether the accused persons who were sentenced to pay fine and if they fail to pay fine within the time granted by the Court, can they still deposit the fine subsequently and pray that they may not be sent to jail to serve the sentence imposed for default of payment of fine. 5. Section 64 of the Indian Penal Code provides that when the order of sentence to pay fine is imposed or passed, it shall be competent for the Court to direct that in default of payment of fine, the offender shall suffer imprisonment for a certain term subject to the limitation prescribed under Sections 65, 66 and 67 of the Penal Code. Section 68 and Section 69 of the Indian Penal Code reads as follows :- "68. Imprisonment to terminate on payment of fine.- The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law. 69. Termination of imprisonment on payment of proportional part of fine.- If before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate." 6. The facts as stated above are not in dispute. We have perused the order dated 9-5-2003 passed by the learned trial Magistrate in CR. 233/2002 which reads as follows :- "9.5.03 Accused Rajaram is produced by the Police on arrest. Accused Modon Singh is also present. They filed petition No. 1246/2003 by which want to deposit an amount of fine of Rs. l.000/- each. Perused and heard both sides. It reveals from the record that the accused persons had preferred an appeal against the judgment passed by this Court. In appeal the Hon'ble Revision Judge upheld the judgment and directed the accused persons to deposit the fine amount within 30-11-2002 but. till date the accused persons have not paid any fine. l.000/- each. Perused and heard both sides. It reveals from the record that the accused persons had preferred an appeal against the judgment passed by this Court. In appeal the Hon'ble Revision Judge upheld the judgment and directed the accused persons to deposit the fine amount within 30-11-2002 but. till date the accused persons have not paid any fine. As the time allowed is exhausted long before and as it appears the accused persons have wilfully declined to pay the fine amount, the prayer of the accused persons are rejected herewith. The accused persons are remanded to jail custody to undergo in default 15 days S/l each for the each offence." 7. Feeling aggrieved, a criminal revision was preferred by the accused persons and the learned Sessions Judge disposed of the criminal revision vide order dated 17-5-2003 and affirmed the impugned order as quoted above. 8. Sections 68 and 69 clearly provides for termination of the imprisonment which takes place on depositing the fine. The imprisonment has to terminate provided it has come into existence. From the order dated 9-5-2003, as quoted above, we find that Raja Ram Singh was produced by police and the other accused Madan Singh had surrendered and at that point of time they offered to deposit the fine. The trial Court, however, refused to, accept the same under a wrong notion that as the time granted by the appellate Court to deposit the fine has expired i.e. within 30-11-2002 the accused persons are required to undergo imprisonment. It seems that the learned Magistrate was oblivious of the fact, that even then the liability to pay fine remains. The order of the appellate Court granting lime merely indicates that till that, time the accused is not to be sent to jail custody for failure to pay the line; otherwise, the accused was required to deposit the fine immediately after its imposition. The illustration to Section 69(a) leaves no room for doubt that even a part payment of the fine is allowed and the benefit of such part payment is available to the convicts. We have, therefore, no hesitation to hold that the impugned order passed by the learned trial Court as well as by the Revisional Court in interpreting the provisions of Sections 68 and 69 of the IPC are erroneous and illegal. 9. We have, therefore, no hesitation to hold that the impugned order passed by the learned trial Court as well as by the Revisional Court in interpreting the provisions of Sections 68 and 69 of the IPC are erroneous and illegal. 9. On perusal of the impugned judgment passed by the learned Sessions Judge, we find that the learned Sessions Judge has misled himself by referring to Section 424; Cr.P.C. The procedure provided for suspension of/execution of sentence of imprisonment in default to make payment of fine, cannot be resorted to when substantive provisions are provided under Sections 68 and 69 of the IPC. On the failure of the convicts to deposit the fine before the date i.e. 30-11-2002, the Court had the jurisdiction arid power to arrest the accused persons and sent them to jail custody to serve out the sentence imposed for default of payment, of tine. However, that will not take away the right and liability of the convicts to deposit the fine and if the fine is offered by them the Court was required to accept the same and release the accused persons. The Revisional Court, had observed :- "In the case in hand the accused persons were allowed time to deposit the-fine by 30-11-2002 and so they were allowed to remain on bail by this Court till that time. Not only they defaulted in payment of fine, they even did not make a petition in any Court. They came to deposit the fine only when they were arrested by police. This is totally disobedience to the order of the appellate Court. The accused persons would have never paid the fine amount if they were not arrested by Police. The act of the accused persons is nothing, but flouting justice. It would be a mockery of justice if after 10 years of the appellate Court the accused comes to the Court, pays the fine and get released it is as if Courts are totally helpless." 10. It seems that the trial Court as well as the Revisional Court were oblivious of the provisions contained under Sections 68 and 69 of the Indian Penal Code. It seems that the trial Court as well as the Revisional Court were oblivious of the provisions contained under Sections 68 and 69 of the Indian Penal Code. The trial Court was no doubt presided over by a junior judicial officer and he may not have come across any such contingency/matters, but the Sessions Judge is a senior and experienced Judicial Officer and when he was approached immediately for interference, he should have interfered into the matter and pass appropriate orders. 11. Upon consideration, we hold that the time given by the High Court or the Sessions Judges in appeal or revision for payment of fine merely means that the realisation is deferred till the time granted. However, this cannot take away the rights of the convicts as provided under Sections 68and 69 of the Penal Code. If the convict offers to deposit the fine imposed on him beyond the period provided, the Courts cannot refuse to accept the same. It must apply the provisions of Sections 68and 69 of the Penal Code. 12. In the result, the revision is allowed and the impugned order dated 9-5-2003 passed by the learned trial Magistrate and the impugned order dated 17-5-2003 passed by the learned Sessions Judge, Darrang, Mongoldoi are set aside. 13. Let a copy of this order be sent to the concerned Judicial Officers at the places where they are posted now. 14. The revision petition stands disposed of. Revision allowed