Report No. 41

28.11. Section 386(2.- Rules for settling claims necessary.-

Section 386(2) contemplates the making of rules by State Governments1. The desirability of framing such rules has been pointed out in a Bombay case2. Where such rules are not made and a claim is made by a third party to the property attached under section 386(1)(a), the question may arise what procedure should be followed. One view is, that in such a case the only thing that can be done by the Magistrate is to stay the sale and refer the claimant to a Civil Court2. But according to another view, the procedure given in section 88(6A) et seq. (which is analogous to order 21, rule 58, Civil Procedure Code) should be followed.-4. The rules should provide for the procedure to be followed when such claims are made.

1. A letter inquiring about the present position has been sent to the State in October, 1968. For the old U.P. Rules, see Harimal, AIR 1933 Born 435.

2. Pandurang (in re:), AIR 1932 Born 476 (477).

3. Prasanna v. Emperor, ILR 55 Mad 1041: AIR 1932 Mad 538.

4. Memunabi (in re:), AIR 1955 Saurashtra 86 (87), para. 3.

28.12. Section 386(3).-

Section 386(3) can be shortened in view of the amendment which we propose in section 386(1)(b). The matter contained in the main paragraph requires to be modified; the proviso may be retained with such verbal changes as are necessary in view of the changes to be made of the main paragraph.

28.13. Amendment of section 386 recommended.-

Section 386 may accordingly be amended to read as follows.-

"386. Warrant for levy of fine.- (1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it ma.-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter:

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, or unless it has made an order for the payment of expenses or compensation out of the fine under section 545.

(2) The State Government may make rules regulating the manner in which warrants under clause (a) of su.-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of su.-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender."

28.14. Section 387.-

Under section 387, a warrant issued under section 386(1)(a) (warrant for the attachment and sale of movable property) can be executed within the local limits of the jurisdiction of the Court issuing it, and, if endorsed by the District Magistrate or Chief Presidency Magistrate concerned, also outside such local limits.

No amendment of substance is required in section 387.

28.15. Section 387A.-

Section 387A deals with the levy of fine under a warrant issued in the State of Jammu and Kashmir. If, as we have recommended elsewhere in this Report, the Code is extended to that State, this special provision will not be necessary and the section may be omitted. In the meantime, until the Code is so extended, section 387A will require a slight formal amendment to bring it into line with the amendments proposed above in clause (b) of sub¬section (1) and su.-section (3) of section 386. In section 387A, for the words "by execution according to civil process against the movable or immovable property, or both, of the offender" there should be substituted the words "as if it were an arrear of land revenue."

28.16. A Bombay provision.-

We have considered an additional provision ' made in the Code by a Bombay amendment and numbered section 387AA, for the recovery by executive Magistrates of fines and penalties imposed under special laws. The need for such a provision is not very clear, and in any event, it does not appear to have been felt in any other State.

28.17. Sections 388 to 395.-

Sections 388 and 389 need no change. Sections 390 to 395 have already been repealed.

28.18. Section 396.-

Section 396 is not wel.-constructed. It may be redrafted as follows.-

"396. Execution of sentence on escaped convicts.- (1) When a sentence of death, imprisonment for life or fine is passed under this Code on an escaped convict, such sentence shall, subject to the provisions hereinbefore contained, take effect immediately.

(2) When a sentence of imprisonment for a term is passed under this Code on an escaped convict.-

(a) if such sentence is severer in kind than the sentence which such convict was undergoing when he escaped the new sentence shall take effect immediately;

(b) if such sentence is not severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.

(3) For the purposes of su.-section (2),

(a) a sentence of imprisonment with solitary confinement shall be deemed to be severer in kind than a sentence of the same description of imprisonment without solitary confinement; and

(b) a sentence of rigorous imprisonment shall be deemed to be severer in kind than a sentence of simple imprisonment with or without solitary confinement."

28.19. Sections 397 and 398.- No changes are required in sections 397 and 398.

28.20. Section 399.-

Section 399 is in force only where the Reformatory Schools Act, 1897, is not in force. Furthermore, the Children's Acts in force in certain States and Union Territories contain provisions which practically supersede those of section 399 of the Code. This section is thus obsolete and may be omitted.

28.21. Section 40.- No change is needed in section 400.