RAMASWAMY IYER AGNELLUS LAWRENCE GOPALAN Vs. UNION OF INDIA
LAWS(BOM)-1962-1-5
HIGH COURT OF BOMBAY
Decided on January 24,1962

RAMASWAMY IYER AGNELLUS LAWRENCE GOPALAN Appellant
VERSUS
UNION OF INDIA Respondents


Referred Judgements :-

COLLECTOR OF BROACH V. OCHHAVLAL BHIKALAL [REFERRED TO]
MIR AHMED V. COLLECTOR,PESHAWAR DISTRICT [REFERRED TO]



Cited Judgements :-

KESHAV DATTA MISRA VS. STATE [LAWS(ALL)-1965-2-12] [REFERRED TO]
VISHWAS BHOSALE VS. SHAIKH ASHRAF ABDUL KADAR [LAWS(BOM)-1997-2-151] [REFERRED TO. 4.]
BAKSHISH SINGH DHALIWAL VS. UNION OF INDIA [LAWS(DLH)-2007-3-135] [REFERRED TO]
STATE AGRO INDUSTRIES DEVELOPMENT CORP J&K VS. STATE [LAWS(J&K)-1999-5-9] [REFERRED TO]


JUDGEMENT

- (1.)FACTS material for the purposes of this appeal in brief are: The petitioner Mr. Gopalan is an Ex-Army Officer. On 14th January 1955 he was convicted by a Court Martial under Section 409 Indian Penal Code and was sentenced to suffer three years rigorous imprisonment and to pay a fine of Rs. 40,000/ -. The Military Authorities sent a copy of the sentence to the Judicial Magistrate, First Class, Nasik, for the purpose of recovering the amount of fine. The Magistrate in his turn, in execution of the order of sentence, attached the following properties on 6th November 1955: 1. Three Life Insurance Policies;
(2.)SAVING Bank Account of Rs. 10,000/- in the Punjab National Bank, Nasik Branch; 3 A Radio; and 4. A motor car bearing registration No. BML 2403; and since the date of the attachment the property has been taken in the custody of the Court. The car has subsequently been sold for Rs. 4,675/- and the amount is in Court. Petitioner's wife Mrs. C. V. Gopalan filed before the Magistrate an objection to the attachment under Rule 6 of the Rules framed under Section 386 of the Criminal Procedure Code. She claimed that she was the owner of the Life Insurance Polices, the Savings Bank Account and the Radio. The daughter in her objection claimed the motor car as belonging to her. After holding a summary inquiry the Magistrate dismissed the claims made by Mrs. Gopalan as well as by the daughter of Mr. Gopalan by his order dated the 22nd of October 1956. Both Mrs. Gopalan as well as the daughter of Mr. Gopalan filed different suits challenging the order made by the Magistrate in the objection cases, in the Court of the Joint Civil Judge, Senior Division, Nasik. The suit instituted by Mrs. Gopalan was Civil Suit No. 45 of 1957 and that instituted by the daughter was Civil Suit No. 586 of 1957. Both these Civil Suits were consolidated for the trial and were decided by the learned Judge on the 23rd of January 1959. The decision in short was that the three Life Insurance Policies belonged to Mr. Gopalan, the Bank Account and the Radio belonged to Mrs. Gopalan, and the motor car belonged to Miss Gopalan. Against these two decisions of the Civil Judge, the Government has preferred two appeals in this Court. They are First Appeal No. 483 of 1960 and First Appeal No. 322 of 1959. Mrs. Gopalan also has filed cross objections claiming the Life Insurance Policies as her own property, and both these appeals are still pending. During the pendency of these two appeals Mr. Gopalan filed an application on 16th of February 1961 that for reasons stated by him in this application both these appeals have become infructuous and therefore they may be dismissed with costs. He similarly prayed that the cross-objections of Mrs. Gopalan in which she claimed the three Insurance Policies as belonging to her should also be dismissed, and he further prayed that the three Life Insurance Policies be returned to him. 2. The ground on which this application is founded is that under Section 70 of the Indian Penal Code the amount of fine has to be levied within a period of six years from the date of sentence. The sentence of fine was imposed on him on 14th January 1955. On 14th of January 1961 the said period of six years had elapsed. Till that date the amount of fine had not been realised by the Magistrate attaching the property. After 14th January 1961, as an effect of the provisions of Section 70 of the Indian Penal Code, the Magistrate had no jurisdiction to proceed to realise the amount of fine. As it is no more possible for the Magistrate to realise the amount of fine, the appeals have become infructuous. In short, his contention was the word 'levy' occurring in Section 70 of the Indian Penal Code means 'realise'. This application was heard on 20th February 1961 and was dismissed on the same day, the learned Judge holding that there is no reason to construe the word 'levy' to mean 'realise'. Against this order of the learned Judge this Letters Patent Appeal has been filed.
(3.)MR. Gopalan has argued his own appeal, and if we may say so, with considerable ability. It is his contention that the word 'levy' used in Section 70 of the Indian Penal Code means 'realize'. Mere effecting an attachment of the property within a period of six years is not sufficient, but the executing Court must complete the entire process of attachment and sale within a period of six years, If the entire process is not completed within a period of six years, then the Magistrate ceases to have jurisdiction to take any further steps in that matter. In support of his contention he also referred us to the expression 'levy' used in Sections 68 and 69 of the Indian Penal Code. In support of his argument he also referred us to the decisions in Mir Ahmad v. Collector, Peshawar District, AIR 1943 Pesh 56 and Collector of Broach v. Ochhavlal Bhikalal, 43 Bom LR 122: (AIR 1941 Bom 158 ).


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