1. In this case the petitioner Nil Kantha Pal was convicted on his own plea of guilty of a charge which originally was laid under Section 304 but subsequently altered to one under Section 325, I.P.C. The petitioner by his plea of guilty acknowledged criminal responsibility for the death of one Akshoy Hari Pal who was the husband of Srimati Bisakh Pal who is a respondent in these proceedings. The killing of Akshoy Hari Pal was no doubt done in course of a quarrel and in the heat of the moment. The fact remains however that the blow struck by Nil Kantha, although the instrument used was merely a stick about an inch in diameter and two feet in length, was of such gravity that Akshoy Hari's skull was fractured, and he died within some eight hours after he had received this injury. The post-mortem report shows that there was a linear fracture of the skull extending from the front of his head backwards, a length of about seven inches. It is to be seen therefore that the blow struck by the present petitioner must have had considered force behind it.
2. The learned Sessions Judge seems to have taken the view that the widow of the deceased man ought to be compensated for the loss of her husband. He accordingly sentenced the petitioner not to any substantial term of imprisonment but to pay a fine of Rs. 5,000 and in default of payment to undergo rigorous imprisonment for a term of five years. In the ordinary and normal course of events a substantive sentence of five years rigorous imprisonment would not have been inappropriate to the circumstances of the case. However the Sessions Judge chose to give the convicted man an opportunity of evading imprisonment by making compensation to the widow of the man whom he had killed. After the Sessions Judge had passed the sentence it seems to have occurred to him that it was not lawful to impose so large a term of imprisonment in default of payment of fine. He accordingly referred his own order to this Court in order that the matter might be set right. The reference was accepted and the term of imprisonment which was designed to serve as a sanction for the payment of the fine was reduced to of one year and nine months by an order of this Court dated 21st July 1934.
3. The petitioner was originally convicted and sentenced on 27th July 1934. Thereupon he asked for time for the purpose of enabling himself to pay the fine imposed upon him. He first of all obtained one month's respite and on the expiry of that period a further month. Then on 27th August 1934 he surrendered himself and stated that he was unable to pay the fine. Thereupon he was committed to jail to undergo the rigorous imprisonment of the term of one year nine months. On the same day the learned Sessions Judge made the order which is now complained of. After hearing the pleaders in respect of an application made by Srimati Bisakha Pal the learned Judge directed that a warrant should be issued to the Collector of the District under the provisions of Section 386(1)(b), Criminal P.C., authorizing the Collector to realize the amount of the fine, that is to say Rupees 5,000 by execution according to the Civil process against the movable and immovable properties, or both of the defaulter that is to say Nil Kantha Pal.
4. Mr. Chakravarty who has argued this rule on behalf of the petitioner has invited us to take the view that the Sessions Judge was not justified in making any such order having regard to the fact that Nil Kantha Pal had already begun to serve the sentence passed upon him in default of payment. It seems to be clear law that where a sentence of imprisonment is imposed by way of providing a sanction for the payment of a fine if the fine is not paid, and that sentence is served out in its entirety, it is still possible to insist on payment of the fine being made. To put the matter in another way: to serve the sentence of imprisonment is not to be taken as an exoneration or absolution as regards the payment of fine. There is however a proviso in Section 386(1)(b) which enacts that if the offender has undergone the whole of the imprisonment in default, no Court shall issue a warrant unless for special reasons to be recorded in writing it considers it necessary to do so. That proviso does not apply to the present case, because the offender has not undergone the whole of the term of imprisonment to which he was sentenced.
5. When the matter was before this Court a few days ago we granted Mr. Chakravarty an opportunity of ascertaining whether the defaulter was now willing and able to discharge the fine or a substantial part of it. We are now told that the utmost which can be done is that a sum of Rs. 400 or Rs. 500 might be provided within the course of the next fifteen days. In our view that suggestion is not one which ought to be allowed to operate in favour of the petitioner. He was given an opportunity at the time of his conviction, of evading imprisonment. He either refused or neglected to avail himself of that opportunity. He has paid nothing whatever towards the liquidation of the fine imposed by way of compensation to the widow of the man whom he had killed. In the circumstances, we feel that no other course is open than to say that the matter must be allowed to take its course. There is nothing in law to prevent the making of the order which the Sessions Judge made on 27th August last year. The rule must be discharged.