T. Srinivasan vs State by C.B.I. (S.P.E.) Special Police Establishment, Madras

Somasundaram, J.—The Petitioner was the Permanent Way Inspector in the Southern Railways. He was tried for an offence u/s 5(2) read with S. 5(i)(e) of the Prevention of Corruption Act, 1947, by the Special Judge, Madras He was convicted and sentenced to undergo R.I. for one year and to pay a fine of Rs. 25,000/- with a default sentence for one year. He preferred an appeal in C.A. 317 of 1968 to this Court and it was dismissed on 22nd April 2. 1970. He was recommitted for undergoing the imprisonment, on 30th November 1970. He completed both the substantive sentence and the default sentence on 7th April 1971. On 20th April 1971, the Special Judge issued a distress warrant for realising the fine amount of Rs. 25,000/- by attachment and sale of his movables. This was returned on the ground that no substantial assets were available in his house at Salem. During the investigation, the police had seized one sale deed and certain prize-bonds that stood in his name. They had also seized some share certificates standing in the name of his wife, Thiagarajasekari. Some Unit Trust certificates that stood jointly in his name, and in the name of his wife were also seized. The documents were marked as exhibits on the prosecution side for showing that he possessed assets disproportionate to his known sources of income. The Special Judge, in his judgment, held that the share certificates standing in the name of his wife were really his and that they were acquired by corrupt means. This finding was affirmed by this Court in C.A. 317 of 1968. The Special Judge then appointed a Receiver to take possession of the certificates and realise the amounts due under them. By sale of the Government of India premium prize-bonds, the Receiver realised a sum of Rs. 1,298/-. This realisation was intimated to the jail authorities and they in their turn had given a proportionate remission in the default sentence ordered by the Court. On 21st August 1971, the Petitioner filed a petition before the Special Judge in Cr. M.P. 96 of 1971 for getting a release of the documents relating to the shares and the prize bonds which were in the custody of the Receiver. He contended that since he had already served the default sentence, no step could be taken for realising the fine amount. Observing that the amounts covered by these certificates could be realised towards the fine amount, the learned Special Judge dismissed the said petition. The correctness of this order is now canvassed in this revision.

The proviso to S. 386(1), Cr.P.C., states that if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, no Court shall issue such warrant unless for special reasons to be recorded in writing it considers it necessary to do so. The distress warrant in this case was issued even when the Petitioner was undergoing his terms of imprisonment. Thus, he had not undergone the whole of the default sentence ordered by the Court, so as to come within the ambit of the proviso to S. 386(1). The proviso to S. 386(1) enables the Court to issue a warrant for recovery of fine even if the whole default sentence has been served, if the Court considers that there are special reasons for issuing the warrant. What is made obligatory is that there should be special reasons for issuing the warrant. Serving the full term of imprisonment fixed for default in the payment of fine, does not extinguish the liability to pay the fine. The special reasons referred to in the proviso must necessarily relate, in view of the wording of that Section, to reasons accounting for the fact of the non-recovery of fine before de-fault sentence has been served, or any other reason in that behalf. The proviso contemplates cases in which, for sufficient reasons, the authorities have not been able to realise the fine before the default sentence is served, and this proviso has to be availed of by them when for no fault or negligence of their own they are unable to recover the fine. The proviso requires the recording of special reasons only in cases where the distress warrant is issued after the offender had undergone the whole of the imprisonment in default. But, it is not necessary, where it is issued before. In this case, steps had been taken sufficiently in time for realising the fine amount even when the Petitioner was undergoing the imprisonment. Moveables were not available for attachment in the house. The Court then had proceeded to distrain the movables of the Petitioner in the shape of stock shares certificates standing in his name and in the name of his wife by appointing a Receiver, as provided for by law.

The learned Special Judge had, thus, correctly dismissed the Petitioner''s application. The revision is, therefore, dismissed.