S. Narain, J.:— Both these revision applications arise out of a common order and involve the same points. Therefore, they have been heard together and the order will govern them both.

2. The relevant fads are these: Brahameshwar Prasad Sinha is the petitioner in Criminal Revision No. 61 of 1976 (R) while Banarsi Lal Kohli is the petitioner in Criminal Revision No. 63 of 1976 (R). Both these petitioners along with others, were tried for various offences which are ‘schedule offences’ within the meaning of the expression as used in the Criminal Law Amendment Ordinance 1954 (hereinafter called the ‘Ordinance’). During the pendency of the investigation of the offences, various properties belonging to the petitioners and other accused were attached by the order of the District Judge passed under the aforesaid Ordinance. The trial ended in the conviction of these petitioners and other accused persons. By the order of conviction and sentence of the Special Judge which was passed on 24-7-1964 each of the petitioners was sentenced to rigorous imprisonment for three years and also to pay a fine of Rs. 30,000/- and in default to rigorous imprisonment for six months more. In addition, petitioner Brahameshwar Prasad Sinha was sentenced to pay a fine of Rs. one lac while petitioner Banwari Lal Kohli was sentenced to pay a fine of Rs. 30,000/-. Both these petitioners preferred appeals against the aforesaid order of convictions and sentences in this Court. This Court while admitting the appeals enlarged the petitioners on bail and also stayed realisation of the fines imposed subject to the condition regarding furnishing of security. Ultimately, by its order dated 24-3-1967 the appeals preferred by the petitioners were dismissed by this Court. Against that order of this Court dismissing their appeals, the petitioners preferred appeals to the Supreme Court by special leave. The Supreme Court while granting special leave and admitting the appeals, enlarged the petitioners on bail and also stayed the realisation of the fine imposed. Ultimately by its order dated 7-9-1971 the Supreme Court dismissed the appeals filed by the petitioners subject to the modification in the sentences imposed upon the petitioners. The sentences imposed on Brahameshwar Prasad Sinha and Banarsi Lal Kohli were reduced respectively to Rs. 20,000/- and Rs. 30,000/-The Supreme Court while reducing the fines imposed, ordered that the petitioners, in default of payment of fines, would have to undergo rigorous impriment for six months more. For the purposes of this case, it is not necessary to refer the modification in the sentences of imprisonment or those in default of payment of fine imposed on the petitioners. It appears that after the disposal of the appeals by the Supreme Court, on 24-9-73, the Sessions Judge, Palamau as the successor-in-interest of the Special Judge who had tried the case, issued distress warrant for realisation of the amount imposed on the petitioners. On 10-12-1973, petitioner Banarsilal Kohli filed a petition praying that the fine imposed may be realised from his properties attached by the District Judge by his order passed under the Ordinance and that pending realisation of the fine from the attached properties, the distress warrant issued against him be recalled. That petition was rejected by the learned Sessions Judge by his order dated 10-12-73. Thereafter, on 22-12-75 an application was filed on behalf of the accused persons which included the petitioners also, that the proceeding for realisation of the fine amount was barred by limitation in view of the provisions of Section 70 Indian Penal Code and, therefore, the proceeding for realisation of fine be dropped. Sri Tripathi, the learned Advocate for the petitioners, states that the petitioners have now served out the sentences imposed in default of payment of the fines.

3. A rejoinder was filed to that petition by the State of Bihar urging that the realisation of fine was not barred by limitation, inasmuch as, the order of the court below with regard to the fine had merged in the order of the Supreme Court passed on 7-9-71 and that order of the Supreme Court had to be executed and not the order of the lower court and also that the convicted persons having got the order for realisation of fine stayed, the period during which realisation of fine was stayed, must be excluded in computing the period of limitation. The question arose whether the condition imposed by this Court while granting stay of realisation of fine had been complied with and the State was asked to adduce evidence. It appears that on 18-12-76 the Government Pleader had also filed a petition under Sec. 13(1) of the Ordinance before the District Judge. Ultimately, by his order dated 2-3-76, the learned Sessions Judge held that in all probability the condition of furnishing security for the stay of realisation of fines during the pendency of the appeals in this Court had been fulfilled, that admittedly the realisation of the fines during the pendency of the appeals before the Supreme Court had remained stayed and that if the periods during which the appeals were pending in the High Court and the Supreme Court were excluded, the period of six years since the date of the sentences had not expired and, therefore, the fines were recoverable and that the proceeding for their realisation was not barred by limitation. He further held that the reason for not taking steps for realisation of the amount of fines was that the properties of the petitioners were under attachment and that was sufficient reason within the meaning of Sec. 386 of the Code of Criminal Procedure, 1898 for the recovery of the fines even though the petitioners had already served out the sentences of imprisonment in default of payment of fine. As regards the application under the Ordinance filed by the Government Pleader, the learned Sessions Judge pointed out that would be a matter for consideration by the Court of the District Judge. It is against this order that the present applications by the two petitioners are directed.

4. Sri Tripathy appearing on behalf of the petitioners in both the revision applications first contends that the learned Sessions Judge was wrong in holding that the realisation of the amount of fine was not barred by limitation. To appreciate that contention it is necessary to set out Sec. 70 of the Indian Penal Code which runs thus:—

“The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.”

5. The argument put forward on behalf of the petitioners is that the expression “date of sentence” in Sec. 70 I.P.C means the date on which the order of conviction and sentence was passed by the trial court and not the date on which the appeals before the High Court or the Supreme Court were disposed of. He further contended that if the date of order of the trial court, namely, 24-7-64 is taken into consideration as the starting point of limitation, the proceeding for realisation of the fine was barred by limitation on 22-12-75 as the period during which the appeal remained pending in the High Court could not be excluded because there was no stay of realisation of fine so far as these petitioners are concerned, in as much as, the conditions for stay of realisation were not fulfilled by these petitioners and the finding of the learned Sessions Judge, to the contrary, is incorrect and based on conjectures and surmises I will assume for the purposes of this case that it has not been established that the operation of the sentence of fine was stayed during the pendency of the appeals in this Court, for in my opinion, the plea of limitation still must fail.

6. It is not disputed that in computing the period of limitation, the period during which the appeals remained pending in the Supreme Court has to be excluded and also that if that period is excluded, the realisation of fine was not barred by limitation on 24-9-73 when the distress warrant was issued by the learned Sessions Judge even if 24-7-64 is taken as the date of the sentence for the purpose of computing the period of limitation. Thus, in any view of the matter, when the distress warrant was issued by the learned Sessions Judge on 24-9-73, the realisation of the fines was not barred by limitation. Now it is manifest, and indeed it can not be seriously contended, to the contrary, that issue of distress warrant is step in the proceeding for realisation of fine. Construing the expression “levied” occurring in S. 70 of the I.P.C in Mahtab Singh v. State of U.P ((1979) 4 SCC 597 : AIR 1979 SC 1263) : (1979 Cri LJ 1077), a Bench of the Supreme Court observed as follows (para 8):—

“Section 70 says that the State shall levy fine within six years from the date of the sentence. To levy is to realise or to collect. It is clear that what is meant is that within six years the State must commence proceedings for realisation, not complete it. It is beyond the State's power to complete the realisation proceedings, but it is within its power to initiate such proceedings. What is contemplated is that the State shall commence recovery proceedings. Once such steps are taken, the plea of limitation is out of bounds for the sentences…….” (emphasis supplied).**

7. Thus, what Sec. 70 requires is that within six years from the date of the sentence the State must commence proceedings for realisation of the fine imposed not complete it and that once such steps are taken, “the plea of limitation is out of bounds for the sentences.” By issuing the distress warrant the State had commenced proceedings for realisation of the fines on 24-9-73 which was admittedly within six years from the date of the sentence and, therefore, according to the decision of the Supreme Court, “the plea of limitation is out of bounds for the sentence”. Shri Tripathi urges that in the Supreme Court case actually the point for decision was different, namely, whether the period during which the realisation of the fine was suspended because of the order of the superior court should or should not be excluded in computing the period of limitation and that the aforesaid observations of the Supreme Court are obiter. But it is well settled that even the obiter of the Supreme Court is binding on this Court. I am unable to regard the said observations of the Supreme Court as mere incidental observations. The observations contain the considered view of the Supreme Court regarding the interpretation of the expression ‘levied’ in Sec. 70, Indian Penal Code and thus constitute the law laid down by the Supreme Court and are, therefore, under Art. 141 of the Constitution binding on all. The plea of limitation must, therefore, fail.

8. Though, it is not necessary to decide the question in view of the aforesaid conclusion, I would like to state that I find it difficult to accept the argument that even in a case where the sentence of fine has been computing (sic) the period of six years specified in Sec. 70 must be the date on which the trial court had passed the sentence. The decision of the Supreme Court in Palakdhari Singh v. State of Uttar Pradesh (AIR 1962 SC 1145) : (1962 (2) Cri LJ 256) is no authority for that proposition. It was no doubt, held in that case that the date of passing of the sentence under Sec. 70 of the I.P.C means the date of passing of the sentence by the trial court and not the date on which the revision against that order was dismissed. But in that case, by the revisional order the initial sentence passed by the trial court had not been interfered with or modifided in any way. The Supreme Court decision aforesaid is, therefore, clearly distinguishable and the question is, therefore, open for decision by this Court.

9. The words “the sentence” occurring in the expression “within six years after the passing of the sentence” in the context obviously means the sentence by which the fine sought to be levied was imposed. Now in a case where the sentence of fine has been modified by the superior court, the fine which is sought to be levied is the fine specified in the order of the superior court. Sec. 70, Indian Penal Code prescribed the period within which the fine imposed by the sentence can be levied or in other words the period of limitation for the execution of the sentence of fine. The expression “sentence” in Sec. 70, therefore, must mean the sentence which is capable of execution. In a case where the sentence of fine imposed by the trial court has been modified by a superior court, the sentence of the trial court is not capable of execution as it has caused to exist having been superseded by the order of the superior court in whose order, the order must be deemed to have merged. In such a case, the sentence which is capable of being executed is the sentence of the superior court. It is well settled that when the appellate court passes a decree, the decree of the trial court is merged in that of the appellate court, and it is the latter alone that can be executed. In Jowad Hussain case (AIR 1926 PC 93), the Privy Council held that time runs from the date of the decree capable of execution and that is the decree of the appellate court superseding that of the court of first instance. The doctrine of merger of the order of the original court in the order of the superior court is not confined to decrees of civil court but applies wherever the superior court or tribunal passes an order in an appeal or revision against the order of the inferior court or Tribunal. See the decision of the Supreme Court in Collector of Customs v. East India Commercial Co. Ltd. (AIR 1963 SC 1124) in which the Supreme Court held that the appellate order is the operative order after the appeal is disposed of and that the original order passed by the Collector of Customs merged in the order of the appellate authority, the Central Board of Revenue, disposing of the appeal. The conclusion, therefore, is irresistible that in a case where the sentence of fine has been modified on appeal by a superior court, the word “sentence” in the expression “within six years after passing of the sentence” occurring in Sec. 70 I.P.C means the sentence of the superior court and not the sentence passed by the trial court and the period of six years has to be computed with reference to the date of the order of the superior court and not of the court of first instance.

10. The construction that even in a case where the sentence of fine has been modified by the superior court on appeal etc. the word “sentence” in the aforesaid expression in Sec. 70 I.P.C means the sentence of the trial court will lead to an obvious anomaly. It is quite possible to visualise a case in which the appeal against the conviction and sentence of fine of the trial court is decided more than six years after the date of the sentence passed by the trial court and instead of reducing the fine, the superior court has enhanced the fine and during the pendency of the appeal it had passed no order staying the realisation of fine imposed by the trial court. In such a case, if the word “sentence” in the expression “within six years after the passing of the sentence” in Sec. 70, I.P.C is taken to mean the “sentence of the trial court” the enhanced fine would become irrecoverable, its recovery being barred by limitation. Obviously, such a construction cannot be accepted unless the words used are such that they are incapable of any other construction. The words used, as I have shown earlier, are not of that character. We may not attribute to the legislature an intention that the date of commencement of the period of limitation prescribed by S. 70 in a case of modification by the superior court of the sentence of fine imposed by the trial court should be the date of the order of the superior court if the amount of fine has been enhanced, and it would be the date of the order of the trial court if the amount of fine has been passed. The context and the object, therefore, both support the conclusion that the date of sentence in the case of an order of sentence which has been modified is the date on which the order modifying the sentence of the trial court was passed and not the date on which the trial court passed the order which has been modified.

11. It is true that the decision of a learned single Judge of the Allahabad High Court reported in AIR 1967 All 276 : (1967 Cri LJ 679) supports the contention advanced by Sri Tripathi but the matter, 1 say so with respect, does not appear to have been fully considered and all relevant considerations do not appear to have been taken into account, and the learned single Judge who decided the case appears to have assumed that the question was concluded by the decision of the Supreme Court in AIR 1962 SC 1145 : (1962 (2) Cri LJ 256) (supra). I must, therefore, respectfully decline to follow the aforesaid decision of the Allahabad High Court.

12. Thus, the date of the sentence for the purpose of computing the period of six years must be the date of the order of the Supreme Court which modified the sentence of fine and if that date is taken as the starting point of limitation the proceedings for recovery of the fines are, admittedly, not time barred. For this reason also the plea of limitation must fail.

13. The other argument advanced is that in view of the circumstance that the petitioners have served out the sentences of imprisonment in default of payment of fine, no steps for realisation of fine should be taken. Though reference in the court below was made to S. 386 of the Code of Criminal Procedure, 1898 (hereinafter called “the old Code”), it seems that the case is governed by the Code of Criminal Procedure, 1973 in which the corresponding Section is 421. Now it is obvious that neither S. 386 of the old Code nor S. 421 of the new Code completely debars the Court from realising the fine, if the person convicted, has already served out the sentence imposed in default of payment of fine. What they require is that in such cases, no court shall issue such warrant, unless for special reasons to be recorded in writing, it considers it necessary so to do. Now in terms S. 421 apply only when the application to issue the warrant for realisation of fine is filed after the aforesaid sentence in default of payment of fine, has been served out. Admittedly, in this case the sentence was not served out till 24-9-73 when distress warrant was not issued. But Sri Tripathy contends that the principle contained in Section 421 of the Code should be applied in such a case also. The decision in K. Vaman Sheonoy v. Collector of South Kanara, Mangalore (AIR 1964 Mys 64) : (1964 (1) Cri LJ 418) and the other decisions referred to therein to which our attention has also been drawn, do support the contention that the principle should be applied even in the cases where warrants were issued before the convict had served out the full term of imprisonment in default of payment of fine. But the aforesaid decisions only lay down that warrant cannot be executed unless special reasons are shown. In this case, the learned Magistrate has recorded special reasons for not recalling the warrant issued. According to him, the reason for not taking steps for realisation of fine earlier was not (that) the properties of the petitioners were under attachment. In Digamber Kashinath Bhavarthi v. Emperor (AIR 1935 Bom 160) : (1935-36 Cri LJ 1034) the Bombay High Court pointed out that special reasons mentioned in S. 386 of the old Code should be reasons accounting for the fact that the fine had not been recovered from the convict before the sentence in default had been served out and any reasons which are directed to that point would be relevant applying that test, I am unable to say that the reasons-given by the learned Sessions Judge is not relevant. It must be pointed that, that the discretion is of the learned Sessions Judge and sitting in revision it may not be interfered with lightly. No other ground for interference with the impugned order has been urged. In the result, both the revision applications are without merit and they are, accordingly, dismissed.

U.C Sharma, J.:— I agree.

14. Application dismissed.