LexCHHAJULAL versus THE STATE OF RAJASTHAN
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906 CHHAJULAL v. THE STATE OF RAJASTHAN March 17, 1972 [A. N. GROVER AND M. H. BEG, JJ.] 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 Fir~·t Class Magistr(ue. B The appellant was convk'ted by a first class Magistrate under s. 406, I.P.C., and was sentenced to tvlo ye3fs regorous imprhonment, a fine C • of Rs. 2000/ - ahd, in default to one year's further rigorous imprisonment. On the question of the· p~riod of imprisonment that could be imposed in d,efault of. payment of fine. HELD : Even if s. 65, l.P.C., could be applied the period of imprison- ment in default of payn1ent of fine could not exceed nine months since an offence under ~. 406 I.P.C. is punishable with imprisonment up to th!ree years. But reading ss. 32 and 33, Cr. P.C. together the M~gis trate could not have awarded more than six months imprisonment in de- fault of payment of fim. The terms s. 33 Cr. P.C. and s. 65 I.P.C., must therefore be harmonised. H'!nce 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-Gl TherefOire, just as a First Class Magisrate trying an offence punish- able under s. 406 I.P.C., cannot impose the maximum sentence of im- prisonment prescribed by tt~e section, because his powers of awalrding imprisonment are ~pecifk13lly limit.ed .. to a term not exceeding two years by s. 32, Cr. P.C. so also he cannot. by resorting to s. 65 I.P.C., award a period oJ imp:rbonment in default of payment of fine, OJ! the erroll!Ous assumption th~t he has the noWer to award the maximum sentence pres- cribed bys. 406 l.P.C. (908 G-H; 909 Al Hence, the 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, I.L.R. 10 Mad. 165 and E1npress of India v. Darba, I.L.R. I All. 461, 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. Applica- tion No. 152 of 1971. Sobhag Mal lain, for the appellant. K. Baldev Mehta, for the respondent. D E F G H CllliA.JU LAL v. RA.JASTHAN (Beg, I.) 907 A 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 rig01'()Us imprisonment and a fine of Rs. 500/-, and, in default of payment of fine, to . three months further rigorous impriSonment, by the Munsif B Magistrate'of Karoli, District Bharatpur, Ra,iasthan. On an appeal by him to the Court of Sessions, his conviction was set aside,' but the Trial Court was directed to pr9ceed 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 1hen given a full opportunity, under Section 342 C Criminal Procedur~ 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. 2,0001-, 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 D 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 E Court was also rejected by the High Court: The appellant then applied under Art. 136 of the Constitution to this Court. That application was admit1ted only on 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. F .G H · 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 th
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