Chhajulal Vs. The State of Rajasthan
 INSC 83 (17 March 1972)
BEG, M. HAMEEDULLAH BEG, M. HAMEEDULLAH
CITATION: 1972 AIR 1809 1972 SCR (3) 906 1972
SCC (3) 411
Indian Penal Code (Act 45 of 1860), ss. 65
and 406 and Code of Criminal Procedure (Act 5 of 1898), ss. 32 and 33--Sentence
in default of payment of fine--Powers of First Class Magistrate.
The appellant was convicted by a first class
Magistrate under s. 406, I.P.C., and was sentenced to two years regorous
imprisonment, a fine of Rs. 2000/- and, in default to one year's further
On the question of the period of imprisonment
that could be imposed in default of payment of fine,
HELD : Even if s. 65, I.P.C., could be
applied the period of imprisonment in default of payment of fine could not
exceed nine months since an offence under s. 406 I.P.C. is punishable with
imprisonment up to three years. But reading ss. 32 and 33, Cr. P.C. together
the Magistrate could not have awarded more than six months imprisonment in
default of payment of fine. The terms s. 33 Cr. P.C. and s. 65 I.P.C., must
therefore be harmonised. Hence it must be held that while a Magistrate's power
are specifically limited by section 33 Cr. P.C. they must also be exercised so
as not to contravene s. 65 I.P.C. [908 D-G] Therefore, just as a First Class
Magistrate trying an offence punishable under s. 406 I.P.C., cannot impose the
maximum sentence of imprisonment prescribed by the section, because this powers
of awarding imprisonment are Specifically limited to a term not exceeding two
years by s.
32, Cr. P.C. so also necessary , by resorting
to s. 65 I.P.C., award a period of imprisonment in default of payment of fine,
on the erroneous assumption that he has the power to award the maximum sentence
prescribed by s. 406 1 P C.
[908 G-H; 909 A] Hence, three sentence of
imprisonment in default of fine cannot exceed six months.
Reg v. Muhammad Sahib, I.L.R. 1 Mad. 277
(F.B.); Queen-- Empress v. Venkatesagadu, 1. L. R. 10 Mad. 165 and Empress of
India v. Darba, I.L.R. I All. 46.1, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 117 of 1971.
Appeal by Special Leave from the Order dated
February 11 1971 of the Rajasthan High Court in S.B. Criminal Misc.
Application-, No. 152 of 1971.
Sobhag Mal Jain, for the appellant.
K. Balder Mehta, for the respondent.
907 The Judgment of the Court was delivered
by Beg, J. The appellant was convicted under Section 406 Indian, Penal Code and
sentenced to six month's rigorous impnsonment and a find of Rs. 500/-, and, in
default of payment of fine, to three months further rigorous imprisonment, by
the Munsif Magistrate of Karoli, District Bharatpur, Rajasthan. On an appeal by
him to the Court of Sessions, his conviction was set aside, but ,the Trial
Court was directed to proceed with the case afresh from the stage at which the
appellant should have been properly examined under Section 342 Criminal
Procedure Code. The appellant was then given a full opportunity, under Section
342 Criminal Procedure Code, to explain the facts and circumstances appearing
against him in the case.
Thereafter, he also produced five witnesses
in defence. He was, however, convicted again and sentenced to two years
rigorous imprisonment and to pay fine of Rs. 2,000/-, and, in default to
undergo one year's further rigorous imprisonment. The appellant again appealed
to the Court of Sessions which dismissed his appeal. The appellant then filed a
Revision application which was dismissed summarily by the High Court of
Rajasthan. Soon after that, the appellant made another attempt to invoke the
inherent jurisdiction of the High Court, by applying under Sec. 561A Criminal
Procedure Code, to get at least an illegality in the sentence corrected, but
this also failed. A prayer for a certificate of fitness of the case to appeal
to this Court was also rejected by the High Court. The appellant then applied
under Art. 136 of the Constitution to this Court.
That application was admitted only an the
question of the period of imprisonment awarded in default of payment of fine.
It is this question only which has been argued before us.
Section 33 of the Criminal Procedure Code
runs as follows "33(1) The Court of any Magistrate may award such terms of
imprisonment in default of payment of fine as it authorised by law in case of
such default Provided that- (a) the term is not in excess of the Magistrate s
powers under this Code;
(b) in any case decided by a Magistrate where
imprisonment has been awarded as part of the substantive, sentence, the period
of imprisonment awarded in default of payment of the fine shall not. exceed
one- fourth of the period of imprisonment which such Magistrate is competent to
inflict as punishment for the offence otherwise than as imprisonment in default
of payment of the fine..
908 (2) The imprisonment awarded under this
section may be in addition to a substantive sentence of imprisonment for the
maximum term awardable by the Magistrate under Section 32".
The Munsif Magistrate who convicted the
appellant had the powers of a Magistrate 1st Class which are restricted, by
Section 32,sub.s(1) (a),- to imposing imprisonment for a term not exceeding two
years and fine not exceeding Rs.
2,000/-. Reading Section 32 and 33 together,
it was clear that, in the case before us, the Munsif Magistrate could not award
more than six months imprisonment in default of payment of fine.
In answer to the appellant's contention,
based on Section 33 of the Criminal Procedure Code, learned Counsel for the
State of Rajasthan placed Section 65 Indian Penal Code before us. This Section
reads as follows "65. The term for which the Court directs the offender to
be imprisoned in default of payment of a fine shall not exceed one-fourth of
the term of imprisonment which is the maximum fixed for the offence, if the
offence be punishable with imprisonment as well as fine".
It will be seen that even where Section 65
Indian Penal Code is applied by a Court the term of imprisonment in default of
payment of fine cannot exceed one fourth of the term of imprisonment which is
the maximum period which can be awarded for an offence of which an accused is
convicted. An offence under Section 406 Indian Penal Code is punishable with
imprisonment which can extend to only three years rigorous imprisonment and a
fine. Thus, even if Section 65 Indian Penal Code could be applied, the period
of imprisonment in default of payment of fine could not exceed nine months.
It is clear that Section, 65 only fixes a
maximum period of imprisonment which can be awarded for default of payment of
fine whenever any court convicts. On the other hand, Section 33 Criminal
Procedure Code governs specifically the powers of 1st Class Magistrates on this
matter. Section 33 Criminal Procedure Code also contains the principle embodied
in Section 65 Indian Penal Code in its application to Magistrates. Just as a
1st Class, Magistrate trying an offence punishable under Section 406 Indian
Penal Code cannot impose the maximum amount of imprisonment prescribed by this
Section, because his powers of awarding imprisonment are specifically limited
to those conferred to Section 32 Criminal Procedure Code, so also he cannot, by
resorting, to Section 65 Indian Penal Code, award a 'period of imprisonment in
909 default of payment of fine on the erroneous assumption that he has the
power to award the maximum sentence prescribed by Section 406 Indian Penal
Section 65 of the Indian Penal Code was
enacted in 1860. In 1872 Section 309 of the Criminal Procedure Code 1872
enacted : "where a person is sentenced to fine only the Magistrate may
award such terms of imprisonment in default of payment of fine as is allowed by
law provided that the amount does not exceed the Magistrate's powers under this
It was held in Reg. v. Muhammad Saib(1), that
Section 309 of the Code of 1972 over-ruled the provisions of Section 65 Indian
Penal Code. On a parity of reasoning, Section 33 of the Criminal Procedure Code
of 1898, with which we are concerned here, would over-ride Section 65 Indian
Penal Code. or, to be more accurate, apply more specifically to Magistrates.
In Queen-Empress v. Venkatesagadu & Ors.
(2) it was held that Section 33 of the Criminal Procedure Code of 1882 did not
authorise a Magistrate to pass sentence in default of payment of fine in excess
of the term prescribed by Section 65 Indian Penal Code. Here, reliance was
placed upon a decision of Full Bench of the Allahabad High Court in the Empress
of India v. Darba & No case has been cited before us in which an attempt
was made to justify an order of a Magistrate, whose jurisdiction to punish is
limited by Section 33 Criminal Procedure Code, by applying Section 65 Indian
Penal Code. It is obvious that the two Sections must be harmonised. This means
that, while a Magistrate's powers are specifically limited by Section 33
Criminal Procedure Code, they must also be so exercised as not to contravene
Section 65 Indian Penal Code.
As the sentence of one year's rigorous
imprisonment in default of payment of fine passed by the Munsif Magistrate was
in excess of his powers, we allow this appeal to the extent that we reduce only
the sentence of one year's rigorous imprisonment awarded in default of payment
of fine to six months rigorous imprisonment The rest of the sentence, which is
quite legal, must stand. We may observe here that it would have been better if
this obvious illegality and excess of power could have been corrected by the
High Court when the matter was brought to its notice by means of an application
under Section 561A Criminal Procedure Code.
(1) I.L.R. 1 mad. 277 (FB).
(2) I.L.R. 10 Mad. 165.
(3) I.L.R. 1 All. 461.