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PETITIONER: CHHAJULAL

       Vs.

RESPONDENT: THE STATE OF RAJASTHAN

DATE OF JUDGMENT17/03/1972

BENCH: BEG, M. HAMEEDULLAH BENCH: BEG, M. HAMEEDULLAH GROVER, A.N.

CITATION:  1972 AIR 1809            1972 SCR  (3) 906  1972 SCC  (3) 411

ACT: 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  First Class Magistrate.

HEADNOTE: The  appellant  was convicted by a  first  class  Magistrate under  s.  406,  I.P.C.,  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 s. 65, I.P.C., could be applied the period of imprisonment in default of payment of fine could not  exceed nine  months  since  an  offence  under  s.  406  I.P.C.  is punishable with imprisonment up to three years.  But reading ss.  32 and 33, Cr.  P.C. together the Magistrate could  not have awarded more than six months imprisonment in default of payment  of  fine.   The terms s. 33 Cr.   P.C.  and  s.  65 I.P.C., must therefore be harmonised.  Hence 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-G] Therefore,  just  as  a First  Class  Magistrate  trying  an offence  punishable under s. 406 I.P.C., 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 s. 32,  Cr.   P.C. so also necessary , by resorting  to  s.  65 I.P.C., 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 s. 406 1  P   C. [908 G-H; 909 A] Hence,  three  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, 1. L. R. 10 Mad. 165 and  Empress of India v. Darba, I.L.R. I All. 46.1, referred to.

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JUDGMENT: 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 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. 2,000/-,  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 Art. 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 "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  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  32,sub.s(1)  (a),- to imposing imprisonment  for  a term  not  exceeding two years and fine  not  exceeding  Rs.

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2,000/-.   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  Class,Magistrate  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. v. Muhammad Saib(1), 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  v. 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 v. Darba &

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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. V.P.S. (1) I.L.R. 1 mad. 277 (FB). (2) I.L.R. 10 Mad. 165. (3) I.L.R. 1 All. 461. -L1061 Sup./72 910