MAYANNA Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioner had been convicted of an offence under Section 58(f) of the Mysore Prohibition Act and sentenced to one month's simple imprisonment and a fine of Rs. 500/-, in default, to one month's S. I. The petitioner underwent the substantive sentence of one month's simple imprisonment, and as he did not pay the fine of Rs. 500/-, he also suffered the sentence of one month's S. I. passed in default of payment of fine. The said judgment of the court sentencing him was passed on 12-7-1962. On 24-8-1964, that is, about two years after the petitioner had undergone the sentence of imprisonment, the trial court issued a warrant of attachment of the joint family properties of the petitions for the recovery at the fine of Rs. 500. The petitioner has come up in revision questioning the propriety of the issue of such warrant.

(2.) Sri Tilak Hegde, learned counsel on behalf of the petitioner, has questioned the propriety of the order passed by the learned Magistrate. He contends that as per the proviso to Section 386 of the Code of Criminal Procedure. If the offender has undergone the whole period of imprisonment in default,, no court shall issue a warrant unless for special reasons to be recorded in writing it considers it necessary to do so. In this case, no special reasons have been given by the learned Magistrate. He also stressed the fact that there is a delay of more than two years by the authorities in taking proceedings to recover the fine amount. He further contends that joint family properties of the petitioner cannot be attached and sold in execution of a warrant under Section 386, Cr. P. C. The court below simply held that the petitioner had sufficient properties for payment of the fine and this is not a special reason justifying the recovery of the fine two years after the petitioner had undergone the period of imprisonment in default of payment of fine.

(3.) I am of opinion that there is considerable force in the argument advanced by the learned counsel for the petitioner. The proviso to Section 386 specifically says that if the offender has undergone the period of imprisonment in default of payment of fine, no court shall issue a warrant for the recovery of the fine unless there are special reasons for doing so. The only reason given by the learned Magistrate is that the petitioner has got sufficient joint-family properties for paying the fine amount. This may be only a reason for the recovery of the amount and not a special reason justifying the issue of a warrant, particularly, two years after the petitioner has undergone the period of imprisonment. The fact that the petitioner has joint-family properties belonging to himself and his three brothers is a matter which could have been found out if only the authorises had been a little diligent in trying to recover the fine amount imposed on the petitioner. The policy of the law appears to be that in general an offender ought not to be required both to pay the fine and serve the sentence in default unless there are some special reasons justifying such action.