- (1.) Heard Mr. CB Tiwari holding brief for Mr. Anurag Pathak, Learned Counsel for the Appellant and the learned AGA for the State and perused the impugned order dated 21.5.2011 passed by the learned Additional Sessions Judge, Court No. 14, Saharanpur in Misc. Case No. 11 of 2010 whereby the learned Additional Sessions Judge committed the Appellant to civil prison for a period of six month on account of the fact that the penalty of Rs. 50,000/- imposed on him under Section 446 of the Code of Criminal Procedure (in short 'the Code') could not be recovered as he had no moveable property and the warrant issued by the Court was returned unexecuted.
(2.) With the consent of the Learned Counsel for the Appellant and the learned AGA, the appeal is being disposed of finally at the stage of admission.
(3.) The Learned Counsel for the Appellant submitted that the learned trial Court has not provided any opportunity of hearing to the Appellant before committing him to the civil prison, therefore, the impugned order dated 21.5.2011 is bad. It was next submitted that if the Appellant had no moveable property and the processes of the Court could not be executed against the moveable property, the trial Court could have issued a warrant to the Collector of the district authorizing him to realize the penalty as arrears of land revenue from the moveable property or immoveable property or both, of the Appellant. The learned trial Court had, this power under Section 421(1)(b) of the Code, which is enumerated herein below: Section 421(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) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, 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 special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357.;