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Jadabendranath Panja v. Emperor Opposite Party.
Structured Summary of the Provided Opinion
Factual and Procedural Background
The petitioner was convicted on 27 January 1932 under Section 17(2) of the Criminal Law Amendment Act of 1908 for promoting an unlawful meeting. Mr. Section P. Ghose, acting as a Special Magistrate (appointed under Ordinance No. 11 of 1931), sentenced the petitioner to rigorous imprisonment for two years and six months and to pay a fine of Rs. 500, with a default term of rigorous imprisonment for six months.
An order for execution of the fine was made on 8 March 1932, and during the period the petitioner was serving his sentence Rs. 44-8-0 was realized by attachment and sale of his movable property. Ordinance No. 11 of 1931 expired in May 1932. The petitioner alleges that no intimation of the partial realisation was given to the jail authorities, resulting in him serving the full default imprisonment of six months in addition to the substantive sentence, and that he thereby lost entitlement to a remission that would have followed from partial realisation of the fine.
On 7 March 1935 Mr. B. Sinha, acting as Sub-Divisional Magistrate of Burdwan, issued a warrant under Section 386, Criminal Procedure Code, authorising the Collector to realize the unrealised portion of the fine (Rs. 456) by civil process against immovable property. The petitioner contends that, despite settlement papers indicating landed property, no proper steps were taken to realize the fine until three years after conviction.
A Rule was therefore issued to show cause why the order issuing that warrant should not be set aside.
Legal Issues Presented
- Whether Mr. B. Sinha, who issued the warrant, was competent to issue it given that he was not the Court that passed the sentence (a Special Magistrate) nor that Special Magistrate's successor-in-office within the meaning of Section 389, Criminal P.C.
- Whether issuance of the warrant was valid when Mr. Sinha signed it as Sub-Divisional Magistrate rather than as a Special Magistrate.
- Whether the proviso to Section 386, Criminal P.C., which prevents issuing a warrant to recover a fine after the whole default term has been served unless special reasons are recorded, was properly satisfied by the reason recorded ("the petitioner was a man of dangerous character").
- Whether Section 559, Criminal P.C., or other statutory provisions (including post-expiry ordinances) could render Mr. Sinha the successor-in-office for the purposes of issuing the warrant.
Arguments of the Parties
Petitioner's Arguments
- The Court of Mr. B. Sinha was not the same Court as that of the Special Magistrate (Mr. Section P. Ghose) who passed the sentence, and therefore had no power to issue the warrant under Section 386/389.
- The warrant was signed by Mr. Sinha in his capacity as Sub-Divisional Magistrate and not as a Special Magistrate, further undermining its validity.
- Under the proviso to Section 386, where the offender has already undergone the whole of the imprisonment ordered in default, a warrant should not be issued unless special reasons are recorded in writing; the reason recorded ("man of dangerous character") is insufficient.
- The authorities had settlement papers showing the petitioner owned landed property and their failure to realize the fine earlier was due to their own laches; this would be the proper basis for any special reason to issue the warrant, but no such reason was recorded.
Crown's (Respondent's) Argument
- The Crown contended that Mr. Sinha was the successor-in-office of Mr. Ghose within the meaning of Section 389 and therefore was competent to issue the warrant for execution of the fine.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Digambar Kashinath v. Emperor, 1935 Bom 160 | Interpretation of proviso to Section 386, Criminal P.C.: the proviso is intended to avoid requiring an offender both to pay the fine and to serve the default sentence; if a warrant is to be issued after the default sentence has been served, the court must record special reasons that explain why the fine was not realized before the default imprisonment was completed. | The court followed the reasoning in Digambar Kashinath: it held that the reason recorded by Mr. Sinha ("the petitioner was a man of dangerous character") was not the kind of reason contemplated by the proviso. The court agreed that special reasons should normally explain why the fine was not recovered before the default sentence was served (for example, authorities' efforts to locate property), and because no adequate reason of that kind was recorded, the warrant was quashed. |
Court's Reasoning and Analysis
The court proceeded by examining (i) the statutory scheme governing issuance of warrants for realization of fines and successor-in-office rules, and (ii) the factual basis and the reasons recorded by the magistrate for issuing the warrant.
First, the court quoted and considered Section 386, Criminal P.C., which allows recovery of a fine by issuing warrants but contains a proviso that, where default imprisonment has already been wholly undergone, no warrant should issue unless special reasons are recorded in writing. The court also considered Section 389, Criminal P.C., which permits the judge or magistrate who passed the sentence or his successor-in-office to issue such warrants.
On the question of successor-in-office, the court rejected the Crown's contention that Mr. Sinha was the successor-in-office of Mr. Ghose. The court noted that Mr. Ghose had acted as a Special Magistrate under Ordinance No. 11 of 1931 (a special statutory appointment) and that that Special Criminal Court ceased on the expiration of the Ordinance in May 1932. Mr. Sinha, who later acted and signed the warrant as Sub-Divisional Magistrate, could not be treated as the successor-in-office of the Special Magistrate under the earlier Ordinance. The court observed that although Mr. Sinha had become a Special Magistrate on the day he made the order (under a different enactment, the Bengal Suppression of Terrorist Outrages Act, 12 of 1932), he did not make the order as a Special Magistrate under the same regime as Mr. Ghose and it was doubtful whether he even knew special powers had been conferred upon him. The court therefore held that Mr. Sinha could not be regarded as Mr. Ghose's successor-in-office for the purposes of Section 389.
The court then considered whether any statutory provision could cure this deficiency. It noted Section 4 of Ordinance 9 of 1932 (allowing a Special Magistrate to complete trials begun under the expired Ordinance), and observed that if that section had expressly provided for execution by warrant of fines inflicted under the earlier Ordinance, the difficulty might not have arisen. The court also referred to Section 559, Criminal P.C., which permits the powers of a magistrate to be exercised by his successor and allows the District Magistrate to determine who is successor-in-office when there is doubt; but the court declined to decide that point because it was not necessary for the present order and would have to be decided in appropriate proceedings if raised.
Turning to the proviso to Section 386, the court reviewed the stated reason recorded by Mr. Sinha for issuing a warrant despite the default term having been served: that the petitioner was "a man of dangerous character." Applying the principle articulated in Digambar Kashinath v. Emperor, the court held that the proviso's purpose is generally to prevent requiring an offender to both pay the fine and serve the default sentence and that the special reasons contemplated by the proviso should explain why the fine was not recovered before the default term had been served (for example, where authorities had tried but could not locate or realize assets).
The court concluded that "dangerous character" did not constitute a reason of the kind contemplated by the proviso because it did not account for the failure to recover the fine before the default imprisonment was served. While the record contained some evidence that authorities had tried to realize the fine but were unaware of landed properties, the magistrate did not record such a factual reason; nor did he record the petitioner's allegation that the authorities had settlement papers establishing ownership and that their failure was due to laches. Because the magistrate did not record a proper special reason explaining why the fine had not been realized earlier, the warrant could not properly be issued under the proviso.
On these combined grounds — lack of competence as successor-in-office and absence of an adequate written special reason under the proviso to Section 386 — the court concluded the warrant must be set aside.
Holding and Implications
Holding: The court ordered that the warrant issued by Mr. B. Sinha be set aside and the warrant quashed. In the court's words, the order of Mr. Sinha "must be set aside and the warrant quashed."
Implications:
- The direct effect of the decision is to quash the warrant issued on 7 March 1935 for realization of the unrealised portion of the fine (Rs. 456) and to set aside Mr. Sinha's order authorising realization by civil process.
- The court clarified two legal points in its reasoning: (a) a magistrate who succeeds in office as Sub-Divisional Magistrate does not automatically become the successor-in-office of a Special Magistrate who sat as part of a Special Criminal Court constituted under a now-expired Ordinance, and (b) the proviso to Section 386 requires written reasons that normally explain why the fine was not recovered before the default sentence was completed; a bare statement of dangerous character is not such a reason.
- The opinion did not purport to lay down any novel rule of law beyond applying existing statutory provisions and the principle in Digambar Kashinath v. Emperor; it does not state that a broader precedent is being established beyond these conclusions as applied to the facts of this case.
This summary is confined to the information contained in the provided opinion and does not introduce facts or inferences not present in that text.
1. In this case a Rule was issued to show cause why an order issuing a warrant under Section 386, Criminal P. C., to the Collector of Burdwan, authorising him to realise the unrealised part of a fine imposed on the petitioner in 1932 by a Special Magistrate under Section 17 (2), Criminal Law Amendment Act, should not be set aside.
2. The petitioner was convicted on 27th January 1932, under Section 17 (2), Criminal Law Amendment Act of 1908 for having promoted a meeting under the auspices of the Burdwan Congress Committee which had been declared unlawful. The case was tried by Mr. Section P. Ghose, special Magistrate, Burdwan, who sentenced the petitioner to undergo rigorous imprisonment for two years and six months and to pay a fine of Rs. 500, in default to suffer rigorous imprisonment for six months more. On 8th March 1932, an order was made for the execution of the fine and subsequently, while the petitioner was serving his sentence, a sum of Rs. 44-8-0 was realised by attachment and sale of his moveable properties. In May 1932 Ordinance No. 11 of 1931, under which Mr. Section P. Ghose had been appointed a Special Magistrate, expired. The petitioner alleges that although part of the fine was realised, no intimation of such realisation was given to the jail authorities, with the result that the petitioner had to serve out the whole term of imprisonment inflicted in default of payment of the fine, namely, 6 months in addition to the substantive sentence of imprisonment passed upon him. Further, he alleges that the fact of realisation of a part of the fine, if intimated to the jail authorities, would have earned for him a remission of sentence, but that he received no such remission on account of partial realization of the fine besides the usual remission for good conduct under the Jail Code. Subsequently, on 7th March 1935, a warrant was issued under Section 386, Criminal P. C., by Mr. B. Sinha, Sub-Divisional Magistrate of Burdwan, authorising the Collector of the district to realise the unrealised part of the fine, viz., Rs. 456, according to civil process by attachment and sale of the immoveable properties of the petitioner. The petitioner further alleges that although it appeared clear from the settlement papers, etc., that he had some landed properties, no proper steps were taken to realise the unrealised portion of the fine till after the lapse of three years from the date of his conviction.
3. The arguments raised on behalf of the petitioner are that the Court of Mr. B. Sinha, who issued the warrant, not being a Court of the Special Magistrate who passed the sentence or his successor-in-office, had no power to issue the warrant. Further, the warant was not signed by Mr. Sinha as a Special Magistrate but as Sub-divisional Magistrate of Burdwan. Further it has been argued that under Section 386, Criminal P. C., where the offender has suffered the whole of the imprisonment ordered to be undergone in default of payment of the fine, the Court shall not issue a warrant for the realisation of the fine, unless for special reasons to be recorded in writing it considers it necessary to do so. With regard to the first point, Ordinance 11 of 1931 provided in Chap. 1 for certain emergency powers, and in Chap. 2 for certain Special Criminal Courts, and Section 23 (included in that Chapter) provided that Courts of criminal jurisdiction may be constituted under that Ordinance of the following classes: namely, (i) Special tribunals and (ii) Special Magistrates. The note in the margin of that section is "Special Court." Section 386, Criminal P. C., provides that:
Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine by issuing certain warrants; 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.
4. Section 389 provides that:
Every warrant for the execution of any sentence may be issued either by the Judge or Magistrate who passed the sentence, or by his successor-in-office.
5. It is contended on behalf of the Crown that Mr. Sinha is the successor-in-office of Mr. Section P. Ghose within the meaning of this section. In my opinion this contention is not sound. The sentence, passed by Mr. Section P. Ghose was passed by him as a Special Magistrate forming a Special Criminal Court within the meaning of Section 23, Ordinance 11 of 1931. That Court came to an end in May 1932. Mr. Sinha, who succeeded Mr. Ghose as Sub-divisional Magistrate, cannot possibly be held to be Mr. Ghose's successor as a Special Magistrate forming a Special Criminal Court within the meaning of that section. Similarly, although Mr. Sinha became a Special Magistrate on the very day he made the order in question, he did not make the order as a Special Magistrate, and it is doubtful whether he even knew that special powers had been conferred upon him. Moreover, he was appointed a Special Magistrate under the Bengal Suppression of Terrorist Outrages Act (12 of 1932). Consequently, it is not possible to argue that on account of this appointment, he became the successor-in-office of Mr. Ghose, the Special Magistrate under the previous Ordinance, who convicted the accused and inflicted the sentence upon him.
6. Ordinance 9 of 1932 in Section 4 thereof provides that where before the expiration of the Bengal Emergency Powers Ordinance, 1931, an order has been made thereunder for the trial of any person by a Special Magistrate, but the trial has not begun, or the trial has proceeded but has not been completed, the offence may be tried or the trial completed by such Special Magistrate and such Special Magistrate shall continue to have all the powers with which he was vested under the said Ordinance. If a further provision had been made under that section for the execution by warrant of fines inflicted as part of the sentence as in the present case, no difficulty would have arisen. It is conceivable that "the difficulty might be met by applying the provisions of Section 559, Criminal P. C. That section provides that:
The powers and duties of a Judge or Magistrate may be exercised or performed by his successor-in-office. And when there is any doubt as to who is his successor-in-office, then any such Magistrate or the District Magistrate shall determine, by an order in writing, the Magistrate who shall, for the purposes of the Code or of any proceedings or order thereunder, be deemed to be the successor-in-office of such Magistrate.
7. It is not necessary to give any decision on this point, because that matter is not in issue at the present moment and will have to be decided when if at all, such an order is made in this or any other similar case. The other point raised on behalf of the petitioner is that Mr. Sinha who issued the warrant, did not record any special reason in writing within the meaning of the proviso to Section 386. The season he recorded was that the petitioner was a man of dangerous character. In my opinion this was not such a reason as is contemplated by the section. In Digambar Kashinath v. Emperor 1935 Bom 160, Sir John Beaumont, C.J. said that the Court should follow the policy which seems to have inspired the proviso to Section 386, which appears to be that in general an offender ought not to be required both to pay the fine and to serve the sentence in default. But the proviso enables a warrant to be issued for recovery of the fine even if the whole sentence of default has been served, if the Court considers that there are special reasons for issuing the warrant and in his opinion, those should be reasons accounting for the fact that the fine has not been recovered before the sentence in default has been served. I am in agreement with the remarks of the learned Chief Justice. Except in special cases it seems to me both undesirable and unfair to seek to realise a fine when the sentence ordered to be served in default of payment of the fine has already been served in full; and in my opinion the proviso is intended to deal with cases where for some sufficient reason the authorities have not been able to realise the fine before the default sentence has been served. It is true that there seems to be some evidence to show that the authorities did try to realise the fine but were not aware that the petitioner possessed landed properties.
8. On the other hand, he alleges that they had the settlement papers which they could have had examined and which would show clearly that he was the owner of the properties, and that their inability to realise the fine was due to their own laches. Whether that be true or not, that is not the reason recorded by the learned Magistrate for issuing a warrant within the meaning of the proviso to Section 386, Criminal P. C. For all these reasons, I am of opinion that the order of Mr. Sinha must be set aside and the warrant quashed.
Jack, J.
9. I agree that the order should be set aside as it appears to be a case which is not contemplated by the Criminal Procedure Code, namely, where there is no successor-in-office to the Special Magistrate. Section 559 applies where there is any doubt as to who is the successor-in-office and possibly it might be held that under that section, the District Magistrate would be empowered to appoint a successor-in-office for the purpose of these proceedings. But in this case no such appointment has been made. As regards the other point, it may be noted that although in the Bombay case, Digambar Kashinath v. Emperor 1935 Bom 160, the learned Chief Justice held that the reason given by the Magistrate was not such a reason as is referred to in Section 386, he still refused to interfere with the order for the execution of the warrant on the ground that although the reason given by the Magistrate was not such a reason, still there was a special reason in that case why the warrant should be executed, namely a reason similar to that which the prosecution alleged in the present case i.e. that the authorities had endeavoured to realise the fine but had not been able to do so in due time owing to not knowing where the properties were situated.
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