The State of Uttar Pradesh vs Bati and Others

Bind Basni Prasad, J.—This is a petition by the State of Uttar Pradesh for the amendment of an order passed by this Court in Criminal Appeal No. 366 of 1948 on July 12, 1949. The three accused who appeared as opposite party were convicted of offences Under Sections 148 449/149 and 307/149, I.P.C. by Shri Mohan Shankar Saksena, Assistant Sessions Judge of Bulandshahr, by his judgment, dated June 3, 1948 and were each sentenced to two years'' rigorous imprisonment u/s 148, I.P.C, to tour year''s rigorous imprisonment and a fine of Rs. 100/- or in default to one year''s rigorous imprisonment Under Sections 449/ 149 I.P.C. and to six years'' rigorous imprisonment and a fine of Rs. 100/- or in default to one year''s rigorous imprisonment Under Sections 307/149, I.P.C. As regards the substantive sentences of imprisonment he directed that they are to run concurrently. As regards the sentence of imprisonment in default of payment of fine he directed that it will run concurrently but after the expiry of the sentences for the substantive offences.

In appeal this Court reduced the substantive sentences of imprisonment passed against the opposite parties but in odder respects the order of the trial court was upheld.

It is contended by the learned Assistant Government Advocate that the sentences of imprisonment in default of payment of fine passed under the various sections against each accused could not be directed to run concurrently.

Notice was given to counsel for the opposite party and only Mr. Jagdish Sahai has appeared. The legal position is as follows:

According to Section 64 of the Indian Penal Code sentences of imprisonment for non-payment of fine should be in excess of any imprisonment to which the accused may have been sentenced. Section 69 of the Indian Penal Code provides that ''''it, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid the imprisonment shall terminate." The illustration given under that section makes the position still clearer. If imprisonment in default of the payment of fine imposed for several offences are to run concurrently the application of Section 69, I. P. C. will become impossible. There is also Section 35 of the Code of Criminal Procedure which provides for direction of sentences of imprisonment to be concurrent but it will be seen that it relates to substantive sentences of imprisonment and not to imprisonment in default of payment of fine. Section 398(2) of the Code of Criminal Procedure runs as follows:

398(2). When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment or to a sentence of transportation of penal servitude for an offence punishable with imprisonment, and the person undergoing the sentence is after its execution to undergo a further substantive sentence, or further substantive sentences of imprisonment, transportation or penal servitude, effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences.

The point is covered by decided cases also.

In Re: Kanda Mooppan, it was held that

It is not competent for the court to direct that sentences of imprisonment imposed for default in payment of fines should run concurrently. Such order, if passed is illegal; such direction can only he given in respect of sentences of imprisonment or transportation.

The same view was taken in Emperor v. Subrao Sesharao Emperor v. Ghulam Ahmad AIR 1929 Sind 179 and Emperor v. Akidullah 15 I.C. 808

When the appeal was heard by this Court this point was not raised on behalf of the prosecution. The present application was made about eight months after the judgment. If the point had been raised at that time the error committed by the learned Sessions Judge would have been rectified. The question is whether at the present stage this Court can rectify the mistake. In Sri Ram v. Emperor 1947 A.L.J. 485 it was held that were the mandatory provisions of the law have been overlooked the Court had power to correct such an error even though the case has already been decided.

I, therefore, direct the insertion of the following words in the last paragraph of my judgment, dated July 12, 1949, after the word ''maintained'':

Except that the sentence of imprisonment in default of payment of fine shall not be concurrent as directed by the learned Assistant Sessions Judge but shall be consecutive in each case.