CHHANGANI, J. - (1.) THIS reference by the Additional District Magistrate, Sawai Madhopur, raises an important question, namely, whether the sentence of imprisonment till the raising of Court is in accordance with law.
(2.) ONE Laxminarain Brahmin was challenged by the police in the Court of Munsif-Magistrate Sawai Madhopur of an offence u/sec. 457, Indian Penal Code. The court found the accused guilty under sec. 451, Indian Penal Code and sentenced him to imprisonment till the rising of the court. The accused was also awarded a sentence of fine of Rs. 150. The Prosecuting Inspector submitted a revision in the court of Additional District Magistrate for the enhancement of the sentence. It was contended that under sec. 451, Indian Penal Code, a sentence of imprisonment is mandatory and that a sentence of imprisonment till the rising of the court is no imprisonment in view of the provisions of secs. 383 and 385, Indian Penal Code. The Additional District Magistrate noticed cases expressing divergent views of the High Courts and finding an absence of any decision of this Court, has made the present reference soliciting a ruling on the point. I have heard Mr. R. S. Purohit for the accused opposite party Laxminarain and the Deputy Government Advocate. They brought to my notice a few cases bearing on the point. In support of the view that an imprisonment till the rising of court is not a legal sentence three cases may be referred to, namely, Kunhi Bova vs. Emperor (l ). In re Thammana Ramalingayya (2) and Boddepalli Lakshminarayana vs. Suvyari Sanyasi Appa Rao (3 ). The contrary view finds support in Boghel Singh vs. Emperor (4), In re Muthu Nadar (5) and Mullukchand Sheikh vs. The King (6 ). I will first notice the first category of the cases. In Kunhi Bava vs. Emperor (l) Jacksen, J. observed as follows "when the statute lays down that for a certain offence, as for that under S. 471, I. P. C. or under S. 193, the punishment shall be imprisonment it means that the offender shall go to jail and imprisonment till the rising of the Court is a clear evasion of that intention. " The learned Judge further observed, "possibly in rare cases when the offence is obviously technical, a Court may be justified in taking the extreme step of evading the statute which it is appointed to administer: but on the learned Judge's own showing, this was not such a case. " Evidently, the learned Judge assumes that punishment by way of imprisonment can only be served in a jail or a prison. With all respects, I do not find justification for the assumption made in the above case. I may in this connection refer to the observations of Lesch, C. J. in re Muthu Nadar (5) which is a Division Bench case and which over-rules the case Kunhi Bava vs. Emperor (1): - "neither the Penal Code nor the Code of Criminal Procedure directs where a sentence of imprisonment shall be served. " In the absence of any specific direction to that effect it cannot be accepted that in order to suffer punishment by imprisonment one must necessarily be detained in jail. The learned Chief Justice further quoted the observations of English Judges on the question as to what amounts to imprisonment. He extracted the quotation of Coleridge, J. from the dictum of Coke to the effect: - "every restraint of the liberty of a tree man will be an imprisonment although he be not within thewalls of any common prison. Williams, J. quoted Blecktone's statement to the effect: - "every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public street. On the basis of those quotations the learned Chief Justice did not feel persuaded to hold that the imprisonment must always be in the jail. In support of the view taken by Lanch C. , J. I may also rely upon the definition of "imprisonment" in Wharton's Law Lexicon reading as follows - Imprisonment means - "the restraint of person's liberty under the custody of another. It extends in law to confinement not only in a gaol, but in a house, or stocks, or to holding a man in the street, etc: for in all these cases the person so restrained is said to be a prisoner, so long as he has not his liberty feely to go about his business as at other times. " In this view of the connotation of imprisonment it cannot be accepted that the imprisonment till the rising of the court is an evasion of the statute. It may also be incidentally pointed out that there is obvious contradiction in the observations of Jackson, J. The learned Judge has expressed the view that when the offence is obviously technical a court may be justified in taking the extreme view of evading the statute which it is appointed to administer. If the award of a sentence of imprisonment till the rising of the court is an evasion of the statute, I cannot see how a Magistrate can be justified in passing such a sentence. Obviously, a Magistrate cannot pass a sentence disregarding the statute because such a sentence shall be illegal. It appears to me that the learned Judge really wanted to lay down that when a person is convicted of certain offence referred to by him, he shall be sentenced to imprisonment in jail but where the offence is of a very technical nature, the Court would be justified in passing a nominal sentence of imprisonment. For these reasons, I feel unable to agree with the dictum laid down by Jackson, J. in Kunhi Bava vs. Emperor (1 ). In re Thammana Ramalingayya (2) Herwill, J. sitting singly observed - "it is objectionable to sentence persons to imprisonment till the rising of the Court; because it is not a form of imprisonment recognised by law, and it is used to circumvent the provisions of law that require a sentence of imprisonment in jail for a particular term. " This decision also appears to be based on an assumption made in the earlier Madras case (1) and for the reasons given while discussing earlier the Madras case I find it difficult to agree with the view propounded in this case. It may be significantly pointed out at this stage that both these cases came up for consideration before a Division Bench of the same High Court in re Muthu Nadar (5) and the learned Judges over-ruled both these cases and gave more convincing reasons for expressing a contrary opinion. I need only say that I entirely agree with reasoning adopted in the latter Madras case. The last case to be referred is the case of Andhra Pradesh reported in Boddepalli Lakshminarayana vs. Suvvari Sanyasi Appa Rao (3 ). Regarding the legality of a sentence of imprisonment till the rising of the court, the learned Judges observed that "such a sentence is unknown to law, for a sentence of imprisonment involves the effecting of it outside the custody of the Court. " It was observed in this connection that "on the date on which the case comes on for hearing, if the accused is taken into custody by the Court, he would only be regarded as being in the custody of the Court and that would not amount to the suffering of imprisonment. It is true that when the accused is brought into court in connection with the hearing of a case he is brought into the custody of the court but it cannot be accepted that the custody in court can never be treated as the suffering of imprisonment. It may be pointed out in this connection that if an appellant undergoing a sentence of imprisonment is brought into court in connection with the hearing of the appeal, the appellant will certainly remain in the custody of the court but it cannot be said that he shall cease to be under-going imprisonment while in the custody of the court. I cannot see why a person directed to be kept in the custody of the court under a sentence of imprisonment till the rising of the court be not treated to undergo the suffering of the imprisonment particularly when there is no statute prescribing that the imprisonment must necessarily be served only in a jail. The learned Judges in support of their conclusion referred to the provisions of sections 383 and 385 laying down certain requirements for execution of a sentence of imprisonment when a person is required to be sent to jail. Sec. 383, Criminal P. C. reads as follows: - 383. Where the accused is sentenced to imprisonment for life or imprisonment in cases other than those provided for by Sec. 381 the Court passing the sentence shall forthwith forward a warrant to the jail in which he is, or is to be, confined, and, unless the accused is already confined in such jail, shall forward him to such jail, with the warrant. " On a proper interpretation of the language of sec. 383 it cannot be accepted that the sentence of imprisonment must always be undergone in jail. In connection with the interpretation of sec. 383, the following observations were made in Muthu Nadar's case: - "the requirement of the section that the Court passing the sentence shall forthwith forward a warrant to the jail in which the accused person is to be confined merely contemplates the case where the Court intends the sentence of imprisonment to be undergone in jail. It leaves entirely untouched the case where the Court passing the sentence directs that the imprisonment shall take place within the precincts, of the Court. " Respectfully agreeing with the above observations, I may further add that the substantive law contains no provision to the effect that the imprisonment should be necessarily undergone in jail. Further, under the substantive law, an imprisonment of a few minutes can be validly passed. Obviously, for such a sentence it is neither desirable nor practicable to get the sentence served out in a jail. In these circumstances, I cannot see how a direction by the court that the prisoner may be kept in the custody of the court till the rising of the court to serve out a sentence of imprisonment be treated as illegal. In my opinion, provisions relating to procedure should not be interpreted to constitute limitation on the substantive law. The language of sec. 385 Criminal P. C. also does not justify the conclusion arrived at by the learned Judge in Boddepalli Lakshminarayana vs. Suvvari Sunyasi Appa Rao and others (3 ). That section requires as follows: - "when the prisoner is to be confined in a jail, the warrant shall be lodged with the jailor. " The earlier phraseology, namely, that when the prisoner is to be confined in jail leaves untouched a case of the prisoner who is not to be confined in jail but who may be required to remain in the custody of the Court till the rising of the Court. After carefully examining the case of the Andhra Pradesh High Court, namely, Boddepalli Lakshminarayana vs. Suvvari Sanyasi Appa Rao and others (3 ). I feel unable to subscribe to the view taken in the case and feel inclined to prefer the view adopted in Muthu Nadar's case (5 ). Now, coming to the other category of cases, I need only observe that in Muthu Nadar's case (5), the learned Judges after noticing all the relevant provisions of law, came to the conclusion that a sentence of imprisonment till the rising of court is legal. I entirely agree with the reasoning and conclusion arrived at in that case. I need not notice in detail the other cases. On a consideration of the scheme of the law and the review of the cases, I have no hesitation in coming to the conclusion that it is perfectly open to courts to pass a sentence of imprisonment till the rising of the court. The reference is answered accordingly. . ;