STATE OF KERALA Vs. SREEDHARAN
LAWS(KER)-1967-3-13
HIGH COURT OF KERALA
Decided on March 15,1967

STATE OF KERALA Appellant
VERSUS
SREEDHARAN Respondents

JUDGEMENT

- (1.) THIS is a revision petition filed by the State of Kerala. The respondent in this petition is the accused in C. C. 59/65 on the file of the Sub Magistrate, Kattakad a. He was charged by the Excise Inspector, Kazhakkuttam Range, with offence punishable under S. 8 (1) (a) and (g) of the Prohibition Act. The sub Magistrate convicted him and sentenced him to pay a fine of R s. 50, in default to undergo simple imprisonment for three months. He filed an appeal before the District Magistrate aud l.), Trivandrum, in appeal No. 105/1965. The appeal was dismissed and the conviction and sentence were confirmed. The respondent was again convicted under S. 8 (1) (a)of the above Act in C. C. 756/65 on the file of the Sub Magistrate, Trivandrum , and he was sentenced to undergo simple imprisonment for a period of three months. He filed an appeal against the conviction and sentence in C. A. 199/1965 before the District Magistrate Gud l.), Trivandrum. By his judgment the District Magistrate confirmed the conviction and sentence, but directed that the sentence of imprisonment of three months imposed on the accused will run concurrently with the sentence passed in C. C. 59/1965 by the sub Magistrate, Kattakkada , and was confirmed in c. A. 105/65. The State objects to this direction and contends that it is illegal.
(2.) THE only point for consideration is whether the magistrate was right in directing that the sentence of imprisonment awarded as a substantive punishment will run concurrently with the sentence of imprisonment awarded in default of payment of fine. THE relevant provision relating to this matter is S. 64 of the I. P. C. It runs as follows: "in every case of 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 or 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 the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which be may be liable under a commutation of a sentence. " It is clear from the section that the District Magistrate was not justified in directing that the substantive sentence of imprisonment imposed on the accused in C C. 756/65 and confirmed in C. A. 199/65 should run concurrently with the sentence of imprisonment in default of payment of fine imposed in C. C. 59/65 and confirmed in C. A. 105/65. In State v. Krishna Pillai AIR. 1953 t. C. 233. it was held that such a direction would be illegal. In State of Uttar Pradesh v. Bati AIR. 1950 Allahabad 625 it was held: "it is not competent for the Court to direct that sentences of imprisonment imposed for default in payment of fines should run concurrently. Such order, if passed, is illegal; such direction can only be given in respect of substantive sentences of imprisonment or transportation and not to imprisonments in default of fines. " The result is that the direction of the Magistrate has to be quashed and I do so. The respondent has to undergo the sentence of imprisonment awarded in the latter case i. e. C. C. 756/65 consecutively after undergoing the sentence of imprisonment directed to be suffered in default of payment of the fine imposed upon him in C. C. 59/65. The order of the District Magistrate is modified to this extent and the revision allowed accordingly. Allowed.;


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