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Ramaswamy Iyer Agnellus Lawrence Gopalan Vs. the Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal;Limitation
CourtMumbai High Court
Decided On
Case NumberAppeal No. 42 of 1961
Judge
Reported inAIR1963Bom21; (1962)64BOMLR440; 1963CriLJ152; ILR1962Bom523
ActsIndian Penal Code (IPC), 1860 - Sections 68, 69, 70 and 409; Army Act - Sections 3, 69 and 174; ;Code of Criminal Procedure (CrPC) , 1898 - Sections 386, 386(2) and 386(3) - Schedule - Rules 5, 10 and 11
AppellantRamaswamy Iyer Agnellus Lawrence Gopalan
RespondentThe Union of India and anr.
Appellant AdvocateV.H. Gumaste, Addl. Govt. Pleader
Respondent AdvocateK.R. Bengeri and ;C.K. Bengeri, Advs.
Excerpt:
indian penal code (act xlv of i860), section 70 - criminal procedure code (act v of 1898), section 386--army act (xlvi of 1950) sections 174, 69--expression 'levy' in section 70 indian penal code, whether means actual realization of fine--whether limitation prescribed in section 174 of army act for realization of amount of fine imposed by court martial.;the expression 'levy' in section 70 of the indian penal code, 1860, means to seize for the purposes of collecting the fine or to enforce an execution for a certain sum. it does not mean the actual realization of the fine.;collector of broach v. ochhavlal bhikalal (1940) 43 bom. l.r. 122 and mir ahmad v. collector, peshawar dist. [1943] a.i.r. pesh. 56, referred to.;the period of limitation for the recovery of fine awarded by the court..........ex-army officer. on 14th january 1955 he was convicted by a court martial under section 409 indian penal code and was sentenced to suffer three years rigorous imprisonment and to pay a fine of rs. 40,000/-. the military authorities sent a copy of the sentence to the judicial magistrate, first class, nasik, for the purpose of recovering the amount of fine. the magistrate in his turn, in execution of the order of sentence, attached the following properties on 6th november 1955:1. three life insurance policies;2. saving bank account of rs. 10,000/- in the punjab national bank, nasik branch;3 a radio; and4. a motor car bearing registration no. bml 2403;and since the date of the attachment the property has been taken in the custody of the court. the car has subsequently been sold for rs......
Judgment:

Tambe, J.

1. Facts material for the purposes of this appeal in brief are: The petitioner Mr. Gopalan is an Ex-Army Officer. On 14th January 1955 he was convicted by a Court Martial under Section 409 Indian Penal Code and was sentenced to suffer three years rigorous imprisonment and to pay a fine of Rs. 40,000/-. The Military Authorities sent a copy of the sentence to the Judicial Magistrate, First Class, Nasik, for the purpose of recovering the amount of fine. The Magistrate in his turn, in execution of the order of sentence, attached the following properties on 6th November 1955:

1. Three Life Insurance Policies;

2. Saving Bank Account of Rs. 10,000/- in the Punjab National Bank, Nasik Branch;

3 A Radio; and

4. A motor car bearing registration No. BML 2403;

and since the date of the attachment the property has been taken in the custody of the Court. The car has subsequently been sold for Rs. 4,675/- and the amount is in Court. Petitioner's wife Mrs. C. V. Gopalan filed before the Magistrate an objection to the attachment under Rule 6 of the Rules framed under Section 386 of the Criminal Procedure Code. She claimed that she was the owner of the Life Insurance Polices, the Savings Bank Account and the Radio. The daughter in her objection claimed the motor car as belonging to her. After holding a summary inquiry the Magistrate dismissed the claims made by Mrs. Gopalan as well as by the daughter of Mr. Gopalan by his order dated the 22nd of October 1956. Both Mrs. Gopalan as well as the daughter of Mr. Gopalan filed different suits challenging the order made by the Magistrate in the objection cases, in the Court of the Joint Civil Judge, Senior Division, Nasik. The suit instituted by Mrs. Gopalan was Civil Suit No. 45 of 1957 and that instituted by the daughter was Civil Suit No. 586 of 1957. Both these Civil Suits were consolidated for the trial and were decided by the learned Judge on the 23rd of January 1959. The decision in short was that the three Life Insurance Policies belonged to Mr. Gopalan, the Bank Account and the Radio belonged to Mrs. Gopalan, and the motor car belonged to Miss Gopalan. Against these two decisions of the Civil Judge, the Government has preferred two appeals in this Court. They are First Appeal No. 483 of 1960 and First Appeal No. 322 of 1959. Mrs. Gopalan also has filed cross objections claiming the Life Insurance Policies as her own property, and both these appeals are still pending. During the pendency of these two appeals Mr. Gopalan filed an application on 16th of February 1961 that for reasons stated by him in this application both these appeals have become infructuous and therefore they may be dismissed with costs. He similarly prayed that the cross-objections of Mrs. Gopalan in which she claimed the three Insurance Policies as belonging to her should also be dismissed, and he further prayed that the three Life Insurance Policies be returned to him.

2. The ground on which this application is founded is that under Section 70 of the Indian Penal Code the amount of fine has to be levied within a period of six years from the date of sentence. The sentence of fine was imposed on him on 14th January 1955. On 14th of January 1961 the said period of six years had elapsed. Till that date the amount of fine had not been realised by the Magistrate attaching the property. After 14th January 1961, as an effect of the provisions of Section 70 of the Indian Penal Code, the Magistrate had no jurisdiction to proceed to realise the amount of fine. As it is no more possible for the Magistrate to realise the amount of fine, the appeals have become infructuous. In short, his contention was the word 'levy' occurring in Section 70 of the Indian Penal Code means 'realise'. This application was heard on 20th February 1961 and was dismissed on the same day, the learned Judge holding that there is no reason to construe the word 'levy' to mean 'realise'. Against this order of the learned Judge this Letters Patent Appeal has been filed.

3. Mr. Gopalan has argued his own appeal, and if we may say so, with considerable ability. It is his contention that the word 'levy' used in Section 70 of the Indian Penal Code means 'realize'. Mere effecting an attachment of the property within a period of six years is not sufficient, but the executing Court must complete the entire process of attachment and sale within a period of six years, If the entire process is not completed within a period of six years, then the Magistrate ceases to have jurisdiction to take any further steps in that matter. In support of his contention he also referred us to the expression 'levy' used in Sections 68 and 69 of the Indian Penal Code. In support of his argument he also referred us to the decisions in Mir Ahmad v. Collector, Peshawar District, AIR 1943 Pesh 56 and Collector of Broach v. Ochhavlal Bhikalal : AIR1941Bom158 p>

4. On the other hand, it is the contention of Mr. Gumaste who appears for the 1st Respondent that Section 70 of the Indian Penal Code has no application inasmuch as it is a conviction by a Court Martial under the Army Act, and in the Army Act there is no provision similar to the one under Section 70 of the Indian Penal Code. Under Section 174 of the Army Act the Military Authorities concerned have a power to send a copy of the sentence to any Magistrate in India for realisation of the amount and no time limit has been prescribed in that Section for realisation of the amount of fine awarded by a Court Martial. In the alternative it is the contention of Mr. Gumaste that the expression 'levy' used in Section 70 of the Indian Penal Code does not mean 'realise' but only means 'enforce' by issuing a process for realisation of fine by attachment and sale of the property of the accused. According to him, if an attachment is effected within a period of six years from the date of sentence Section 70 of the Indian Penal Code had been fully complied with.

5. It is indeed true that the conviction of the appellant is by a Court Martial. But it is difficult to accept the argument of Mr. Gumaste that the conviction of the appellant is exclusively under the Army Act. On the other hand, as already stated, the record of the case shows that the conviction is under Section 409 of the Indian Penal Code. Mr. Gumaste has referred us to Section 69 of the Army Act and the material part of that section provides that:

'Subject to the provisions of Section 70, any person subject to this Act who at any place in or beyond India commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be tried by a court-martial and, on conviction, be punishable as follows, that is to say,

(a) if the offence is one which would be punishable under any law in force in India with death or with transportation, he shall be liable to suffer any punishment, other than whipping, assigned for the offence, by the aforesaid law and such less punishment as is in this Act mentioned; and

(b) in any other case, he shall be liable to suffer any punishment, other than whipping, assigned for the offence by the law in force in India, or imprisonment for a term which may extend to seven years, or such less punishment as is in this Act mentioned.

Having regard to the aforesaid provisions of this section, in our opinion, all that the section provides is to empower the Court Martial to take cognizance of and try civil offences as if they were offences under the Act. Civil offence has been defined under Section 3(ii) of the Army Act to mean 'an offence which is triable by a criminal court'. But for the provisions of Section 69 a Court Martial would not have jurisdiction to take cognizance of and try any offence which was triable by regular criminal Courts, and it is for this purpose that Section 69 has been enacted. That section also puts certain limitations in the matter of imposition of sentence. We are unable to read anything in this section which relates to the recovery of the fine awarded by a Court Martial. The apposite section which speaks about realisation of fine awarded by a Court Martial is Section 174 of the Army Act. The material part of that section is in following terms:

'When a sentence of fine is imposed by a court martial under Section 69......... a copy of such sentence signed and certified by the confirming officer .........may be sent to any Magistrate in India, and such Magistrate shall thereupon cause the fine to be recovered in accordance with the provisions of the Code of Criminal Procedure, 1898......... for the levy of fines as if it were a sentence of fine imposed by such Magistrate'.

Now this section creates a fiction and that fiction is that when a copy of the sentence of fine awarded by a Court Martial is sent to any Magistrate in India, he gets jurisdiction to recover the amount of fine as if the sentence of fine awarded by the Court Martial is a sentence imposed by the Magistrate himself. That being the fiction created by this section, it would necessarily follow that his powers to recover the amount of fine awarded by the Court Martial are coextensive with his powers to realise the fine imposed by him. In the instant case, the sentence of fine imposed by the Court Martial is under Section 409 of the Indian Penal Code. The power of the Magistrate to whom a copy of this sentence has been sent for realisation would, therefore, be coextensive only with his power to realise a sentence of fine imposed by him under Section 409 of the Indian Penal Code. There cannot be any dispute that the powers of the Magistrate to realise the fine imposed by him under Section 409 are subject to the limitations imposed by Section 70 of the Indian Penal Code. The first contention raised by Mr. Gumaste that there is no period of limitation for the recovery of fine awarded by the Court Martial under Section 409 of the Indian Penal Code through the agency of a Magistrate therefore, should fail.

6. That brings us to the next question relating to the construction of expression 'levy' occurring in Section 70 of the Indian Penal Code. Part of that section material for the purposes of this case reads:

'The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence ...................'

This section or any other provision of the Indian Penal Code does not prescribe the procedure by. which the fine imposed has to be levied. The section only speaks of the period of limitation within which the fine imposed has to be levied. The procedure relating to the realisation of fine is providedin Section 386 of the Code of Criminal Procedure and the rules framed thereunder. The procedure prescribed in Section 386 is two-fold; viz. (1) issue of a warrant for levy of the amount of sentence by attachment and also of movable property belonging to the accused; and (2) issue of 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 accused. Sub-section (3) of Section 386 provides that when a Criminal Court issues a warrant to the Collector for realisation of the amount of fine, the warrant itself shall be deemed to be a decree, and the Collector the decree-holder within the meaning of the Code of Civil Procedure, The only limitation on the power, either of the Magistrate or the Civil Court in this matter is not to execute the decree by process of arrest and detention of the accused in prison for non-payment of the fine. Sub-section (2) of the section empowers the State Government to make rules regulating the manner in which warrants for levy of the amount of fine by attachment and sale are to be executed, and for summary determination of any claims made by any person other than the offender in respect of the property attached in execution of such warrants. We are here concerned with the warrant of attachment issued by the Magistrate, and that brings us to the rules framed under Sub-section (2) of Section 386 of the Code of Criminal Procedure.

7. Rule 5 provides that if no claim is preferred to any property attached, within one month from the date of the attachment, by any person other than the offender, the Police Officer executing the warrant shall have power to sell the property within the time mentioned in the warrant. Rules 5 to 10 prescribe the procedure that has to be followed by a Magistrate if any objection to the attachment is lodged by any person other than the offender within 30 days from the date of the attachment, and the inquiry that has to be held in respect of the objection filed. Rule 11 provides that:

'Any person whose claim has been disallowed in whole or in part by a decision under Rule 10 may, within a period of one year from the date of such decision, institute a suit to establish any right which he claims in respect of the property in dispute, but subject to the result 'of such suit if any, the decision shall be conclusive'.

8. Now, the word levy has various shades of meaning used in different context, including, 'realise'. In Webster the meaning of this word in the context of law is given as: 'To seize for the purpose of collecting money, also, to enforce (an execution for a certain sum)'.

According to the appellant we should hold that the expression 'levy' means 'realise' while according to

the 1st respondent we should hold the expression 'levy' to mean 'to seize for the purpose of collecting money, or to enforce for the execution of a certain sum'. It has to be considered which out of the two meanings of the expression 'levy' we should accept in this case. Now the rule in this matter as set by Craies on Statute Law at page 85 is in following terms:

'Of course, if the words are ambiguous, and lone construction leads to enormous inconvenience. and another construction does not, the one which leads to least inconvenience is to be preferred. The Courts will not lightly impugn the wisdom of the Legislature, and if any alternative construction, although not the most obvious, will give a reasonable meaning to the Act and obviate the absurdities or inconveniences of an absolutely literal construction, the Courts deem themselves free to adopt it.'

The subject-matter of Section 70 of the Indian Penal Code is to prescribe a period of limitation for the levy of the fine imposed by Criminal Court when it remains unpaid either in part or full. Now so far as our knowledge goes, we have not come across any legislative provision which has prescribed any limit for completing the proceedings taken in Court for the purposes of realisation of money through Court. But on the other hand, in every case the Legislature has prescribed the period within which a party seeking aid of the Court to recover money must move the court for the purposes of the recovery of the amount through Court. We see no reason to hold that the Legislature has departed from its normal practice in the present case. To hold so, in our view, would lead to startling results. It certainly is within the volition of a party that wants the aid of the Court in the matter of realisation of the money to go to the Court. But once he goes to the Court it does not depend on his volition to bring the proceedings to an end. On the other hand, as to when the proceedings would come to an end would depend on the steps taken by the party from whom the money is sought to be recovered, or steps taken at his instance, or even in certain cases steps taken by some other persons who might have no concern with the persons from whom the money is sought to be recovered. The Civil Procedure Code as well as the rules framed under Section 386 of the Code of Criminal Procedure would show that when a property of the person is attached for the purpose of realisation of the amount by its sale, a right is conferred on a person, who claims that property to belong to him, to file an objection to the attachment. The Court or authority that attaches the property then inquiries into the objection. If the objection is rejected, the party concerned has also a right to approach a Civil Court and establish his right in a regular civil suit. All these things are necessarily bound to take time depending on the time that remains at the disposal of the Court as well as the tactics adopted by the parties. These being the relevant provisions of law relating to recovery of an amount through a Court, it is difficult to assume that the Legislature had intended to prescribe a period of limitation within which all the proceedings relating to the realisation of the amount through Court have to be concluded and the property attached converted into cash. On the other hand, having regard to the context, in our opinion, the Legislature in using . the expression 'levy' in Section 70 of the Indian Penal Code had only intended to prescribe the period of limitation within which property of the debtor has to be seized for collecting the fine or in other words for enforcing an execution for the recovery of the amount of line. It is difficult to accept that the Legislature prescribed an outside limit within which the entire process, commencing from attachment of the property and ending with conversion thereof in cashby sale has to be completed. To hold so may result in tempting convicts to resort to questionable methods for preventing sale of their attached properties by protracting the proceedings.

9. It is true that the expression 'levy' in Sections 68 and 69 of the Indian Penal Code has been used in the sense 'realise'. But then the subject-matter of Section 68 and Section 69 is totally different than the subject-matter of Section 70. Sections 68 and 69 deal with the questions as to when the imprisonment of an accused person which he is undergoing for default in the matter of payment of fine is to be terminated. Necessarily, in this context the imprisonment would terminate only when the fine would be paid or the period would expire. The subject-matter of Section 70 is entirely different and that is prescribing the period of limitation for taking aid of the Court in the matter of realisation of fine. It is not an invariable rule of law that the same expression must be understood in the entire legislation in the same sense. On the other hand, as Maxwell at page 322, puts: 'The same word may be used in different senses in the same statute and even in the same section'. It is normal rule that while ascertaining the meaning of a section of an Act the proper course is to ascertain that meaning from the consideration of the section itself. It is only if it is riot possible to do so, a reference to other section need be made. For reasons stated above, in our opinion, the meaning of the expression 'levy' in Section 70 of the Indian Penal Code is to seize for the purposes of collecting the fine or to enforce an execution for a certain sum.

10. Now, the period of limitation prescribed in Section 70 of the Indian Penal Code is six years from the date of sentence. The sentence is awarded on the 14tb of January, 1955 and the properties in question have been seized and attached on the 6th of November, 1955. There cannot be any doubt that the properties have been seized for the purposes of collecting the amount of fine. There is therefore no bar and we see no bar in Section 70 of the Indian Penal Code prohibiting the Magistrate from dealing with the property and proceeding to sell that property for the purposes of realisation of the fine. The appeal filed by the accused, therefore, is liable to be dismissed.

11. The two decisions on which reliance is placed by the appellant are, in our opinion, also not of any assistance to the appellant. All that is said in the case of : AIR1941Bom158 , is that the Darkhast filed after six years to recover fine by sale of immovable, property of the offender is barred under Section 70 of the Indian Penal Code. We are not dealing here with any Darkhast, filed after a period of six years. On the other hand, as shown above, a Darkhast had already been filed before the expiry of period of six years. This case is no authority for holding that even it the Darkhast is filed before the expiry of a period of six years, the attached property could not be put to sale after a period of six years by virtue of the provisions of Section 70 of the Indian Penal Code. The judgment in Peshawar case does not fully state the facts of the case and it is therefore, difficult to accept that it supports the petitioner. On the other hand in that case the afore-stateddecision in the Bombay Law Reporter had been followed, and that lead to an inference that the

facts of that case may also be similar to the one of the Bombay case.

12. In the result, the appeal fails and is dismissed.

13. The appellant requests that no costs should be imposed on him, as he is now in very poor circumstances. The learned Additional Government Pleader has very graciously agreed to forgo costs. We, therefore, make no order as to costs.

14. In view of the decision, it is not necessary to deal with the two First Appeals Nos. 322 of 1959 and 483 of 1960. They may be placed before appropriate Bench in due course.

15. Appeal dismissed.


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