Bagdaram Vs. State of Rajasthan

criminal procedure code - sections 421(1) & 428--amount of fine not deposited--held, accused is liable to undergo imprisonment for 3 months in lieu of fine; and (ii) this period of imprisonment cannot be subjected to set off for period undergone in detention during investigation, inquiry and trial.;since the appellant has admittedly not deposited the amount of fine of rs. 500/- he is liable to undergo rigorous imprisonment for three months imposed upon him in default of the payment of fine and this period of imprisonment awarded to him in default of payment of fine cannot be subjected to a set off by the period the appellant had been under detention during the investigation, inquiry or trial of the case.;appeal dismissed - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. .....or trial before the date of conviction shall be set off against the term of imprisonment imposed on him on his conviction.3. it was contended by mr. p. r. chaudhary that the appellant has already suffered 18 months imprisonment during the trial and thus he should be ordered to be released. as against this, it was contended by the pubic prosecutor that the appellant has not deposited the fine of rs. 500/- imposed upon him and, therefore, he has to undergo imprisonment of three months in default of payment of fine and this period of three months of rigorous imprisonment awarded in default of payment of fine cannot be set off under section 428, cr. p.c.4. the learned counsel for the appellant bagdaram referred to the decision of this court in budha ram v. state of rajasthan 1978 wln 624. that decision was in connection with suspension of sentence under section 389 of the cr. p.c. the language of proviso to section 421(1) and 428, cr. p.c. is very clear. section 428 of the code excludes the imprisonment in default of payment of fine from being subjected to a set-off of the period of detention undergone by a convict during the investigation, inquiry or trial in the case. proviso to section 421(1), cr. p.c. forbids the issue of a warrant for the levy of the amount of fine by attachment or for realising the amount as arrears only for the offenders who have already undergone the whole of the imprisonment imposed in default of payment of fine. since the appellant has admittedly not deposited the amount of fine of rs. 500/-, he is liable to undergo rigorous imprisonment for three months imposed upon him in default of the payment of fine and this period of imprisonment awarded to him in default of payment of fine cannot be subjected to a set-off by the period the appellant had been under detention during the investigation, inquiry or trial of the case.5. no other point was argued in this appeal.6. the appeal has, therefore, no force in it and it is hereby dismissed.