Imprisonment cannot be imposed as a mode of recovery for a forfeited surety bond under Sections 421, 424, and 446 of the Code of Criminal Procedure (new).

1. The question of law involved in this petition is, whether a surety, whose bond has been forfeited and who is unable to pay the penalty, can be sentenced to imprisonment?

2. The brief facts are that Gambhir Singh was arrested for being in possession of five kilograms of illicit opium. He was allowed to be released on bail in the sum of Rs. 10,000.00 with two like sureties, one of them being Jagtar Singh. Gambhir Singh jumped bail. The surety bond executed by Jagtar Singh was also forfeited and he was directed to pay the full penalty of Rs. 10,000.00 , but Jagtar Singh stated that he did not own any moveable or immoveable property to discharge the liability. In consequence, the Magistrate ordered that the ends of justice would be met, if Jagtar Singh was sentenced to imprisonment for three months R. I. under Section 421 read with Ss. 424 and 446 of the Code of Criminal Procedure. The appeal filed by Jagtar Singh was dismissed by the learned Sessions Judge, Patiala. Hence, he has preferred the present revision petition.

3. In order to show that the impugned order is not sustainable, learned counsel for Jagtar Singh pointed out that formerly, sub-section (4) of Section 514 of the Code of Criminal Procedure (old) provided that if the penalty was not paid and could not be recovered by attachment and sale of the property of the person liable, the Court, could order imprisonment of the said person in civil jail for a term which could extend to six months. Reference was then made to the following observation of the Law Commission in its Forty-first report: -

"We feel that imprisonment in civil jail in these circumstances is out of accord with modern thinking and propose to omit sub-section (4)."

Accordingly in the corresponding Section 446 of the Code of Criminal Procedure (new) no provision was made for the imprisonment of the person liable to pay the penalty.

4 The other aspect of the matter now deserving consideration is that sub-section (2) of Section 446 of the Code (new) lays down that if sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code. Learned counsel for Jagtar Singh rightly urged that this provision relates to the mode of recovery of penalty and that in Section 446 the omission to imprison the person concerned in default of payment of fine is significantly conspicuous. It had to be so because while accepting the above said report of Law Commission, the Legislature deleted the former provision relating to imprisonment of the person who failed to pay the penalty. It is against this background that the provisions of Sections 421 and 424 of the Code (new) dealing with the recovery of fine have to be construed. Relevant part of Sec. 421 reads :-

(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 moveable property belonging to the offender;

(b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable and immovable property, or both, of the defaulter; Provided that ** ** ** **

(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison o