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Collector of Broach and Panch Mahals Vs. Ochhavlal Bhikalal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberFirst Appeal No. 163 of 1939
Judge
Reported inAIR1941Bom158; (1941)43BOMLR122
AppellantCollector of Broach and Panch Mahals
RespondentOchhavlal Bhikalal
DispositionAppeal dismissed
Excerpt:
indian penal code (act xlv of 1860), section 70--criminal procedure code (act v of 1898), section 386--fine,, recovery of by sale of immoveable property of offender--warrant issued for recovery of fine--darkhast filed after six years from date of sentence--limitation.;section 70 of the indian penal code, 1860, is not controlled by section 386, sub-sections (i) (b) and (3), of the criminal procedure code, 1898. section 386 of the criminal procedure code deals only with procedure for levying fine imposed under the indian. penal code. ;the warrant issued by a court passing a sentence, under section 386, criminal procedure code, to recover fine from an offender is to be deemed as a decree for certain purposes only, and is executed according to the mode laid down in the civil procedure code,..........section 386(2) (b) of the criminal procedure code authorising him to realise the amount of the fine by execution according to civil process against the immoveable property of the defaulter. this letter was sent because the opponent had not paid the amount of fine although he subsequently suffered the period of imprisonment in default of payment of the fine.2. two darkhasts were filed by the collector in 1929 and 1930 to realise the amount of the fine and a sum of rs. 4,227 was realised in execution. the third darkhast was filed in 1933 and the undivided interest of the opponent in certain immoveable property was ordered to be sold. the sale took place on june 19, 1935, but as there were no bidders the property was not sold and the darkhast was therefore disposed of. thereafter on.....
Judgment:

Divatia, J.

1. This appeal arises in execution of a darkhast to recover a certain amount by the appellant who is the Collector of Broach and Panch Mahals against the respondent. The latter had been convicted on January 12, 1929, of the offence of cheating and sentenced to three years' rigorous imprisonment with a fine of Rs. 15,000, and rigorous imprisonment for nine months in default of payment of fine. On May 10 of that year a letter was sent by the Sessions Judge to the Collector under Section 386(2) (b) of the Criminal Procedure Code authorising him to realise the amount of the fine by execution according to civil process against the immoveable property of the defaulter. This letter was sent because the opponent had not paid the amount of fine although he subsequently suffered the period of imprisonment in default of payment of the fine.

2. Two darkhasts were filed by the Collector in 1929 and 1930 to realise the amount of the fine and a sum of Rs. 4,227 was realised in execution. The third darkhast was filed in 1933 and the undivided interest of the opponent in certain immoveable property was ordered to be sold. The sale took place on June 19, 1935, but as there were no bidders the property was not sold and the darkhast was therefore disposed of. Thereafter on February 8, 1938, the present darkhast was filed to recover the balance of the fine out of the interest of the opponent in certain immoveable property.

3. The opponent contended in the course of that darkhast that as he had suffered rigorous imprisonment in default of payment of the fine, his property was no longer liable to the payment of the fine. His second contention was that under Section 70 of the Indian Penal Code the fine imposed upon him should have been recovered only within six years from the date of the sentence, and the present darkhast, which was filed in February, 1938, after the period of six years was over, was therefore time-barred.

4. The learned First Class Subordinate Judge rightly held on the first point that the claim of the darkhastdar was legal even if the opponent had undergone imprisonment in default of payment of the fine. That is clear from the provisions of the Indian Penal Code.

5. On the second point the learned Judge was of the opinion that under the provisions of Section 386(3) of the Criminal Procedure Code the warrant issued by the Collector did not become a decree of a civil Court for all purposes and that the provisions of Section 70 of the Indian Penal Code were not affected by Section 386(3) of the Criminal Procedure Code, which was added for the first time in 1923. He therefore held that the darkhast was time-barred and accordingly dismissed it.

6. This appeal is presented against that order, and it is contended on behalf of the Collector that Section 70 of the Indian Penal Code is controlled by the provisions of Section 386, Sub-sections (7) (b) and (3), of the Criminal Procedure Code. Now it is clear that under Section 70 the fine, or any part thereof which may remain unpaid, may be levied at any time within six years after the passing of the sentence. This means that the fine could not be levied after the period of six years is over except in the circumstances mentioned in that section i.e. where the person is imprisoned for a longer period than six years. Under Section 386, Criminal Procedure Code, as it stood before the amendment of 1923, whenever an offender was sentenced to pay a fine, the Court passing the sentence may issue a warrant for the levy of the amount by distress and sale of any moveable property belonging to the offender. By the amendment the power to issue a warrant has been given to the criminal Court so as to proceed against the moveable as well as the immoveable property of the defaulter. It is provided therein that the Court might issue a warrant for the levy of the amount by attachment and sale of any moveablei property belonging to the offender and it may also issue a warrant to the Collector authorising him to realise the amount by execution according to civil process against the moveable or immoveable property, or both, of the defaulter. Then Sub-section (3) provides that where the Court issues a warrant to the Collector under Sub-section (1), Clause (b), such warrant shall be deemed to be a decree, and the Collector to be the decree-holder, within the meaning of the Code of Civil Procedure, and the nearest civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree. It is lastly provided that all the provisions of that Code as to execution of decrees shall apply accordingly.

7. Relying on this new provision it is contended by the learned Government Pleader that all provisions relating to execution in the Civil Procedure could be applied to this warrant, which is to be regarded as a decree of a civil Court, and that Section 48 of the Civil Procedure Code would therefore apply to such a warrant. Under that section where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from certain dates mentioned therein. Now in the first place it is important to realise that Section 70 of the Indian Penal Code is substantive law as to the payment of fine while Section 386 of the Criminal Procedure Code relates to the procedure of its recovery. It is true that in certain matters such as the prevention of offences and maintenance of wives and children the Criminal Procedure Code provides for certain substantive rules, but it is quite clear that Section 386 deals only with procedure of levying the fine imposed under the substantive law of crimes. It is a general rule relating to the construction of statutes that in absence of an express provision, an adjective law cannot control the provisions of substantive law. It must be presumed that the legislature had the provisions of Section 70 of the Indian Penal Code in mind at the time when this new provision was introduced for the first time in 1923, and if no change was made in that section, it must be for the reason that the warrant issued under Section 386(1)(b) of the Criminal Procedure Code was to be deemed to be a decree for certain purposes only and not for all purposes. For the purpose of limitation, therefore, the substantive law contained in Section 70 was not to be affected.

8. The warrant which was to be deemed to be a decree was to be executed according to the mode laid down in the Civil Procedure. That is the only effect of Sub-section (3). But the learned Government Pleader says that under that subsection all the provisions of that Code as to execution shall apply, and that would include the application of Section 48 of the Civil Procedure Code. But that section only says that no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from certain dates. It does not prescribe any period of limitation for taking out execution. That is provided for in the Indian Limitation Act, and, if it was the intention of the legislature that the provisions of the Indian Limitation Act were to apply, it would have expressly stated that the warrant, which was deemed to be a decree, was to be governed for the purpose of execution by the Indian Limitation Act. But the fact that it does not say so, and the further fact that there has been no amendment or alteration in Section 70 of the Indian Penal Code, mean that so far as limitation i.e. the period during which the fine was to be realised was concerned, it did not contemplate any change. All that it intended to do was that over and above the moveable property of the offender the irnmoveable property could also be proceeded with by means of execution of the warrant which was to be treated for that purpose as if it were a decree, but the levy of the fine as against moveable as well as immoveable property was subject to the control of the provisions of Section 70, viz., that it was to be levied within the period of six years. We think, therefore, the lower Court was right in holding that the darkhast which was presented after the period of six years from the date of the sentence is barred under Section 70 of the Indian Penal Code.

9. The order of the lower Court is therefore confirmed and the appeal is dismissed with costs.


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