GOKUL CHANDRA NANDI Vs. SRIBODH CHANDRA BANERJI

JUDGEMENT

(1.) The question raised in this case is the legality of the sentences of two months rigorous imprisonment passed upon the petitioners in default of payment of fines of Rs. 50 each imposed upon them by a Second Class Magistrate under Section 143, I.P.C. These sentences of imprisonment in default exceed one-fourth of the maximum period of imprisonment that can be awarded under the section.

(2.) As the offence was punishable with imprisonment as well as fine, Section 65, I.P.C., limited the authority of the Magistrate as regards the imprisonment in dafault to a maximum of one-fourth of the period of six months fixed by Section 143. In his explanation the Magistrate has referred to foot-note 1 to Section 33, Sohoni's Criminal P.C. He takes that note "clearly" to say that a Magistrate when passing a sentence of fine only may award in default imprisonment up to the limit of his power; but the note begins with the very significant words "Subject to Section 65, I.P.C." The provisos to Section 33, Criminal P.C., do not extend the period of imprisonment which may be awarded under the provisions of Section 65, I.P.C., as was pointed out in Empress of India V/s. Daraba (75) 1 All. 464

(3.) The sentences of imprisonment in default were therefore clearly illegal, and the point is no longer disputed at the Bar. I am informed that the fines have, as a matter of fact, been paid but I have nevertheless thought it worthwhile to deal with the point so that the Magistrate may not fall into the same error again.