G.C Mathur, J.:— The 27 applicants are members of the Samyukt Socialist Party of India. In connection with the Food Agitation, they entered the court of the Additional Sub-Divisional Magistrate, Gyanpur, Varanasi, and interrupted the judicial proceedings which were going on there. The learned Magistrate, on September 25, 1964, convicted them for contempt of court and sentenced each one of them to a fine of Rs. 50/- and, in default of payment of fine, to undergo simple imprisonment for 15 days. As the applicants did not deposit the fines, they were sent to jail and warrants for realisation of the fines were also issued. On October 2, 1964, the applicants were released from jail under an order passed by the State Government under Sec. 401, Cr. P.C The relevant portion of this order reads:
“The Government remits under Sec. 401 of the Code of Criminal Procedure, 1898, unexpired period of substantive sentence of imprisonment and sentence in lieu of fine of such prisoners who were convicted in Food Agitation during August and September, 1964, and whose unexpired period pertains to substantive sentence of imprisonment and sentence in lieu of fine remains to be served for one month or less on 2nd October, 1964, and direct their release on Gandhi Jayanti on 2nd October, 1964.”
2. On the release of the applicants, the learned magistrate withdrew the warrants for realisation of fines which had been issued. Subsequently, the learned magistrate referred the matter regarding the realisation of fines to the State Government and was ultimately informed that the fines had not been remitted. He accordingly issued fresh warrants for realisation of the fines. On March 19, 1965, an application was filed by the applicants before the learned magistrate, contending that, since the remaining sentence of imprisonment had been remitted, it meant that the sentence of fine had also been remitted by the State Government and prayed that the warrants issued for realisation of the fines be withdrawn. This application was rejected by the learned magistrate on April 6, 1965. Against the order of the learned magistrate, the applicants filed two revisions before the learned Sessions Judge, Gyanpur. The learned Sessions Judge was of the view that the State Government had no power under Sec. 401, Cr. P.C to remit a sentence of imprisonment in default of payment of the fine. He was further of the view that, even if the applicants could be said to have served out the sentence of imprisonment in default of payment of the fine, the fine could still be realised as it had not been remitted by the Government. He accordingly dismissed the revisions. The applicants have now come up in revision to this Court.
3. The first question, which arises for consideration in this case, is whether a fine can still be recovered after the defaulter has undergone the whole of the imprisonment awarded in default of payment of the fine. The provisions, which govern imposition of the sentence of imprisonment in default of payment of the fine, are Secs. 64, 68 and 69 of the Indian Penal Code. These sections stand thus:—
“64. In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment of fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.
68. The imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law.
69. If, 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.”
4. There is no provision in the Indian Penal Code like Sec. 68 providing that, on the undergoing of the whole period of imprisonment, the fine shall not be recoverable. The procedure for recovery of such fines is provided for in Sec. 386 of the Code of Criminal Procedure. Sub-sec. (1) of Sec. 386, Cr. P.C which is relevant, provides:
“386(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 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 by execution according to civil process against 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.”
5. The absence of any specific provision to the effect that the fine shall not be realisable if the whole of the period of imprisonment for default has been undergone and the language of the proviso to sub-sec. (1) of Sec. 386, Cr. P.C lead to the conclusion that the undergoing of imprisonment awarded in default of payment of the fine does not operate as a discharge or satisfaction of the fine which may nevertheless be levied in the manner prescribed by Sec. 386(1), Cr. P.C Where the offender has ???