1994 ALLMR ONLINE 1067
Orissa High Court

ARIJIT PASAYAT, J.

Niranjan Nayak vs. Ramesh Kumar Mohapatra and another

Criminal P.C. (1973), S. 374

PASAYAT, J.:-An interesting question relating to ambit and import of the expression a sentence of imprisonment for more than seven years' appearing in sub-sec. (2) of S. 374 of the Code of Criminal Procedure, 1973 (in short, the 'Code') has been raised in this application. According to the petitioner, it includes imprisonment to be undergone in default of payment of fine.

One Ramesh Kumar Mohapatra has been convicted for an offence punishable under S.376 of the Indian Penal Code, 1860 (in short, 'IPC') and sentenced to undergo rigorous imprisonment for seven years, and to pay a fine of Rs. 2,000/-, in default to undergo rigorous imprisonment for six months. An appeal filed by aforesaid Ramesh has been registered as Criminal Appeal No. 129 of 1993 in the court of learned Sessions Judge, Puri. According to the petitioner, the total sentence inclusive of default sentence being in excess of seven years, learned Sessions Judge has no jurisdiction to entertain the appeal and to pass any order therein.

3. Language of sub-section (2) of Section 374 is clear that the sentence of imprisonment passed against a person should be more than seven years, in order that the appeal can be entertained in the prescribed Court. Sentence imposed on a person necessarily relates to substantive sentence of imprisonment, apart from sentence relating to fine or imprisonment in default of payment of fine. Sentence of fine cannot be construed to be a sentence of imprisonment, because it carries with it a default sentence. Sentences which can be passed by various courts are indicated in Sections 28 and 29 of the Code. Section 30 deals with sentence of imprisonment in default of fine. It defines the power of a Magistrate to award imprisonment in default of payment of fine, which is imposeble under IPC or other special or local laws. Sections 63 to 70, IPC deal with 'fine'. Section 65, IPC provides that 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. Section 64, IPC provides that in every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment of fine, or with fine only, in which the offender is sentenced to a fine, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of fine, the offender shall suffer imprisonment for a certain term, which shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. Legislature makes a difference between a sentence of imprisonment and a sentence of fine. Section 53, IPC provides punishments to which offenders are liable under the IPC. They are; (a) Death, (b) Imprisonment for life, (c) imprisonment of two descriptions, namely; (i) rigorous, that is, with hard labour; and (ii) simple; (d) forfeiture of property; and (e) fine. At this juncture it is relevant to refer to the expression 'finding, sentence or order' as appearing in Section 397 of the Code. 'Finding' includes a finding of conviction or an acquittal. 'Order' covers commands or directions that something shall be done, discontinued or suffered, but it does not include 'sentence' and 'finding'. Where an accused is found guilty by a Court, it is required to punish him according to law. 'Sentence' means a judicial determination of punishment. It means a direction by which a punishment is prescribed and meted out to a person who has been convicted of an offence:

4. As indicated above, there can be a separate sentence for fine only, and an offender can be sentenced to a fine only. There may be punishment of imprisonment for life of for a certain term or for punishment of fine. Sub-section (2) of Section 374 refers to a sentence of imprisonment for more than seven years. A sentence of fine is different from the sentence of imprisonment. In case of a sentence of fine, the default condition attached to it is not a sentence in the first place. It is consequence of non-payment. Its operation is contingent only on the fine not being paid. For deciding the appellate forum under Section 374(2) of the Code, the default sentence of imprisonment cannot be added to the substantive sentence of imprisonment. A similar view has been taken in Mojibur Rahman Khan v. Shatraumi , AIR 1934 Oudh 433 (2); Khuda Bakhsh v. Emperor, AIR 1918 Lahore 384 : ( 19 Cri LJ 742); Queen Empress v. Hari Savba, (1896) ILR 20 Bombay 145; Schem v. The Queen Empress, (1889) ILR 16 Cal 799 and Mupparaju Nageswara Rao alias Nagaiah v. State of A.P., 1991 Cri LJ 549 (Andh Pra). The action of the learned Sessions Judge entertaining the appeal is irreversible.