1. This is a rule obtained by the State against an order passed by Mr. Mehar Singh Cha-dha. Additional Sessions Judge of Anibala, dated81-8-1955, remanding the case to the trial Court after setting aside the conviction and sentence of the respondents. It appears that the learned Judge thought that under Section 381, Indian Penal Code, it was mandatory that if a man was convicted he shall be sentenced to imprisonment as also to fine. The State has challenged the view of the learned Additional Sessions Judge on the question of interpretation of the section and submitted that it is not incumbent on the Judge to impose a fine also.
2. The section under which the opposite party was convicted is 381, Indian Penal Code, which runs as under:
'Whoever being a clerk or servant, or being employed in the capacity of a clerk or servanis, commits theft in respect of any property in the possession pf his master or employer, shall be punished with imprisomrent of either dpscript on fora term which may extend to eeven years, and shall also be liable to fine.'
3. The words Which have to be interpreted are 'and shall also be liable to fine' and they do not mean that it is necessary that a sentence of fine shall also be imposed. The learned Additional Sessions Judge has held that this would be the meaning of the words. Both the State as well as the opposite party submit that this is not a correct interpretation and that it is not a mandatory pro-Vision of the law and that all it means is that if the Magistrate wants to impose some fine he may do so if he finds the case to be of that nature.
4. NO Indian case has been quoted before me on the meaning of the words 'shall be liable' by either of the parties, but I find that in one American case the words 'Khali be liable' came up for interpretation The Kate Heron, 14 Fed Cas 139 at p. 141 (A). In that case the definition of the word 'liable' as given by Webster's dictionary was accepted. Webster defines 'liable' thus, obliged in law or equity, subject' and says that it means 'something external which may befall us' and the words 'shall be liable to forfeiture' as interpreted by the American Court do not affect a present absolute forfeiture but only give 'a right to have the vessel forfeited upon due process of law.'
5. Similarly the words 'shall be liable' came up for interpretation in another American case where the words were 'shall be liable to ssrve as jurors', but in that case also it was held that 'shall be liable' only means that he is only likely to be and not must.
6. In other cases the word 'liable' has been interpreted to mean exposed to a certain contingency or casuality. more or less probable in other words, a future possibility or probability happening which may or may not actually occur.
7. The word 'liable' is also used in the Rulesof the English Courts under R. S. C. Order 16, Rule28(1) and it has been interpreted to mean thatthe jurisdiction is discretionary and not that tneorder must necessarily be made. See Collins v.Collins. 1947-1 All EB 793 (B).
3. Counsel for the State relied on the Chief Court judgment in Chuha v. Emperor, 18 Pun Re 1913 Cr (C). In that case under Section 302, Indian Penal Code, a man was sentenced to death and also to fine and the sentence of fine was set aside on the ground that there was the usual practice of the Court to avoid the imposition of fine where death sentence was imposed.
9. From all these cases it appears to me that the word 'liable' means a future possioility or probability happening which may or may not actually occur. In other words the Magistrate has the power to impose the sentence of fine but it is dis-cretionary. If the legislature intended that Imposition of fine was mandatory it would have used words something like this 'and shall be punished with imprisonment to so many years and to fine'. As the word 'liable' has been used in this section I am of the opinion that the learned Additional Sessions Judge has not correctly interpreted the words of the section.
10. This case was started against the opposite party on 20-2-1955. Respondents were convicted and sentenced to nine months' rigorous Imprisonment on 5-7-1955. Their appeal was heard by the learned Additional Sessions Judge and decided on 31-8-1955.
11. The respondents have been on bail allthis time and I have gone through the record tosee as to the propriety and legality of their con,vlction. In my opinion the evidence producedbrings guilt home to them, but taking into consideration the period of time this case has beenhanging over their heads I think that it is a fitcase in which in place of the sentence imposedI would substitute a sentence of imprisonmentfor the period already undergone and a fine ofRs. 50/- each. In default they shall undergo asentence of three months further rigorous imprisonment.