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2017 DIGILAW 937 (JK)

Paramjeet Singh v. State of J&K

2017-10-12

SANJAY KUMAR GUPTA

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JUDGMENT : Sanjay Kumar Gupta, J. 1. In this petition, the petitioner inter alia seeks quashment of order dated 30th September, 2009 passed by the Chief Judicial Magistrate, Jammu, by which the Hon'ble Court has sent the petitioner to District Jail, Jammu in compliance of the execution of warrant of rigorous imprisonment. The facts giving rise to the filing of the petition briefly stated are that on 19th September, 1986, the petitioner was involved in a case and an FIR was registered against him vide FIR No. 474/1986 under Sections 454 and 380 RPC. The challan was presented arid the petitioner was convicted by the Trial Court to undergo rigorous imprisonment with a fine of Rs. 5,000/-. The petitioner filed an appeal against the order and the Hon'ble Court vide order dated 02nd June, 2000 disposed of the appeal with the directions to the petitioner that he shall pay a fine of Rs. 5,000/- and the fine would be deposited with the Registrar Judicial within the period of four months from the date of the order. 2. The petitioner has no knowledge whether the family has deposited the amount and he was released from the Jail. It is pertinent to mention herein that it is mentioned in the order that in case, the fine is not deposited within stipulated period, then the appellant shall undergo rigorous imprisonment of one year. Thereafter, the file was sent to the Court of Chief Judicial Magistrate, Jammu. The petitioner has also no knowledge about any proceeding, as he has not received any notice and he was under this impression that the family has deposited the amount. That is the reason, he was released from 13th June, 1995. Moreover, a copy was not given to the petitioner/appellant and released docket/order was only issued to the concerned Jail Authority for releasing the petitioner/appellant. 3. The Police of Police Station, Bari Brahmana, Jammu came to the house of the petitioner in an execution of warrants for recovery and the petitioner had deposited that amount of fine with the Police and the SHO, Police Station, Bari Brahmana, Jammu deposited the fine of Rs. 5,000/- in the Court of Chief Judicial Magistrate, Jammu vide Receipt No. 0946093 (Annexure-B) dated 04th June, 2009. 5,000/- in the Court of Chief Judicial Magistrate, Jammu vide Receipt No. 0946093 (Annexure-B) dated 04th June, 2009. The file came up before the Chief Judicial Magistrate on 30th September, 2009 and the Hon'ble Court had mentioned that the report received from the Hon'ble High Court reveals that the offender did not deposit the amount of fine, as directed. So, he has to suffer rigorous imprisonment of one year, as has been ordered by the Hon'ble Court. 4. The rigorous imprisonment for undergoing the sentence be issued and forwarded to the Incharge District Jail, Jammu for execution. At this stage, the offender has submitted that the Police has already recovered from him and deposited an amount of Rs. 5,000/- with the Court on 04th June, 2009, but the same not in conformity with the order of the Hon'ble High Court. So the amount deposited be returned to the offender and the imprisonment, if any, already undergone shall be deducted from the sentence. It is pertinent to mention herein that the petitioner remained in Jail custody during the Trial from 25th November, 1986 to 11 February, 1987. Moreover, he has already deposited the amount, even then the Hon'ble Court has sent him to Jail. 5. Under the provisions of Section 388 of Criminal Procedure Code when the offender has sentenced to fine only and two imprisonment in default of payment of fine, the Hon'ble Court has power to order the pay fine in full or before the date not more than 30 days from the order in 2/3 installments and even suspend the sentence, if the offender execute the bond with or without surety. In the present case, the petitioner was under this impression that the amount has already been deposited. Moreover, till 04th June, 2009, he had not received any warrants. It was only on 04th June, 2009, when the warrants were received, the petitioner deposited the amount of fine with the Police. So, it was not the fault of the petitioner. The petitioner and his wife are illiterate and the petitioner has given the money and under this impression that this fine, which is to be deposited. Moreover, from 2000 to 2009, the petitioner had not received any warrant. The petitioner has challenged the order amongst the following grounds:- (i) The order is against the facts and law. So, the same is not sustainable. Moreover, from 2000 to 2009, the petitioner had not received any warrant. The petitioner has challenged the order amongst the following grounds:- (i) The order is against the facts and law. So, the same is not sustainable. (ii) From February, 2000, the petitioner had not received any summons or notice. It was only on 04th June, 2009, when a warrant was received, he deposited the amount with the police, which is clear from the record while under the provisions of Section 388 of the Cr.P.C. the Hon'ble Court has power to give time or also take bond from the offender, but in the present case, it is recorded that from 2000 to 2009, no warrant was issued against the petitioner and it was only on 04th June, 2009, when he came to know about the non-deposit of the fine, he deposited the same. The petitioner is suffering because of lapse of some other person, as he is not an educated person and is an illiterate person. So, the order is not sustainable. (iii) The Hon'ble Court has only mentioned that the petitioner has not deposited the amount as per time given by the Hon'ble High Court. So, in compliance of the Hon'ble High Court order that the petitioner has to go one year rigorous imprisonment while under the provisions, there is nothing on the record, which can show that any warrant has been issued while under the provisions of law and under Section 388 of the Cr.P.C. one month time has to be given after the expiry of the period specified and in the present case, this has not been done. So, the order is not sustainable. (iv) The order is not sustainable because under the provisions of law, the Court has a power to postpone the payment of fine and if a person subsequently deposits the fine amount with the Court, the Court should not sent the petitioner to the judicial lock up because moment fine was deposited in the Court and the default imprisonment cannot be imposed. In the present case, since the petitioner has deposited the amount on 04th June, 2009 with the Police, which was, in turn, deposited with the Court of learned Chief Judicial Magistrate, Jammu and hence, at this stage, the impugned order passed, by which the petitioner has been sent to the judicial lock up to undergo rigorous imprisonment of one year in default of payment of fine is wholly illegal and against the express provisions of law. 6. Learned counsel for the petitioner has submitted that the impugned order is against the law and the same deserves to be set aside. 7. I have considered the contentions of learned counsel for petitioner. This petition is pending since 8 years. Facts of matter is that petitioner was convicted and was sentenced to undergo imprisonment for one year and fine of Rs. 5000/- by court below in FIR No. 474/1986 u/s. 454/380/RPC for commission of crime on 19.9.1986. He filed Cr. 1st Appeal No. 17/1995, which was disposed off on 2.6.2000 with direction to petitioner to deposit fine of Rs. 5000/- only within one month before Registrar Judicial failing which he shall undergo imprisonment awarded by court below. Petitioner did not deposit the fine, so warrant of arrest was issued by court below and was sent to judicial custody for undergoing rest of imprisonment. 8. This court on 14.10.2009 while entertaining the petition has granted bail to petitioner, as he was sent to judicial custody by CJM Jammu because he failed to deposit the fine of Rs. 5000/- as per order of this Court. It is also a case of petitioner that police has already recovered fine of Rs. 5000/- from him and same has been deposited vide treasury receipt No. 0946093, dated 4.6.2009. 9. The explanation given for non depositing of fine as averred is that he has no knowledge whether the family has deposited the amount and he was released from the Jail; that it was mentioned in the order that in case, the fine is not deposited within stipulated period, then the appellant shall undergo rigorous imprisonment of one year; that thereafter the file was sent to the Court of Chief Judicial Magistrate, Jammu; petitioner has also no knowledge about any proceeding, as he has not received any notice and he was under this impression that the family has deposited the amount. Petition is supported with affidavit. Petition is supported with affidavit. So I am of the view that delay has been explained by cogent means. 10. Petitioner has already paid fine. The occurrence is pertaining to year 1986, since 31 years. So in the interest of justice, it would be proper to accept the fine though at belated stage. No prejudice shall be caused to anyone. Petitioner is married person and is about 50 years. At this stage, if he is sent to jail, his family will suffer loss to their reputation. In similar case, where accused failed to pay the fine within stipulated time Allahabad High Court in case titled Shambhu Dayal v. State reported in 1979 All. LJ 822, it has been held that under section 424 Cr.P.C. if court suspends its order to pay fine and grant time to accused to pay fine within some time, then he cannot be arrested. Hence in view of above, the order of CJM for sending him to jail for undergoing imprisonment is set aside. Fine deposited is accepted. This petition is disposed of accordingly.