Judgment

BEG, J. :- The appellant was convicted under Section 406 India Penal Code and sentenced to six months rigorous imprisonment and a fine of Rs. 500/-, and, in default of payment of fine, to three months further rigorous imprisonment, by the Munsif Magistrate of Karoli, District Bharatpur, Rajasthan. On an appeal by him to the Court of Sessions, his conviction was set aside, but the Trial court was directed to proceed with the case afresh for the stage at which the appellant should have been properly examined under Section 342 Criminal Procedure Code. The appellant was then given a full opportunity, under Section 342, Criminal Procedure Code, to explain the facts and circumstances appearing against him in the case. Thereafter, he also produced five witnesses in defence. He was, however, convicted again and sentenced to two years rigorous imprisonment and to pay fine of Rs. 2,000/-, and, in default, to undergo one year s further rigorous imprisonment. The appellant again appealed to Court of Sessions which dismissed his appeal. The appellant then filed a Revision application which was dismissed summarily by the High Court of Rajasthan. Soon after that, the appellant made another attempt to invoke the inherent jurisdiction of the High Court, by applying under S. 561A Criminal Procedure Code, to get atleast an illegality in the sentence corrected, but this also failed. A prayer for a certificate of fitness of the case to appeal to this Court was also rejected by the High Court. The appellant then applied under Art. 136 of the Constitution to this Court. That application was admitted only on the question of the period of imprisonment awarded in default of payment of fine. It is this question only which has been argued before us.

2. Section 33 of the Criminal Procedure Code runs as follows :

"33 (1) The Court of any Magistrate may award such terms of imprisonment in default of payment of fixed as is authorised by law in case of such default :

Provided that -

(a) the term is not in excess of the Magistrate s powers under this Code :

(b) in any case decided by a Magistrate where imprisonment has been awarded as part of the substantive sentence, the period of imprisonment awarded in default of payment of the fine shall not exceed one-fourth of the period of imprisonment which such Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine.

(2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under S. 32".

3. The Munsif Magistrate who convicted the appellant had the powers of a Magistrate 1st Class which are restricted by Section 32, Sub-S. (I) (a) to imposing imprisonment for a term not exceeding two years and fines not exceeding Rs. 2,000/-. Reading Ss. 32 and 33 together, it was clear that, in the case before us, the Munsif Magistrate could not award more than six months imprisonment in default of payment of fine.

4. In answer to the appellant s contention, based on Section 33 of the Criminal Procedure Code, learned Counsel for the State of Rajasthan placed Section 65 Indian Penal Code before us. This Section reads as follows :

"65. The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence if the offence be punishable with imprisonment as well as fine."

5. It will be seen that even where Section 65 Indian Penal Code is applied by a Court the term of imprisonment in default of payment of fine cannot exceed one fourth of the term of imprisonment which is the maximum period which can be awarded for an offence of which an accused is convicted. An offence under S. 406 Indian Penal Code is punishable with imprisonment which can extend to only three year s rigorous imprisonment and a fine. Thus, even if Section 65 Indian Penal Cod