In Re: Mariyappan

Somasundaram, J.—There is a reference by the learned District Magistrate of South Arcot under the following circumstances. The accused in this case was convicted under S. 2 (16) of the Madras Shops and Establishments Act, 1947. The offence is punishable only with a fine not exceeding Rs. 50. The trial Court applied the provisions of S. 3of the Madras Probation of Offenders Act and released the accused after due

admonition. The District Magistrate has taken up this case under the revisional jurisdiction and referred it to this Court on the ground that S. 3of the

Madras Probation of Offenders Act does not apply to cases which are punishable with fine only. S. 3of the Madras Probation of Offenders Act is

as follows :

In any case in -which a person is found guilty of the offence of theft, dishonest misappropriation, or cheating punishable under the Indian Penal

Code or of any offence punishable with not more than two years'' imprisonment and no previous conviction is proved against him the Court by which he is found guilty may, if it thinks fit, having regard to the age, character, antecedents or physical or mental condition of the offender and to the trivial nature of the offence or any extenuating circumstances under which the offence was committed, instead of sentencing him to any

punishment, release him after due admonition.

As the section mentions only offences punishable with not more than two years'' imprisonment, the District Magistrate is of opinion that this will not apply to offences which are punishable only with fine. In Emperor v. Manchershaw 59 Bom, 352 a Bench of the Bombay High Court consisting of

Beaumont C.J. and Wadia J. were considering whether S. 562 (1-A) Crl.P.C. would apply to a case in which the offence was punishable only with fine. They were also dealing with a reference by a District Magistrate on a similar ground. They pointed out:

S. 562is designed to enable the Court to deal leniently with first offenders convicted of offences not of the first gravity, and it is certainly strange to

suggest that the section does not apply to offences of such a minor character as to be punishable only with fine. Sub-S. (1) deals with offences

"punishable with imprisonment for not more than seven years," and if the words are construed literally, it may be said that they do not cover an

offence punishable with fine and not with imprisonment, and this view of the Sub-section was taken by this Court in Emperor v. Kasturi 28 B.L.R.

1031, Sub-S. 1-A deals with offences "punishable with not more than two years imprisonment" and taking these words literally, they seem to

cover an offence punishable only with fine, which cannot be said to be more than two years'' imprisonment.

I do not suppose that the legislature intended to found any distinction upon the different phraseology used, and personally I should have been prepared to bold that both Sub-sections apply-to offences punishable with a less severe sentence than that referred to in the respective sub-

sections, and I should say that a fine is a less severe sentence, than imprisonment (See S. 53 I.P.C.). We are bound by the decision of this Court already referred to upon the construction of S. 662 (1) but I see DO reason why we should not give to S. 662 (1-A) a meaning justified by a literal construction of the language and consonant with what appears to be the intention of the section, and hold that the Sub-section covers offences punishable only with fine.

In Emperor v. Vaijappa 60 Bom. 55 at 61 again, the same question arose for reference and a Full Bench held as follows:

It is clear that an offence punishable with fine only is an offence of a minor character, of very much less gravity than an offence punishable with imprisonment up to seven years. Reading the section as a whole, I have no doubt whatever that the expression ''offence punishable with imprisonment for not more than seven years was intended to be read in the same sense as the expression in Sub-S. (1-A)'' offence punishable with not more than two years'' imprisonment and that both expressions were intended to cover offences punishable with a less severe sentence than those indicated, and, therefore to include offences punishable only with fine.

The provisions of S. 3of the Madras Probation of Offenders Act are exactly similar to those in Ss. 561and 561 (1-A); the words are practically the same. Following the reasoning in the above two decisions, I must also hold that in view of the similarity of the provisions, a sentence of fine is certainly included within the meaning of punishment of not more than two years'' imprisonment. In the circumstances, the trial Court was justified in applying the provisions of S. 3of the Madras Probation of Offenders Act. This reference is therefore not accepted, and it is returned to the District

Magistrate.