JADABENDRANATH PANJA Vs. EMPEROR

JUDGEMENT

(1.) In this case a Rule was issued to show cause why an order issuing a warrant under Section 386, Criminal P. C., to the Collector of Burdwan, authorising him to realise the unrealised part of a fine imposed on the petitioner in 1932 by a Special Magistrate under Section 17 (2), Criminal Law Amendment Act, should not be set aside.

(2.) The petitioner was convicted on 27 January 1932, under Section 17 (2), Criminal Law Amendment Act of 1908 for having promoted a meeting under the auspices of the Burdwan Congress Committee which had been declared unlawful. The case was tried by Mr. Section P. Ghose, special Magistrate, Burdwan, who sentenced the petitioner to undergo rigorous imprisonment for two years and six months and to pay a fine of Rs. 500, in default to suffer rigorous imprisonment for six months more. On 8 March 1932, an order was made for the execution of the fine and subsequently, while the petitioner was serving his sentence, a sum of Rs. 44-8-0 was realised by attachment and sale of his moveable properties. In May 1932 Ordinance No. 11 of 1931, under which Mr. Section P. Ghose had been appointed a Special Magistrate, expired. The petitioner alleges that although part of the fine was realised, no intimation of such realisation was given to the jail authorities, with the result that the petitioner had to serve out the whole term of imprisonment inflicted in default of payment of the fine, namely, 6 months in addition to the substantive sentence of imprisonment passed upon him. Further, he alleges that the fact of realisation of a part of the fine, if intimated to the jail authorities, would have earned for him a remission of sentence, but that he received no such remission on account of partial realization of the fine besides the usual remission for good conduct under the Jail Code. Subsequently, on 7 March 1935, a warrant was issued under Section 386, Criminal P. C., by Mr. B. Sinha, Sub-Divisional Magistrate of Burdwan, authorising the Collector of the district to realise the unrealised part of the fine, viz., Rs. 456, according to civil process by attachment and sale of the immoveable properties of the petitioner. The petitioner further alleges that although it appeared clear from the settlement papers, etc., that he had some landed properties, no proper steps were taken to realise the unrealised portion of the fine till after the lapse of three years from the date of his conviction.

(3.) The arguments raised on behalf of the petitioner are that the Court of Mr. B. Sinha, who issued the warrant, not being a Court of the Special Magistrate who passed the sentence or his successor-in-office, had no power to issue the warrant. Further, the warant was not signed by Mr. Sinha as a Special Magistrate but as Sub-divisional Magistrate of Burdwan. Further it has been argued that under Section 386, Criminal P. C., where the offender has suffered the whole of the imprisonment ordered to be undergone in default of payment of the fine, the Court shall not issue a warrant for the realisation of the fine, unless for special reasons to be recorded in writing it considers it necessary to do so. With regard to the first point, Ordinance 11 of 1931 provided in Chap. 1 for certain emergency powers, and in Chap. 2 for certain Special Criminal Courts, and Section 23 (included in that Chapter) provided that Courts of criminal jurisdiction may be constituted under that Ordinance of the following classes: namely, (i) Special tribunals and (ii) Special Magistrates. The note in the margin of that section is "Special Court." Section 386, Criminal P. C., provides that: Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine by issuing certain warrants; provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so.