Imprisonment in default of fine cannot be held as imprisonment on conviction.

This Crl.M.C. arises from a letter received from the Chief Judicial Magistrate Kasaragod. The facts are these. One Kunhappan was an accused in four cases before the Judicial First Class Magistrate Court, Kasaragod. He was enlarged on bail in all those cases. But, later, he absconded and therefore, the Magistrate registered separate proceedings against him and the sureties. The bail bonds were forfeited and the Magistrate imposed a penalty of Rs.1000/- each in all the cases against accused, Sina he did not pay the amount, and distrait warrants also proved ineffective, the Magisterial sent him to civil jail to undergo imprisonment for four months each with a direction for concurrence.

2. Later, on a motion by the accused, set off for the period from 13-3-198* to 20-3-1989 when he was reportedly in judicial custody pending trial was granted. The Magistrate sought sanction of the Chief Judicial Magistrate to write off the amount imposed as penalty in the above cases since the accused had undergone sentence o imprisonment. The Chief Judicial Magistrate has sought direction of this Court on the request of the Magistrate, to write off the penalty.

3. There are patent illegalities committed by the Magistrate.

4. S.441 Crl.P.C. provides thus:

"(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officers or Court, as the case may be, thinks sufficient shall be executed b) such person, and when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be".

(Sub-clauses (2), (3) and (4) omitted)

On execution of the bond, the person for whose appearance it was executed shall be released and if he is in jail, an order for release shall be ordered to the officers in charge of the jail (S.442 CrLP.C.)

5. Under S.446 Crl.P.C. where a bond is for appearance before a court and if it is proved to the satisfaction of that court that the bond had been forfeited, the court shall record the grounds of such proof and call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid. If sufficient cause is not shown and the penalty is not paid, the court under subsection (2) of S.446, may proceed to recover the same as if such penalty were a fine imposed under the Code. In proviso to sub-section (2) of S.446, it is stated that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable by order of the court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months (only relevant provisions are noticed).

6. It is clear that a person bound as surety alone is liable in proceedings for recovery of the penalty to imprisonment in civil jail. The proviso in terms does not apply to the accused as in the case of a surety. In my view, the Magistrate acted illegally in sending the accused to civil jail for his failure to pay the penalty.

7. S.421 Crl.P.C. reads as follows:-

"421. Warrant for levy of Ene:--(1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-

(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;

(b) issuea warrant to the Collector of the district, authorising him to realise the amount as arrears, of land revenue from the movable or immovable property, or both, of the defaulter, Provided to at, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for specia