Abdul Gani Appct. v. The State Of Madhya Pradesh Non-Appct.

1. This is a petn under Article 226 of the Constitution.

2. The petnr was convicted of offences under Ss. 120B, 420 & 468/109, I.P.C by a Special Tribunal constituted under Ordinance No. XXIX(29) of 1943 & Ordinance LI (51) of 1944 & sentenced on 11-7-1946 under S. 120-B to R.L for a period of five years & to pay a fine of Rs. 40,000 or, in default of payment of fine, to undergo R.I for a further period of 18 months. He was sentenced under S. 420, I.P.C to undergo R.I for a period of two years & to pay a fine of Rs. 2000 on each of three counts. In default of payment of fine on each of these three counts, he was sentenced to undergo R.I for a period of six months. No separate sentence was passed in respect of the offence under S. 468/109, I.P.C The sentences of imprisonment on the petnr were ordered to run concurrently. On 19-1-1950, the then Provincial Govt. issued an order granting remissions of sentences on a certain scale to persons convicted of offences with the exception of some particular offences. The remissions were further liberalised by another order passed by the Govt. on 21-1-1950. According to this latter order, prisoners sentenced to R.I up to a term of ten years were ordered to be released provided on 26-1-1950 they had served half their sentence inclusive of remissions previously earned.

3. According to the petnr., he actually commenced serving his sentences on 12-12-1947 & states that by 26-1-1950 he had served, including remissions, a sentence of four years, one month & nine days which was more than half of the sentence passed on him & that consequently he was entitled to be released from jail. He further points out that the Superintendent of the jail had actually endorsed on his history ticket under date 26-1-1950. “Released by order of Govt. Madhya Pradesh” but that this endorsement was later scored out & instead another endorsement “Granted sixty days remission of I.R.D” was made by the Superintendent. According to the petnr., the cancellation by the Superintendent of the previous order is “extremely irregular, illegal & without jurisdiction”. He therefore seeks his immediate release from jail.

4. It is quite clear, & the petnr. himself accepts the position, that the unserved part of the substantive imprisonment awarded to him was remitted by Govt. & that what he has now to serve is the imprisonment awarded to him in default of payment of fine. According to him, the imprisonment awarded in default of payment of fine has to be added to the substantive imprisonment which he was undergoing & it is the aggregate of these two types of imprisonment which has to be taken into consideration for the purpose of determining the extent of remission due to him.

5. It seems to us that there is no substance whatsoever in the petnr's contentions. We have seen the order of 19-1-1950 as well as that of 21-1-1950 issued by the Provincial Govt. of C.P & Berar. Neither of these orders remits sentences of fine imposed by Cts upon convicts. This was made clear by the Provincial Govt. in their Memo No. 142-126-III dated 23-1-1950 addressed to the Inspector-General of Prisons, C.P & Berar, wherein they said that remissions should only be allowed in substantive sentences & not in sentences in default of payment of fine. It was within the province of the Govt. to make the clarification as remission of sentences under Section 401 of the Cr PC, was entirely within their discretion. In the circumstances, we are unable to see how we can interfere in this case under Article 226 of the Constitution.

6. When a person undergoes imprisonment in default of payment of fine, it is obvious that imprisonment can come to an end in one of these three ways: efflux of time, payment of fine or remission of fine. In our opinion, there is no scope under Section 401 of the Cr PC for merely remitting a sentence in default of payment of fine. For, what that section speaks of is a remission of the punishment for an offence. Now, here, the punishment is really payment of fine & under S. 401 what the Govt. can do is to remit that punishment wholly or in part. In other words, what that section appears to us to empower the Govt. is to remit in whole or in part a substantive sentence, whether of fine or imprisonment (because that would be the punishment for the offence awarded by the Ct.), passed on a person but not imprisonment in default of payment of fine. Imprisonment in default of payment of fine is suffered by a person not because he committed an offence but because he has failed to pay the fine inflicted on him for the offence. There is thus, in our opinion, a distinction between the sentence of imprisonment awarded to a person for committing an offence & the sentence of imprisonment ordered to be undergone by such person in default of payment of fine.

7. There is also an additional reason why we think that this petn. must fail. The imprisonment which a person is ordered to undergo for non-payment of fine is only a contingent imprisonment. By paying the fine, before the substantive term of imprisonment comes to an end, a person can well avoid undergoing the sentence in default of payment of fine. Since the sentence is contingent, it cannot be tacked on to the substantive sentence, at any rate, not till the substantive sentence comes to an end. In that view, it is clear that the petnr. was not undergoing, before 26-1-1950, a sentence of imprisonment in default of payment of fine. That being so, the orders of 19-1-1950 & 21-1-1950 which only applied to sentences which prisoners were undergoing before 26-1-1950, do not apply to the petnr. in so far as the sentence of imprisonment in default of payment of fine is concerned. The petnr. is therefore not entitled to a remission of any part of the sentences.

8. As regards the argument that the Superintendent of jail could not validly cancel the first endorsement made by him on the petnr's. history ticket, all that we need say is that remissions can be granted by Govt. alone & not by a Superintendent. When, therefore, a Superintendent erroneously interprets Govt's. orders & makes an endorsement of release on a history ticket, he can correct that error. There is no provision of law nor any principle which precludes that being done. In this view, we see no reason to Interfere & accordingly dismiss this petn. Costs of the paper book shall be borne by the petnr.

9. Petition dismissed.