J.P. Desai, J.
1. The petitioner was convicted by the learned Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 437/75 for an offence punishable under Section 277 of the Indian Income-tax Act and sentenced to imprisonment for one day and to pay a fine of Rs. 2,500/- in default to undergo R.I. for three months more. The petitioner filed Criminal Appeal No. 498 of 1980 before this Court and this Court also dismissed the appeal on 20-12-84 confirming the sentence imposed by the learned Chief Metropolitan Magistrate. The petitioner has paid up the fine in the Trial Court. He gave an application to the trial Court on 11-1-1985 stating therein that the sentence of imprisonment for one day should be interpreted as imprisonment till rising of the Court and he wanted to get the question decided by this Court. The learned Chief Metropolitan Magistrate granted time to the petitioner to move this Court. The petitioner has filed this Miscellaneous Criminal Application before this Court for seeking clarification and for giving directions that the imprisonment for one day should be deemed to be imprisonment till rising of the Court. The petitioner has stated in his application before the trial Court that if he is sent to jail, then he will be released from the jail on the next day morning which will be illegal. Same contention is raised in this petition.
2. Section 354(4) of the Code of Criminal Procedure, 1973 lays down that reasons are not to be recorded if the sentence is one of imprisonment till rising of the Court. Proviso to Sub-section (1) of Section 418 of the Code of Criminal Procedure, 1973 provides that where the accused is sentenced to imprisonment till the rising of the Court, it shall not be necessary to prepare or forward a warrant to a jail, and the accused may be confined in such place as the Court may direct. The corresponding provisions namely Sections 367 and 383 respectively in the Old Code did not make any reference to the sentence of imprisonment till rising of the Court. There is no reference whatsoever at any place to imprisonment till rising of the Court in the Old Code. The Old Code thus did not recognise sentence of imprisonment till rising of the Court though of course many Courts used to pass such a sentence.
3. It is clear on reading the above provisions of the New Code that a distinction is made in the New Code between the sentence of imprisonment which may be of one day or more on one hand, and the imprisonment till rising of the Court on the other, and it is also clear that Jail Warrant is not to be prepared or sent to the Jail only when the accused is sentenced to imprisonment till rising of the Court. It also follows that except where the accused is sentenced to imprisonment till rising of the Court and/or fine, and fine is paid up, Jail Warrant is to be prepared and the convict is to be sent to the Jail along with the Warrant. The Jail Warrant will of course be required to be prepared and convict will be sent to Jail if he does not pay up the fine when he is sentenced to pay the fine or sentenced to imprisonment till rising of the Court and fine, and he does not pay up the fine. In view of this clear distinction made in the New Code, the submission of Mr. Shah based on the decision under the Old Code which he cited, could not be pressed into service.
4. I also drew the attention of Mr. Shah for the petitioner to Rule 831 (iv) of the Bombay-Jail Manual, 1955 which reads as under:
Rule 831(iv) : A prisoner sentenced to one day's imprisonment must be released on the same day, but if he is sentenced to imprisonment for 24 hours he must be kept in imprisonment for that period. In such cases the warrant shall state the hour at which he was sentenced.
5. In view of the above Rule it is clear that the petitioner will be released from Jail on the same day on which he is sent to jail and will not be required to stay over-night in the Jail as apprehended by him. In view of this Rule the learned Advocate Mr. A. D. Shah does not press this petition. Hence it is dismissed as not pressed.
6. Before parting with this, I would like to impress upon the subordinate criminal courts that while imposing sentence they should bear in mind the distinction between the two sentences, namely, sentence of one day and the sentence of imprisonment till rising of the Court while considering as to which sentence he proposes to impose and then pass appropriate sentence as the facts of the case may demand.