- (1.) THE petitioner in this case has been convicted under sec. 408 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 1000/-, in default to suffer a further period of imprisonment for six months. He has now surrendered and is in jail, but he has not paid the fine. The question that has arisen before us is whether his application for a certificate under Art. 134 (1) (c) of the Constitution can be brought to hearing, even if he has not paid the fine of Rs. 1000 / -.
(2.) THE case really hinges upon a true construction of Rule 59 of Chapter VI of the Appellate Side Rules. The Rule runs as follows :- "it shall be a condition precedent to the entertainment of an application under Article 134 (1) (c) of the Constitution that the petitioner must submit to the order sought to be appealed from, by surrendering himself in the. case of a sentence of imprisonment, and I or by paying the fine in the case of a sentence of fine, before such an application is heard. In the case before us, the petitioner has been sentenced to a substantive term of imprisonment and he has also been sentenced to pay a fine and a period of imprisonment in default has also been awarded against him. Mr. Roy appearing for the State has contended before us that the petitioner must fulfill two conditions before his application for a certificate under Art. 134 (1) (c) of the Constitution can be heard: (a) he must surrender himself and (b) that he must also pay the fine. Reliance has been placed by Mr. Roy upon the provisions of sec. 398 (2) of the Code of Criminal Procedure for the proposition that the imprisonment which the petitioner is now suffering cannot be said to be an imprisonment in default of fine and it is only the substantive imprisonment which the petitioner is suffering. It is true that sub-sec. (2) of sec. 398 postpones the period of imprisonment in default till the substantive sentence of imprisonment has been served out and, accordingly, we cannot hold that the imprisonment which the petitioner is now suffering is the substantive sentence of imprisonment as well as the imprisonment in default. The question, however, still remains whether the petitioner can be required to fulfill both the conditions of Rule 59 in the present, case. Reading the Rule as it stands, it seems to us that the payment of fine is required only in a case where the petitioner is sentenced to fine only and it does not apply to a case where the petitioner has been sentenced to a term of imprisonment in default of payment of fine. The second part of the Rule which requires the payment of the fine applies to a simple case of a sentence of fine and not to a case where a period of imprisonment is ordered in default of payment of fine. We need not now say anything on the question whether the second part of the Rule will apply to a case where the sentence of fine is combined with a substantive sentence of imprisonment. " In view of the fact that in the present case the petitioner has been sentenced to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for six months, the second part of the Rule does not apply. Let this application be placed on the list for hearing in the usual course, even if the petitioner has failed to pay the fine of Rs. 10001 -.;