2011 (2) TMI 67 - HC - Customs

Imprisonment for non-payment of fine when offence punishable with fine only - Section 67 of IPC - In case of non-payment of fine on conviction the Court can give directions for imprisonment of the accused/offender for maximum sentence is six months - Power exercised by the learned ACMM in this case asking prosecution to reimburse the cost for attending proceedings to the accused was unlawful - The learned ACMM could not have resorted to Section 67 of IPC for recovery of cost - The petition is allowed.

Summary

Issues:
1. Validity of the order passed by the learned ACMM under Section 67 of IPC for non-payment of cost.
2. Authority of a Metropolitan Magistrate to award costs to the accused for attending court proceedings.
3. Exceeding jurisdiction by the learned ACMM in directing the prosecution to reimburse the cost to the accused.
4. Applicability of Section 67 of IPC for recovery of cost.
5. Allegations of malice in the orders passed by the ACMM in customs cases.

Analysis:
1. The petitioner challenged the order dated 13th April, 2010, where the learned ACMM sentenced the Commissioner of Customs to imprisonment for six months for non-payment of cost. Section 67 of IPC allows imprisonment for non-payment of fine when the offense is punishable with a fine only. The Section can be invoked in such cases, and the maximum sentence is six months. However, in this instance, the ACMM's decision was based on the reimbursement of costs to the accused, which is not covered under this provision.

2. The ACMM imposed costs on the State to be reimbursed to the accused for attending court proceedings, citing the need to discourage unreasonable adjournments. However, there is no provision in the Criminal Procedure Code (Cr. P.C.) granting a Metropolitan Magistrate the power to award costs to the accused for attending court proceedings. The Magistrate's authority is limited to granting costs to witnesses for deposition, not to the accused.

3. The judgment highlighted that the ACMM exceeded his jurisdiction by directing the prosecution to reimburse the costs to the accused. The ACMM's decision was deemed unlawful as there was no inherent power available to the Magistrate for such actions. The court emphasized that any costs imposed should be deposited with the State and not given directly to the accused.

4. The court concluded that the ACMM's resort to Section 67 of IPC for the recovery of costs was inappropriate. The Criminal Procedure Code already outlines procedures for the recovery of costs through attaching movable or immovable assets. Therefore, the ACMM's order was considered to be influenced by extraneous reasons, especially given previous instances of similar questionable orders in customs cases.

5. The judgment allowed the petition, setting aside the ACMM's order and highlighting concerns about potential malice in the ACMM's decisions in customs cases. The court's decision aimed to rectify the unlawful exercise of power and ensure adherence to proper legal procedures. A copy of the order was directed to be sent to the Chief Justice for further action or awareness.