Shyam Kumar vs State Of U.P.
2011 Latest Caselaw 2895 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 43
 

 
Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 4161 of 2011
 

 
Petitioner :- Shyam Kumar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Anurag Pathak
 
Respondent Counsel :- Govt. Advocate
 

 
Hon'ble Shri Kant Tripathi,J.

1. Heard Mr. CB Tiwari holding brief for Mr. Anurag Pathak, learned counsel for the appellant and the learned AGA for the State and perused the impugned order dated 21.05.2011 passed by the learned Additional Sessions Judge, Court No. 14, Saharanpur in Misc. Case No. 11 of 2010 whereby the learned Additional Sessions Judge committed the appellant to civil prison for a period of six month on account of the fact that the penalty of Rs. 50,000/- imposed on him under section 446 of the Code of Criminal Procedure (in short ?the Code?) could not be recovered as he had no moveable property and the warrant issued by the court was returned unexecuted.

2. With the consent of the learned counsel for the appellant and the learned AGA, the appeal is being disposed of finally at the stage of admission.

3. The learned counsel for the appellant submitted that the learned trial court has not provided any opportunity of hearing to the appellant before committing him to the civil prison, therefore,the impugned order dated 21.05.2011 is bad. It was next submitted that if the appellant had no moveable property and the processes of the court could not be executed against the moveable property, the trial court could have issued a warrant to the Collector of the district authorising him to realise the penalty as arrears of land revenue from the moveable property or immoveable property or both, of the appellant. The learned trial court had this power under section 421(1)(b) of the Code, which is enumerated herein below:

?Section 421(1) : When 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 may-

(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 so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357.?

4.  The learned counsel for the appellant further submitted that the impugned order, therefore, suffers from material illegality resulting in failure of justice.

5. The learned AGA on the other hand submitted that the learned trial court had power under the proviso to sub-section (2) of section 446 of the Code to send the appellant in civil jail upto six months, if the penalty was not paid and it was not possible to recover the same, therefore, the learned trial court was justified in passing the impugned order.

6. Before entering into the merits of the case, it would be appropriate to peruse the relevant portion of section 446 of the Code, which is reproduced herein below:

?Section 446 (1): ?...

(2) If sufficient cause is not shown and the penalty is not paid, the court may proceed to recover the same, as if such penalty were a fine imposed by it under this Code:

Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.

(3) ?....

(4) ?....

(5) ?....?

7. A perusal of the aforesaid provision clearly reveals that the penalty, imposed under section 446 of the Code, is recoverable as a fine. Sub-section (2) of section 446 of the Code as excerpted above, is very clear on this point. The court has further power under the proviso to the sub-section (2) of section 446 of the Code to order for imprisonment of the surety in civil prison for a term which extend to six months but this power is exercisable only when the penalty is not paid and cannot be recovered in the manner provided under sub-section (2) of section 446 of the Code. In other words, the imprisonment under the proviso to sub section (2) of section 446 of the Code can be imposed only when all the efforts for making recovery of the penalty fail and the amount remains unrecovered. If the penalty is not paid by the surety or person concerned, the court has to adopt various recourses provided in the Code for recovery of the penalty as arrears of fine. If it is also not possible to recover the penalty even after adopting all those recourses, it is open to the court to send the person concerned to the civil prison, not exceeding six months. The penalty (fine) can be recovered in accordance with section 421 of the Code as reproduced above. Sub-section (1) of section 421 of the Code, empowers the court to issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the person concerned. The court has further power to issue a warrant to the Collector of the district authorising him to realise the amount as arrears of land revenue from the moveable or immoveable property or both of the defaulter. Therefore, if the learned trial court received the report that the appellant had no moveable property and the warrant of attachment could not be executed due to that reason, the trial court, in that situation, should have proceeded to invoke the clause (b) of sub-section 421 (1) of the Code. It is also notable that there is no finding of the trial court that the appellant had no immoveable property. In this view of the matter, recovery of the penalty was possible by attachment and sale of the immoveable property of the appellant. The learned trial court instead invoking the provision of section 442 (1)(b) of the Code passed the impugned order and committed the appellant to the civil prison, which has resulted in causing grave injustice to the appellant.

8. No opportunity of hearing or show cause against the proposed action seems to have been provided to the appellant by the learned lower court. On this ground too the impugned order is per se illegal.

9. The appeal is accordingly allowed and the impugned order dated 21.05.2011 is quashed.

10. The learned trial court is directed to invoke the provisions of section 421(1)(2)(b) of the Code before sending the appellant to civil prison. If the Collector fails to make the recovery from the moveable or immoveable property of the appellant in pursuance of the warrant issued by the trial court, it will be open to the learned trial court to proceed afresh against the appellant, under the proviso to section 421 (1)(2)(b) of the Code. Keeping in view the facts and circumstances of the case, the appellant Shyam Kumar is directed to be released from the custody on his furnishing a personal bond of Rs. 50,000/- and one surety in the like amount to the satisfaction of the learned trial court.

Order Date :- 21.7.2011

shailesh