1. The appellant has preferred this appeal against the order, dated 16th March 1959, passed by the District Judge of South Kanara in Appeal Suit No. 154 of 1958, by which he confirmed the order of the trial Court and directed that the execution petition be proceeded with according to law.
2. The facts leading to this appeal may shortly be stated as follows:
3. The appellant was convicted for offences punishable under Sections 477A and 409 of the Indian Penal Code and sentenced to undergo imprisonment for one year and to pay a fine of Rs. 2,500/- and in default of payment of fine to suffer further imprisonment for a period of 2 1/2 years. The date of this order is not available hOWever, there seems to be no dispute that the appellant has served the substantive sentence of one year and since there was default in payment of fine, tie was undergoing the default sentence. It appears that during the course or his imprisonment, he made a part payment of Rs. 1,242/- towards the sentence of fine imposed on him.
4. As an act of clemency and grace In connection with the formation of the New State of Mysore, the Government, by its order dated the 1st November 1956, granted remission to the prisoners undergoing sentence in the State of Mysore and, in consequence, the appellant, having earned the remission, was released from Jail on 7th April 1957. But, before his release, a warrant for the recovery el line, had been issued under Section 386 (1) (b) of the Code of Criminal Procedure to the collector authorising him to realise the amount by Execution according to Civil process against the movable or immovable property or both, of the defaulter.
In pursuance of this warrant, the Collector sought to execute it as a decree as provided by Sub-section (3) of Section 385 Cr. P.C. by filing an execution petition on 19th July 1951. In that execution petition, he sought to to recover a sum of Rs. 2440/-. But, as I stated, when it was brought to the notice of the court that by the time at his release the offender had made a payment or Rs. 1,242/-, the payment was conceded and the amount was given deduction to and the balance was sought to be recovered. The mode of recovery of the amount was by sale of the properties belonging to the appellant which were described in the inventory filed along with the petition.
5. This Execution petition was opposed by the appellant principally on two grounds: Firstly, that the warrant issued was illegal since the person issuing it was not the person who inflicted the sentence and it is not shown that he is declared to be his successor; and secondly, that there was no longer any liability existing for payment of the fine since he had not only made a part payment of fine but had also undergone imprisonment in default of payment of the balance of fine, therefore the execution could not be proceeded with.
6. Both the courts below negatived the contentions of the appellant and directed the execution to proceed according to law. It is this order of the Courts below that has Seen challenged by Mr. K. Vithala Rao on behalf or the appellant in this appeal.
7. In addition to the two objections raised in the court below, Mr. Vithala Rao contends that the decree against his client cannot be executed by virtue of the proviso to Section 386 (1) (b) Cr.P.C.
8. AS to the first point, he contends that the District Magistrate had no power to issue the warrant as the conviction was by the Special Magistrate who ceased to be Magistrate after the trial of the case and the District Magistrate who Issued the warrant has not been shown to be declared as his successor. But since this point was not raised in the pleadings, the Government Header in the trial Court contended that he was not in a position to controvert that point and pointed out that if it had been raised in the pleadings, he would have led evidence in that regard.
The Courts below accepted that contention and further relying upon the provisions of Section 559 Cr. P.C. also field that the issue of warrant was legal. TO my mind, this question is not a pure question of taw. It does re-quire investigation of necessary facts and since it was not pleaded, It Is not open to the appellant to urge that point and, therefore, apart from the reasons given by the Courts below, I am of the opinion that the appellant should not be permitted to raise the point which was not pleaded by him in the trial Court.
9. But the important point that survives for consideration is whether the warrant could be executed inview of the facts stated by me.
10. Section 386 Cr. P. C. provides the mode or warrant to be issued for the levy of fine. Sub-section (1) thereof states:
'Whenever an offender has been sentenced to pay fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following way, that Is to say, it may-
* * * * * (b) issue a warrant to the Collector of the Districtauthorising him to realise the amount by execution according to Civil process against the movable or immovable property, or both, of the defaulter:
Provides that if the sentence directs that in default or payment of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such Imprisonment in default, no Court snail issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so.'
Sub-section (3) provides:
'Where the Courts issue a warrant to the collector under Sub-section (1), clause (b), such warrant shall be deemed to be a decree, and the collector to be the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil court by which any decree for a like amount could be executed shall, for the purposes of the said Code be deemed to be the court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly'.
It is in pursuance of this provision that the collector is seeking to execute the decree.
11. The relevant provision which requires consideration is the proviso to Sub-section (1) of the said section, what is contended by Mr. Vithala Rao Is that the appellant in this case having undergone the whole of the imprisonment in default the Court shall not issue a warrant unless for special reasons to be recorded in writing it considers it necessary to do so.
He further contends that it is apparent from the proviso that the Legislature did not intend that the offender should undergo the Imprisonment in default as well as be liable to pay fine, and that since his client has undergone the imprisonment in default, the decree could not be executed against him In the absence of special reasons to be recorded in writing. This is in addition to the argument that in consequence of the part payment of fine and also having undergone the imprisonment in default for the balance of fine, there is no amount which remains to be recovered.
12. Mr. Government Pleader appearing for the state, on the other hand, contends that this proviso comes into operation only if the offender has undergone the whole of such imprisonment in default and that, in this case, the warrant having been issued even while the appellant was undergoing imprisonment in default, this proviso does not come into play. His contention has been that while Section 70 IPC is a substantive law as to the payment of fine, Section 386 Cr.P.C. relates to the procedure for the recovery of that amount and that consequently Section 70 I.P.C. is not controlled by the provisions of Sub-sections 1 (b) and (3) of Section 386 Cr.P.C.
13. It is true that under Section 70 l.P.C. the offender is not discharged from his liability to pay the fine. Even under Section 386 Cr. p.c. the liability of the offender is still there and is not wiped out. But the proviso states that if the whole of such Imprisonment in default has been undergone by the offender, then no court shallissue such warrant for the recovery of the fine. Therefore it may be conceded in favour of the State that it has a right to recover the fine in spite of the imprisonment having been undergone by the offender.
It is important to note that the present Sub-section (1) to Section 386 Cr. P.C. was substituted by the Amending Act XVIII of 1923, and by this amendment a substantial change has been made by the Legislature and it intended that the offender should not be made to pay the tine as well as undergo imprisonment in default of payment of the fine in the absence of special reasons to be recorded in writing. Therefore, the contention of the learned Government Pleader that the State has a right to recover the fine from the offender and that the same could be recovered within six years as mentioned in section 70 I.P.C. and that the said right has not been curtailed by the proviso to Sub-section (1) of Section 386 Cr. P. C. cannot be accepted.
14. To my mind, reading section 70 I.P.C. with the proviso to Sub-section (1) of Section 386 Cr. P.C. it is clear that the Legislature did not want that the offender should undergo imprisonment as well as pay the the though it conceded the right in favour of the State that the liability of the offender is still there and that it could be enforced for special reasons to be recorded in writing. Therefore the contention of the learned Government Pleader that he is entitled to execute the decree in spite of the fact that the offender has undergone the whole of the imprisonment in default, in the absence of special reasons, cannot be accepted. He has strenuously urged before me that this proviso applies only when the warrant has been issued after the whole of the imprisonment in default has been undergone by the offender. There can be no dispute that this proviso applies only to a warrant which is to be issued after the whole of the imprisonment in detain has been undergone by the offender.
15. But the question is whether, when the warrant has been already issued when the offender was undergoing imprisonment in default and he has suffered the whole of such imprisonment, the Government could still, on principle, recover the fine as provided under Sub-section (3) of Section 386 Cr. P.C. in the absence of special reasons to be recorded in writing.
16. In my opinion, in dealing with such an existing warrant, the Court should, however, follow the policy which seems to have inspired the proviso to Sub-section (1) or Section 386 Cr. P. C. That policy appears to be that, in general, an offender ought not to be required both to pay the fine and to serve the sentence in default. This proposition finds a place in the decision reported in ILR 59 Bom 350: AIR 1935 Bom 160, Digambar Kashinath Bhawanni v. Emperor. The facts of that case are similar to the facts of the present case. The applicant there was released from Jail having served not only the substantive sentence but also the sentence of imprisonment in default of payment of fine. There also the warrant had been issued when the petitioner was still in prison and when we warrant was sought to be executed by way of a decree, it was contended that in view of the fact that the petitioner had undergone the imprisonment in default or payment of fine, the warrant for the recovery of fine issued against him should be withdrawn. Obviously that contention was based on the proviso to Sub-section (1) of Section 386, Cr. P. C.
17. While dealing with that proviso, the learned Chief Justice Beaumont states as follows:
'The proviso applies in terms only to the issue or a fresh warrant and does not require the withdrawal of a warrant already issued before expiration of the sentence in default of payment. But, I think that, in dealing with such existing warrants, the court should follow the policy which seems to have inspired the proviso to Section 386. That policy appears to be that in general an offender ought not to be required both to pay the fine and to serve the sentence in default. But the proviso enables a warrant to be issued for recovery of the fine, even if the whole sentence in default has been served, if the Court considers that there are special reasons for issuing the warrant. I apprehend that the special reasons should be reasons accounting for the tact that the fine has not been recovered before the sentence in default has been served, and any reasons which are directed to that point would be relevant. It may be that the authorities, through no negligence on their part, did not know of the existence of the property or the accused may have indented property after ha served his sentence in default; or there may not have been time to execute the warrant. Matters ot that sort would all be special reasons for issuing a warrant after the sentence in default had been served'.
18. Thus it could be seen that the learned Chief Justice had staled what must be the intention of the Legislature and what, in his opinion, would be the nature of special reasons tor issuing a warrant in cases falling under the proviso to Sub-section (1) of Section 386 Cr. P.C. It is important to note that the same principle which applies to a warrant to be issued after the whole of imprisonment in default has been undergone, was applied to the warrant which was issued while the offender was still in prison. The learned Chief Justice stated:
'. . . .I think, in the same way, they are reasons justifying the court in refusing to withdraw a warrant already issued.'
Thus, no difference seems to have been made, on principle, between a warrant which is to be issued after the whole of the imprisonment in default has been undergone and the warrant which was issued while the offender was still in prison. However, on the facts of that case, the learned Chief Justice held that the reasons mentioned by him for not withdrawing the warrant were special reasons as contemplated by the proviso and, therefore, he allowed the warrant to be executed. But the principle laid down is apparent viz., that there should be no distinction between a warrant to be issued after the whole of the imprisonment in default has been undergone and the warrant issued white the offender was still in prison and served the whole of the imprisonment in default before it was executed, in either case, special reasons must be shown for its execution.
19. This principle was followed in a case reported in AIR 1938 Cal 149, Jadabendranath Panja v. Emperor. It was further stated:
'Except in special cases it seems to me both undesirable and unfair to seek to realise a fine when the sentence ordered to be served in default of payment of the fine, has already been served in full; and in my opinion the proviso is intended to deal with cases where for some sufficient reason the authorities have not been able to realise the fine before the default sentence has been served.'
In the case reported in AIR 1957 Mys 52 Siddappa v. State of Mysore, the principle laid down in ILR 59 Bom 350: AIR 1935 Bom 160 was accepted as a good law, therefore, in my opinion, though the Government has a right to recover the unpaid fine from the offender in spite of the fact that he has undergone the whole or the imprisonment in default of payment of fine and the liability of the prisoner is still there, the Legislature intended, as is apparent from the proviso to Sub-section (1)of Section 386 Cr. P.C. that no Court shall issue a warrantwhere the whole ot the imprisonment in default of payment of fine has been undergone by him unless there arespecial reasons for issuing such a warrant.
I am not inclined to agree with the learned Government Pleader that this should be confined only to warrants issued after the whole of the imprisonment in default of payment of fine has been undergone by the offender. It the Legislature intended, that the offender should not be made to pay the fine when the whole of the imprisonment in default of payment of fine has been served, in the absence of special reasons, then why should on principle, a warrant which has been, issued while the offender was in prison be allowed to be executed when before the completion of the execution he has undergone the whole of the imprisonment in default of payment of fine, in the absence of special reasons.
20. ln this case, by reason of the remission granted to him by the Government, the appellant was released from Jail and there is no dispute that he was undergoing imprisonment In default of payment of fine. Therefore, before execution could be levied by the government, the appellant had been, released on the ground that the whole of the imprisonment in default of payment of fine had been undergone by him. Consequently the Government should have withdrawn the warrant and should not have sought to execute it as a decree. Though the warrant was issued on the 26th of March 1956 and the offender was released on 7th of April 1951, yet the execution was sought to be levied on the 19th of July, 1957 i.e., very nearly three months after the release of the offender.
Therefore, in my opinion, on principle, and in view or the decisions referred to above and the express intention of the Legislature, it must be held that the offender ought not to be made to pay the fine when the imprisonment in default of payment of fine has been undergone by the offender in the absence of special reasons to be recorded in writing. In this case, there is no evidence whatever as to why the Government did not start the execution even though the warrant was issued 16 months before its levy and i., during this period, the offender has undergone the imprisonment in default of payment of fine, the warrant ought not to be permitted to be executed in the absence of special reasons given by the State.
21. I do not consider it necessary to express any opinion on the contention raised by Mr. Vithala Rao that there is no liability of his client since the same must be deemed to have been wiped out by his undergoing imprisonment in default of payment or fine because the appellant is entitled to succeed on the ground that the State cannot enforce the warrant by execution of the decree against him.
22. For the reasons stated above, I set aside the order passed by the Lower Appellate court and allow this appeal dismissing the execution petition filed by the State.
23. In the circumstance of the case, there will beno order as to costs throughout.
24. Appeal allowed.