BRAHAMESHWAR PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) BOTH these revision applications arise out of a common order and involve the same points. Therefore, they have been heard together and the order will govern them both.

(2.) THE relevant facts are these: Brahameshwar Prasad Sinha is the petitioner in Criminal Revision No. 61 of 1976 (R) while Banarsi Lal Kohli is the petitioner in Criminal Revision No. 61 of 1976 (R). Both these petitioners along with others, were tried for various offences which are 'schedule offences' within the meaning of the expression as used in the Criminal Law Amendment Ordinance 1954 (hereinafter called the 'Ordinance'). During the pendency of the investigation of the offences, various properties belonging to the petitioners and other accused were attached by the order of the District Judge passed under the aforesaid Ordinance. The trial ended in the conviction of these petitioners and other accused persons. By the order of conviction and sentence of the Special Judge which was passed on 24 -7 -1964 each of the petitioners was sentenced to rigorous imprisonment for three years and also to pay a fine of Rs. 30,000/ - and in default to rigorous imprisonment for six months more. In addition, petitioner Brahameshwar Prasad Sinha was sentenced to pay a fine of Rs. one lac while petitioner Banwari Lal Kohli was sentenced to pay a fine of Rs. 30,000/ -. Both these petitioners preferred appeals against the aforesaid order of convictions and sentences in this Court. This Court while admitting the appeals enlarged the petitioners on bail and also stayed realisation of the fines imposed subject to the condition regarding furnishing of security. Ultimately, by its order dated 24 -3 -1967 the appeals preferred by the petitioners were dismissed by this Court. Against that order of this Court dismissing their appeals, the petitioners preferred appeals to the Supreme Court by special leave. The Supreme Court while granting special leave and admitting the appeals, enlarged the petitioners on bail and also stayed the realisation of the fine imposed. Ultimately by its order dated 7 -9 -1971 the Supreme Court dismissed the appeals filed by the petitioners subject to the modification in the sentences imposed upon the petitioners. The sentences imposed on Brahameshwar Prasad Sinha and Banarsi Lal Kohli were reduced respectively to Rs. 20,000/ - and Rs. 30,000/ -. The Supreme Court while reducing the fines imposed, ordered that the petitioners, in default of payment of fines, would have to undergo rigorous impriment for six months more. For the purposes of this case, it is not necessary to refer the modification in the sentences of imprisonment or those in default of payment of fine imposed on the petitioners.

(3.) A rejoinder was filed to that petition by the State of Bihar urging that the realisation of fine was not barred by limitation, inasmuch as, the order of the court below with regard to the fine had merged in the order of the Supreme Court passed on 7 -9 -71 and that order of the Supreme Court had to be executed and not the order of the lower court and also that the convicted persons having got the order for realisation of fine stayed, the period during which realisation of fine was stayed, must be excluded in computing the period of limitation. The question arose whether the condition imposed by this Court while granting stay of realisation of fine had been complied with and the State was asked to adduce evidence. It appears that on 18 -12 -76 the Government Pleader had also filed a petition under Section 13 (1) of the Ordinance before the District Judge. Ultimately, by his order dated 2 -3 -76, the learned Sessions Judge held that in all probability the condition of furnishing security for the stay of realisation of fines during the pendency of the appeals in this Court had been fulfilled, that admittedly the realisation of the fines during the pendency of the appeals before the Supreme Court had remained stayed and that if the periods during which the appeals were pending in the High Court and the Supreme Court were excluded, the period of six years since the date of the sentences had not expired and, therefore, the fines were recoverable and that the proceeding for their realisation was not barred by limitation. He further held that the reason for not taking steps for realisation of the amount of fines was that the properties of the petitioners were under attachment and that was sufficient reason within the meaning of Section 386 of the Code of Criminal Procedure, 1898 for the recovery of the fines even though the petitioners had already served out the sentences of imprisonment in default of payment of fine. As regards the application under the Ordinance filed by the Government Pleader, the learned Sessions Judge pointed out that that would be a matter for consideration by the Court of the District Judge. It is against this order that the present applications by the two petitioners are directed.