Safder Khan and Another vs Gaya Municipality

Dhavle, J.—The two petitioners have been convicted of burning bricks in the Gaya, Municipality, an offence u/s 263, i Bihar and Orissa Municipal Act, 1922, and ; sentenced "to pay a fine of Rs. 50 jointly" with one month''s simple imprisonment in default in case of each of them. I issued a rule on the question of sentence. A joint fine with terms of imprisonment in default is plainly open to the objection that it is impossible to say whether either of the convicted persons is liable to suffer the entire term of imprisonment and for what proportion of the default. Mr. Raj Kishore Prasad, who has appeared for the opposite party, has drawn my attention to a case referred to in Ratan Lal''s Law of Crime in which the Bombay High Courb seems to have held that a joint fine may be recovered from all or any of the persons in question. That may be, but the order in the present case cannot be supported for the reason I have already indicated.

It has also been urged on behalf of the petitioners that they had no intention of evading payment of the fee fixed by the Municipality for such license. There is some force in this contention; but the evidence referred to by the trying Magistrate shows that though, on the one hand, the petitioners had in fact applied for a license, they were not anxious to pay the full license fee; the Municipality, on the other hand, was trying to bring pressure on the petitioners to pay the balance of the license fee due from some other person.

Taking all the circumstances into account, I consider that the sentence passed upon the petitioners should be replaced by a fine of Rs. 10 in the case of each petitioner with one week''s simple imprisonment in default.