ORDER B.N. Katju, J.
1. This is an application under Section 482 Cr. P. C. praying that the judgment of the II Additional Sessions Judge, Mainpuri dated 2-2-1979 and the proceedings against the applicants for the realization of fine of Bs, 20.000/- be quashed.
2. Mahtab Singh, the father of the applicants, was convicted under Section 468 I. P. C. on three counts and sentenced to four years' R. I. under each count in S. T. 96 of 1960 by the judgment of the Sessions Judge of the link court of Sessions Judge Farrukhabad at Mainpuri (hereinafter referred to as the judge) dated 18-6-1964. He was also convicted under Section 468 I. P. C. on three counts and sentenced to four years R. I. under each count by the judgment of the learned Judge dated 18-6-1964 passed in S.T. No. 97 of 1960. He was also convicted under Section 120B, I.P.C. and sentenced to two years R. I. and under Section 468 on ten counts and sentenced to four years R. I. and a fine of Rs. 2,000/- under each count by the judgment of the learned Judge dated 18-6-1964 passed in S. T. No. 98 of 1960. In default of payment of fine he was ordered to undergo one year R. I. under each count. The substantive sentences of imprisonment awarded to Mahtab Singh in the above-mentioned three sessions trials were ordered to run concurrently.
3. Mahtab Singh filed Criminal Appeal No. 1396 of 1964 against the judgment of the learned Judge passed in S. T. No. 96 of 1960, which was admitted in this Court on 22-6-1964, and he was ordered to be released on bail on his furnishing security to the satisfaction of the District Magistrate, Mainpuri and the realization of fine was stayed meanwhile,
4. Mahtab Singh filed Criminal Appeal No. 1395 of 1964 against the judgment of the learned Judge in S. T. No. 97 of 1960, which was admitted in this Court on 22-6-1964, and he was ordered to be released on bail on his furnishing security to the satisfaction of the District Magistrate, Mainpuri and the realization of fine was also stayed.
5. Mahtab Singh filed Criminal Appeal No. 1397 of 1964 against the judgment of the learned Judge in S. T. No. 98 of 1960 which was admitted in this Court on 22-6-1964 and he was ordered to be released on bail on his furnishing security to the satisfaction of the District Magistrate, Mainpuri and the realization of fine was stayed.
6. It appears that the orders dated 22-6-1964 staying the realization of fine in criminal appeals No. 1396 of 1964 and 1395 of 1964 were set aside by this Court by its orders dated 24-6-1964 as in S. T. No. 96 of 1960 and S. T. No. 97 of 1969 out of which these two appeals arose, Mahtab Singh had not been awarded any sentence of fine.
7. All the three appeals (Criminal Appeals No. 1395, 1396 and 1397 of 1964) were heard together and were dismissed by this Court by a common judgment dated 9-1-1968.
8. Mahtab Singh filed an application in this Court under Section 134(1)(c) of the Constitution for a certificate of fitness for leave to appeal to the Supreme Court in all the three appeals, which was rejected by this Court by its order dated 8-4-1970.
9. It appears that special leave was granted to Mahtab Singh by the Supreme Court in all the three cases (Criminal Appeal No. 1395, 1396 and 1397 of 1964 on 30-11-1970).
10. An application was moved by Mahtab Singh under Section 426(2B) Cr. P. C. 1898 in this Court on 7-12-1970 praying that during the pendency of this appeal in the Supreme Court he be released on bail and the realization of fine may also be stayed. This Court passed the undermentioned order on the said application on 8-12-1970.
Let the applicant be released on bail subject to his furnishing two sureties to the satisfaction of A, D. M. (J) Mainpuri, Stay realization of fine meanwhile. On 9-12-1970 this Court passed the undermentioned order suspending the order dated 8-12-1970.
"Subsequently it was brought to my notice that the order of the Supreme Court was not very clear as to whether special leave has been granted in all the three appeals. Under the circumstances the order passed yesterday is suspended.
11. An application was thereafter moved by Mahtab Singh on 16-12-1970 praying that the order dated 9-12-1970 passed by this Court be modified and the order dated 8-12-1970 passed by this Court be restored and the undermentioned order was passed on the said application by this Court on the same day (16-12-1970).
The copy of the order of the Supreme Court now filed shows that special leave was granted by the Supreme Court in all the three appeals. In one the realisation of fine had already been stayed by this Court. In the other two appeals, the sentences were of imprisonment. In these appeals the applicant shall be released on bail subject to his furnishing two sureties to the satisfaction of the A. D. M. (J) Manipuri.
12. The three appeals of Mahtab Singh were dismissed by the Supreme Court by its judgment dated 10-1-1975.
13. On 4-6-1975 the judicial Magistrate Mainpuri started proceedings against Mahtab Singh for the recovery of fine. Objection was filed by Mahtab Singh which was dismissed by the Judicial Magistrate on 2-5-1977. Mahtab Singh filed a revision against the aforesaid order which was allowed by the Sessions Judge Mainpuri by his judgment dated 18-7-1977 and the proceedings before the judicial Magistrate, Mainpuri, were quashed,
14. In accordance with the order of the sessions Judge Mainpuri dated 18-7-1977 the II Additional District and -Sessions Judge, Mainpuri issued warrant to the Collector, Mainpuri, authorising him to realise the amount of the fine as arrears of land revenue from the movable and immovable properties of Mahtab Singh under Section 421(1)(b) Cr. P. C. 1973.
15. Mahtab Singh died on 18-8-1978.
16. The house and agricultural plots of the applicants were attached on 22-8-1978 in execution of the warrant dated 27-7-1977 issued against Mahtab Singh for the recovery of fine.
16-A. Objections were filed by the applicants before the II Additional District and Sessions Judge, Mainpuri on 2-9-1978 and 30-9-1978, which were rejected by the learned Judge by his order dated 2-2-1979.
17. Section 70 I. P. C. runs as follows:
70. The fine, or any part thereof which remains unpaid, may be levied at any time within six years after the passing of the sentence, and, if, under the sentence, the offender be liable to imprisonment for a longer period than six years, then at any time previous to the expiration of that period; and the death of the offender does not discharge from the liability any property which would, after his death, be legally liable for his debts.
It is clear from a plain reading of Section 70 I. P. C. that fine can be levied at any time within six years after the passing of the sentence by the trial court. In computing the period of limitation of six years for levying the fine from the date of the passing of the sentence by the trial court the period during which the sentence passed by the trial court was stayed by the appellate courts has to be excluded. I am fortified in my view by the under mentioned observations of the Supreme Court in Palakdhari Singh v. State of U.P. :
... But the language of Section 70 prescribed that terminus a quo to be the date of "passing of the sentence" by Court which passes such order and the filing of appeals or revision does not, unless specifically ordered, arrest the operations of the order of passing of the sentence of conviction.
In the present case the judgment of the trial court which passed the sentence of fine against Mahtab Singh was dated 18-6-1964. The realization of fine was stayed by this Court in Criminal Appeal No. 1397 of 1964 on 22-6-1964 and the aforesaid appeal was dismissed on 9-1-1968.
18. The question that, however, remains to be considered is whether the realization of fine had been stayed by this Court during the pendency of the appeal of Mahtab Singh in the Supreme Court. This Court by its order dated 8-12-1970 had stayed the realization of fine during the pendency of the appeal of Mahtab Singh in the Supreme Court. The aforesaid order was, however, suspended by the order of this Court dated 9-12-1970. The order of this Court dated 16-12-1970 did not revoke the order of this Court dated 9-12-1970 and restore the order of this Court dated 8-12-1970. It is merely stated in the order of this Court dated 16-12-1970 that in one of the appeals filed by Mahtab Singh in the Supreme Court the realization of fine had already been stayed by this Court. This obviously refers to the order of this Court dated 8-12-1970 by which the realization of fine had been stayed during the pendency of the appeal of Mahtab Singh in the Supreme Court but it does not mean that the order of this Court dated 8-12-1970 staying the realization of fine during the pendency of the appeal of Mahtab Singh in the Supreme Court, which was suspended by the order of this Court dated 9-12-1970 was restored. There was thus no order passed by this Court, staying the realization of fine during the pendency of the appeal of Mahtab Singh in the Supreme Court after the order of this Court dated 8-12-1970 staying the realization of fine during the pendency of the appeal of Mahtab Singh in the Supreme Court had been suspended by the order of this Court dated 9-12-1970. As the warrant for levying the fine against the property of Mahtab Singh which was in the hands of the applicants who are his heirs was issued on 27-7-1977, it was time barred under Section 70 I. P. C. as it was issued more than six years after the passing of the sentence of fine against Mahtab Singh by the trial court.
19. This application is accordingly allowed, The order of the II Additional Sessions Judge, Mainpuri dated 2-2-1979 and the proceedings against the applicants for the realisation of fine of Rs. 20,000/- awarded to Mahtab Singh pending in the court of II Additional Sessions Judge, Mainpuri are quashed.
20. The prayer on behalf of the State for a certificate that this case is a fit one for appeal to the Supreme Court is rejected.