CRIMINAL REFERENCE NO 2 OF 1987 Vs. STATE

JUDGEMENT

(1.) Reference is at the instance of Chief Judicial Magistrate, Palghat. Judicial Magistrate of First Class, Pattambi in C. C. 18/87 sentenced the accused to pay a fine of Rs. 750/- with a default sentence of 15 days. Set off was allowed for period spent in custody. In Calender, Chief Judicial Magistrate pointed out the illegality in the order and invited the attention of the magistrate to S.428 of the Code. Trial magistrate then pointed out that even in the case of default sentence, set off is permissible, referring to the decision in B. P. Andre v. Superintendent, Central Jail, Tihar ( AIR 1975 SC 164 ). The magistrate missed the amendment to S.428 of the Code introduced by Act 45/78 with effect from 18-12-78. The decision cited by the magistrate was before the amendment. The amendment made it clear that set off will be available in cases "not being (cases of) imprisonment in default of payment of fine". Clause.32 of the Bill published in Gazette of India, Extraordinary, Part.2, S.2, page 597 dated 15-5-1978 states that there was doubt on the question whether the period of imprisonment referred to in S.428 will apply to the imprisonment in default of payment of fine and that S.428 was being amended to clarify that it would not apply to imprisonment in default of payment of fine. Decision in Bhagirath v. Delhi Administration ( AIR 1985 SC 1050 ) also makes the position clear. In this view, the stand taken by the Judicial First Class Magistrate is clearly untenable and he should have paid heed to the noting in the Calender by the Chief Judicial Magistrate and noticed the amendment. Set off is not available in cases of imprisonment, in default of payment of fine. Reference is answered accordingly. I record appreciation of the help rendered by Shri N. A. Muraleedharan, as amicus curiae.