STATE Vs. KRISHNA PILLAI AND MADHAVAN PILLAI

JUDGEMENT

(1.) The State has filed this petition to rectify certain illegalities concerning the sentence the learned Additional Sessions Judge of Quilon passed against accused 1 in Sessions

(2.) The judgment was pronounced on 31st October 1951 but this petition has been filed only on 11-10-1952. The State obtained a certified copy of the judgment so early as 5-1-1952. Notice of the petition was given to the accused who is still serving his sentence in the Central Jail but he was not represented before us nor had he asked for any arrangement to be made for him to be present in court at the hearing. The application purports to be under S.561A, Criminal Procedure Code and Art.227 of the Constitution.

(3.) The proper course for the State to rectify the errors in the judgment was to invoke the revisional jurisdiction of this court or to cause a reference to be made to this court by the appropriate court. While we do not desire to attempt here to define the extent or the limits of our jurisdiction under S.561A or Art.227 we do not hesitate to say that we do not feel satisfied that this is a proper case where the extraordinary jurisdiction under either provision should be invoked to correct the errors pointed out. The State could have got them rectified by suitable action in proper time. No explanation is given for the failure to do that or for the inordinate delay made to file this petition. There remains only four days for the full term of one year to expire. The jurisdiction of the Trial Court to impose a sentence of imprisonment in default of payment of fine is merely permissive. It is not imperative to award a term of imprisonment in default of payment of a fine. S.64 of the Penal Code (S.53 of the Travancore Code) only states that it shall be competent to the court to impose a sentence of imprisonment for nonpayment of fine. Further, imprisonment in default of payment of fine does not liberate an accused person from his liability to pay the fine imposed on him. Such imprisonment does not serve as a discharge or satisfaction of the fine, but is imposed as a punishment for non payment. The fine would remain alive for collection for six years after the passing of the sentence. Assuming the accused counter petitioner has no means now to pay the same, it can be recovered from any property acquired by him within the period specified. Even his death will not discharge from the liability any property which would, after his death be legally liable for his debts. (S.70, Penal Code corresponding to S.59 of the Travancore Penal Code). Regard being bad to these considerations we do not think it necessary or proper to interpose an order now which will have the effect of extending the period of the counter petitioner's incarceration in jail by a further period of three months. It is really improper for a Trial Court to impose a heavy fine on a person who has not the means to pay it.