P L D 1962 Dacca 238 (PLP)

This is a petition under section 561‑A of the Code of Criminal Procedure praying that the order dated 30th August 1960 passed by Mr. A. S. Chowdhury, District Magistrate, Comiila in Miscel laneous Petition No. 74 of IS60 rejecting the prayer for postponing the recovery of fine and directing to issue distress warrant for realisation of fine may be set aside and further that the proceeding for realisation of fine tray be quashed for reasons stated in the petition.

2. Order dated 30th August 1960 is an order of the District Magistrate, Tippera and is in these terms: "Seen the petition of the convict and perused the High Court judgment. The prayer for postponing the recovery of fine is rejected. Issue D/W for realisation of the fine, if not already done, S. A. Chowdhury, D. M. (C)." The background of this order as stated in the petition is as follows: ‑

3. The petitioner was convicted under section 409 of the Pakistan Penal Code by the Special Judge, Chittagong and sent enced to rigorous imprisonment for one‑and‑a‑half years and also to pay a fine of Rs. 4,600, in default to suffer rigorous imprison ment for a further period of nine months.

4. The petitioner preferred Criminal Appeal No. 581 of 1959 to the High Court against the conviction and sentence and the same was dismissed by the High Court on 13th April 1960.

5. There was a petition to the Supreme Court against the dismissal, which was summarily dismissed.

6. The operative portion of the High Court's judgment is as under: "The appeal, therefore, is dismissed, and the conviction and sentence passed on the appellant are upheld the appellant is on bail. He must now surrender to his bail bond and serve out the sentence passed on him and must now pay the fine required of him, in default to undergo the term of imprisonment imposed on him in lieu thereof."

7. The petitioner states that a sentencing Court, namely, the Special Judge did not issue warrant to the Collector authoris ing him to realise the fine imposed ; that on receipt of the above High Court's judgment and order dated 13th April 1960, the Special Judge wrote to the District Magistrate in the following terns on 16th April 1960: ‑ "Copy forwarded to the District Magistrate, Tippera, for information and necessary action. He is requested to secure the surrender of the accused and report the date of surrender to High Court direct."

8. Mr. A. Samad, Deputy Collector on 18‑4‑60, accordingly, started a miscellaneous case and passed the following order: ‑ "Issue notice on the surety Mukhtar to surrender the accused on or before 25‑4‑

60. Also issue W/A to the addressee detailed in Order‑sheet. Take steps for realisation of fines".

9. The petitioner on getting information surrendered In Court on 9‑5‑60 and the District Magistrate thereupon by his order dated 16‑5‑60 recalled the processes. But again on 18‑5‑60 passed the following order: ‑ "Last time of the order dated 18‑4‑60 is recalled. Issue D/W at once for realisation of the fine of Rs.4,600 of which Rs. 4,512‑1‑0 to go to Postal account, and balance to Provincial Revenue if realised. Also Inform the Special Judge, Chittagong Division with a request to let this office know if any steps for realisation of fine have been taken to realise the fine at his end. To 30‑5‑60."

10. The petitioner on coming to know of the aforesaid order of the District Magistrate filed an application before him stating that he had been serving the substantive period of sentence and as such the recovery of fine was not due at that stage, that the said process was not issued by the sentencing Court nor the District Magistrate was authorised to execute the process and as such the whole proceedings for realisation of fine was without jurisdiction and also in contravention of the provisions of section 386 (1) (b) of the Criminal Procedure Code and that the said processes for execution was also not legal inasmuch as it was not in obser vance of the Civil Process as contemplated by section 386 of the Criminal Procedure Code.

11. The District Magistrate by his order dated 13th June 1960 passed an order staying all further proceedings and started a miscellaneous case, namely, Miscellaneous Petition No. 74 of 1960.

12. The petitioner on 21‑6‑60 filed another application before the learned Special Judge stating inter alia that he was not in a position to pay the fine imposed on him and as such he prayed for serving out the sentence of imprisonment in default of payment of fine.

13. On the said day, Ambia Khatun complainant of the original case made a petition to the Special Judge for taking steps to realise the fine imposed on the petitioner.

14. The learned Special Judge heard the petition. On hearing the petition on 1‑7‑60 he passed the following orders: "The petition is put up to‑day. Heard the learned P. P. and lawyer for the petitioner. None appears for Ambia Khatun. No Vakalatnama put in. The accused convict filed the petition with a prayer that he be ordered to undergo the period of imprisonment in lieu of fines imposed on him by the Court of the Special Judge and also for placing him in Class "B" prisoner. It appears that accused‑convict was sentenced to suffer rigorous imprisonment for one‑and‑a‑half years and to pay a fine, of Rs. 4,600 in default to suffer rigorous imprisonment for 9 months more. The accused has been undergoing the substantive part of sentence. As per provision of section 64, Pakistan Penal Code, the sentence of imprisonment in default of payment of fine has to be in excess of and not concurrent with the other sentence of imprisonment. In the present case the sentence of 11 years and 9 months in default of payment of fine, should be consecutive and not concurrent. In this view of the case, I find that the petition by the convict is a premature one as there is no question of realisation of fines at this stage and accordingly it is rejected. The accused -convict, if so advised may renew his prayer at the expiry of the imprisonment of a years, which he is now undergoing. His prayer for classification is rejected." Thereafter the Special Judge by his Memo. No. 314 dated 2C‑4‑60 wrote to tie District Magistrate, Comilla, as follows: "To The District Magistrate, Comilla. The appeal appears to have been dismissed by the High Court. Action may please be taken according to the direction con tained as per judgment of the High Court. Sd. A. Ahmad, Special Judge, Chittagong, Division.

15. Petitioner's son Gyasuddin Chowdhury on 24‑8‑60 filed an application before the District Magistrate on behalf of the petitioner stating that the learned Special Judge had stayed realisa tion of fine vide his order dated 1‑7‑60 and enclosed the certified copy of the said order.

16. It is stated that the District Magistrate on 24‑8‑60 with out at all referring to the said application and order of the learned Special Judge made the following order: "Seen the judgment of the High Court and perused the direction of the Special Judge contained under his Memo. No. 314 dated 20‑8‑

60. The stay order of 13‑ti‑60 is vacated. Take steps for realisation of fines". Sd. A. S. Chowdhury, Comilla."

17. There was another petition on 30‑1‑60 before the District Magistrate to stay realisation of fine and to drop the proceedings enclosing the certified copy of the order dated 1‑7‑

60. The con tents of the petition were that processes had been Issued for realisation of fine before expiry of the term of substantive sentence in the absence of any processes issued by the sentencing Court and that the District Magistrate was not authorised to realise the same; that a petition was moved before the Special Judge for rectification of the points and the said Court passed an order on 1‑7‑60 postponing realisation as it was premature and also in contravention of section 386 (1) (b) of the Code of Criminal Procedure.

18. On 30‑8‑60 the District Magistrate rejected the aforesaid application and issued distress warrant for realisation of the aforesaid fine, it is alleged, without applying his mind and ignoring the order of the Special Judge dated 1‑7‑60.

19. It is stated that the order of the High Court dated 13‑4‑60 did not authorise the District Magistrate, Comilla to realise the aforesaid fine, but on the other hand, the aforesaid direction of the High Court was contained in Memo. No. 3032/Cr., dated 13‑4‑60 of the Third Assistant Registrar to the High Court for only securing surrender of the petitioner. It is also stated that the trial Court did not issue any warrant to him under section 386 (1) (b) of the Code of Criminal Procedure and as such the entire proceedings for realisation of fine was void and without jurisdic tion and abuse of the process.

20. Those are the facts behind this petition. Khan Bahadur Md. Ismail, learned Advocate, appearing for the petitioner has urged that the District Magistrate acted without authority Insamuch as the sentencing Court did not authorise the execution of the sentence of fine.

21. It appears that the letter of the Special Judge dated 20‑8‑60 is after the order dated 1‑7‑60 and the terms of the letter of 20‑8‑60 by clear implication superseded the order dated 1‑7‑60.

22. The order of 20‑8‑60 having' requested action according to the direction contained as per judgment of High Court, it could not be said that still the order of 1‑7‑60 stood. The order slated 1‑7‑60 was passed on the petition of the complainant and it was not communicated to the District Magistrate by the Special Judge himself. It was not at any rate meant for action by the District Magistrate.

23. Further Mr. Birendra Nath Chowdhury appearing for the State has frankly conceded that the Special Judge was not quite right, in his order dated 1-7‑60 to the effect that the realisation of fine should be halted.

24. Under those circumstances the contention that the District Magistrate had no authority to act, has no substance.

25. Khan Bahadur Md. Ismail next pressed ground No. 1 of the petition which is as follows: ‑ "For that the proceedings are void, without jurisdiction and an abuse of process of the Court inasmuch as neither the trial Court nor the Hon'ble High Court issued any warrant to the District Magistrate, Comilla allowing him under section 386 (1) (b) of the Code of Criminal Procedure for realisation of the fine in question. In the face of the letter of request of the Special Judge dated 20th August 1960 which is sufficient warrant to the District Magistrate, this ground has no substance.

26. Mr. Ismail has next pressed ground No. 3 of the petition which is as follows: "For that in any view of the matter, the learned District Magistrate even as a Collector cannot realise the aforesaid fine without following the procedure a as laid down in section 386 (3) of the Code of Criminal Procedure, which provides for actions to be taken through a Civil Court." Section 386 of the Code of Criminal Procedure Is as under: "(1) Whenever 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 authorising him to realise the amount by execution according to civil process against the movable or immovable property, or both, of defaulter Provided that, if the sentence directs that is default of the fine the offender shall be imprisoned, and If such offender has undergone the whole of such impris7nment in default, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers ii necessary to do so. (2) The Provincial Government may make rules regulating the manner in which warrants under subsection (1), clause (a), are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under subsection (1), clause (b), such warrant shall be deemed to be a decree, and the Collector to be decree‑holder, within the meaning of the Code of Civil Procedure, 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purpose of the said Code, be deemed to be Court which passed the decree, and all the provisions of that Code as to execution of decrees shall apply accordingly Provided that no such warrant shall be executed by the arrest or detention in prison of the offender." 28. (sic) It has been contended that the District Magistrate was not competent to issue distress warrant, the reasoning being that In terms of section 386 (1) (b) of the Code the sentencing Court can only issue a warrant to the Collector authorising him to realise the amount by execution according to Civil Processes. Mr. Ismail has further argued that in terms of subsection (3) of section 386 of the Code the Collector only being in the position of decree‑holder under the Civil Procedure Code, all the provisions of the Civil Procedure Code regarding execution of decrees shall apply.

29. The provisions as above seem clearly to support the stand taken by Mr. Ismail and Mr. Birendra Nath Chowdhury appearing for the State has rightly conceded that the issue of distress warrant was not justifiable under the law. But Mr. Chowdhury has contended that thi3 Court will not interfere under section 561‑A of the Criminal Procedure Code in giving relief to the petitioner. His argument ii that section 561‑A of the Code warrants interfer ence only in case of order of Court and that the Collector having accused the distress warrant not as Court but in purely administrative capacity, the High Court cannot interfere. The provisions of section 561‑A of the Criminal Procedure Code are as follows: "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". Mr. Chowdhury has cited the decision in Kala Chandra Datta v. Emperor (A I R 1946 Pat. 19l) of which the facts and decision are as under: ‑ "Section 561‑A comes into operation only when the impugned order is passed by `Court'. If the order moved against in the High Court is one passed by the Executive Officer of the Crown in his administrative capacity, section 561‑A is not attracted. Where a Sub‑divisional Magistrate getting information that there is a dispute regarding right to possession of a going concern i.e., an electric supply company, in which the public is vitally interested, requisitions that concern under Rule 75‑A (l) of Defence of India Rules and subsequently hands over possession to one of the disputants, the Order passed by him cannot be said to be an order passed in a judicial proceeding even though he has taken this action during the pendency of a criminal proceeding instituted by one of the disputants against the other but not in the proceeding itself. Hence the High Court cannot interfere under section 561‑A, Criminal Procedure Code. It is true that even the Executive Officers of the Crown cannot interfere with the life or liberty of His Majesty's subjects except in strict accordance with the provisions of the law for the time being in force. If a person has been wronged by any orders of the executive authorities, which are in excess of the powers conferred upon them he has his remedy at law but that remedy has got to be sought in accordance with law, that is to say, through the ordinary Courts. Having failed to obtain such a remedy in the ordinary course of the law, he cannot come to the High Court and ask 1t to exercise its inherent powers."

30. Mr. Chowdhury has contended that the appropriate course in a case like the present was to go up to the Commissioner and Board of Revenue and the High Court is not the proper forum. According to Mr. Chowdhury the order of the Collector is as stated before, a purely executive order of an officer of the Crown.

31. Mr. Rab appearing on behalf of Mr. Ismail has depended on the terms of section 561‑A of the Code of Criminal Procedure Itself. He has stressed the words: "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code".

32. The order under this Code according to him in a case like the present is that laid down in section 386 (1) (b) of the Code of Criminal Procedure namely, realisation according to Civil Process and not by the process of distress warrant.

33. Mr. Rab seems to be right in his contention. There could be no jurisdiction for restricting the wide scope of section 561‑A of the Code in the way suggested by Mr. Chowdhury even when this Court is convinced that the procedure followed by the District Magistrate was not the right procedure as laid down by the Code. Further in a case like this interference is called for to secure the ends of justice. The order moved against was not at any rate passed by an Executive Officer in his purely administra tive capacity. The District Magistrate was here working according to the authority of the sentencing Court and he was bound to follow the course as laid down by the Criminal Procedure Code. In that view the decision cited by Mr. Chowdhury does not stand in the way.

34. In the result the order of the District Magistrate dated 30th August 1960, cannot stand and it is set aside and the pro ceedings by way of distress warrant for the execution of fine is quashed. The District Magistrate is directed to take action only according to the provisions of section 386 of the Criminal Procedure Code as indicated in my judgment. The Rule is made absolute in these term. S. B. Rule made absolute.