RAM SAHAI Vs. STATE

JUDGEMENT

(1.) CRIMINAL Revision No. 1483 of 1971 is directed against the order of conviction and sentence passed by the Additional District and Sessions Judge in criminal appeal No. 23-6 of 1970. Criminal revision no. 1482 of 1971 is directed against the order passed by Judicial Officer, Bareilly, rejecting the application of the applicants for depositing the full amount of fine and the order passed by the 2nd Temporary Civil and Sessions Judge, Bareilly, in Criminal Revision No. 19 of 1971. Since common questions of fact and law are involved in both these revisions they are being disposed of by a common judgment.

(2.) THE applicants were convicted under Section 325/34 Indian Penal Code and were sentenced to six months Rigorous Imprisonment. They were also convicted under Section 323/34, Indian Penal Code and were sentenced to three months' R. I. by the Judicial Magistrate, Bareilly, On appeal preferred by the applicants the sentence was altered from imprisonment to fine of Rs. 100/- each for the conviction under Section 325/34, Indian Penal Code and Rs. 50/- each for the conviction under Section 323/34, Indian Penal Code. It was also ordered by the Appellate Court below that Out of the fine realised the amount of Rs. 300/- shall be paid to the injured persons equally. It was further ordered that the fine shall be paid within 15 days from the date of order failing which the order of sentence of imprisonment pased by the learned Magistrate would stand. The present applicants moved an application on 21st January, 1971, for 15 days' time to pay the fine which was rejected. The Judicial Magistrate ordered on 27th January, 1971, for taking steps to make the applicants undergo the imprisonment. Against this order of 27th January, 1971, Criminal Revision No. 19 of 1971, was preferred Which was rejected on 30th July, 1971. Against that order Criminal Revision No. 1482 of 1971, has been preferred. The applicants have also preferred Revision No. 1483 of 1971 against the order of the appellate court below in Criminal Appeal No. 236 of 1970 being aggrieved by that part of the order of 7th January, 1971, whereby it was ordered that fine should be paid within 15 days of the date of order failing which the order of sentence passed by the learned Magistrate shall stand.

(3.) THE learned Counsel for the applicants submitted that this part of the order of the appellate court below dated 7th January, 1971, is illegal inasmuch as the court had no jurisdiction to fix any time limit within which the fine was to be paid and further impose a condition that on failure of payment of fine within the stipulated period the order of sentence of imprisonment passed by the learned Magistrate shall stand. There is force in this contention. Section 423 of the Code of Criminal Procedure deals with the power of appellate court in disposing of an appeal, Sub-clause (b) of sub-sect. (1) of Section 423 provides that the Appellate Court may in an appeal alter the nature of the sentence with or without altering the findings. The punishments to which offenders are liable under the Indian Penal Code are mentioned in Section 53 of that Code. Imprisonment and fine are, inter alia, the punishments to which an offender may be liable. The subsequent sections of the Indian Penal Code deal, inter alia, with the imposition of fine and in default of payment thereof the provision is also made for imposing punishment of imprisonment. Section 68, Indian Penal Code provides that the imprisonment which is imposed in default of payment of fine shall terminate whenever that fine is either paid or levied by process of law. Section 69 of the said Code stipulates that if, before the expiration of the -term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate. There is thus a power with the Appellate Court to alter the punishment of imprisonment to the punishment of fine. While imposing punishment of fine the court may also order that in default of payment of fine the offender shall have to undergo imprisonment for a specific period and when such a default clause is introduced in the order it is subject to the provisions of Sections 68 and 69 of the Indian Penal Code. There is, however, no provision either in the Indian Penal Code or in the Code of Criminal Procedure giving power to the Appellate Court to fix a time limit within which the fine is to be paid and further to impose a condition that in case the fine is not paid within the stipulated period the sentence of fine shall stand altered to sentence of imprisonment. That part of the order of the Additional District and Sessions Judge whereby he ordered that the fine shall be paid within 15 days failing which the sentence of imprisonment passed by the learned Magistrate shall stand is clearly without jurisdiction and illegal. Hence, it cannot be maintained.