1. This is a reference by the District Magistrate of Etawah on an application in revision. Three men named Behari Singh, Surat Singh and Sundar Singh were prosecuted for an offence under Section 25, Northern India Ferries Act (18 of 1878), that is, for not paying the proper toll at a ferry. The Magistrate's writing is not very legible, but I understand that the finding is that no part of the toll due was paid by them. They said that they paid a certain amount and that there was some dispute about the change. This explanation was not accepted and the Magistrate found them guilty. As, however, the offence was in his opinion trifling and no previous conviction was proved against them he released them after due admonition under Section 3, First Offenders' Probation Act. The result of this order was that they escaped payment altogether. The District Magistrate has referred the case because he doubts whether an order may be passed under Section 3, First Offenders' Probation Act, in a case where the offence is punishable with a fine only, An offence under Section 25, Northern India Ferries Act, is punishable only with fine which may extend to Rs. 50. Section 3, First Offenders' Probation Act, provides that it may be applied to persons who have been found guilty of theft and certain other offences or 'of any offence punishable with not more than two years' imprisonment.' The District Magistrate remarks that the meaning is not entirely clear and it is possible to argue that 'any offence punishable with not more than two years' imprisonment' includes 'an offence punishable only with fine'. But the scheme of the Act, he adds, seems to imply that it is meant for protecting first offenders from being sent to jail and, in that view of the case, it would seem that the order of the Sub-divisional 'Magistrate is not justified by law. He referred the case with the recommendation that the Magistrate's order under the First Offenders' Probation Act be set aside.
2. With regard to the Magistrate's suggestion that the scheme of the First Offenders' Probation Act seems to imply that it is meant for protecting first offenders from being sent to jail, learned Counsel for the persons concerned, who opposed the reference, argues that even where a fine only can be imposed a sentence of imprisonment can be imposed in default of payment of that fine, this being provided by Section 64. Penal Code. This is true, but I do not think the argument is decisive. As I understand Section 3, the words 'any offence punishable with not more than two years' imprisonment' mean any 'offence punishable with imprisonment of not more than two years', and, if this construction is adopted there can be no doubt that it was intended to exclude offences punishable by fine only. It is, I think, difficult to say that an offence punishable with fine only is 'punishable with not more than two years' imprisonment.' The Legislature clearly seems to have been contemplating only cases where imprisonment is provided as a punishment and not cases where fine only is provided as punishment. Had it been the intention to include offences punishable with fine only, it would have been easy to add the words 'or with fine only' after the words 'punishable with not more than two years' imprisonment.' I am, therefore, of opinion that this reference must be accepted and another order substituted for the order passed by the Magistrate. Learned Counsel has referred to the provisions of Section 4, First Offenders' Probation Act, and suggested that the men concerned should be released on giving security, but I do not think that this is an appropriate provision to apply in such a case. There is no reason why they should be allowed to escape payment of the toll altogether and that will be the result of the application of Section 3 or Section 4 of this Act. I accordingly accept this reference, set aside the Magistrate's order and substitute a fine of Rs. 5 in the case of each person concerned, with one month's simple imprisonment in defeault of payment. Out of the fine, if realized, the amount due on account of the toll will be deducted and paid to the contractor to whom it is due.