1. This case is referred to this Court under Section 438, Criminal Procedure Code.
2. It appears that the Sub-Divisional Magistrate of Bihar received a report to the effect that one of the carriages of the Bihar Bukhtiarpore Light Railway had been damaged by a motor car belonging to one Saiyid Abdul Majid. An application was made by the Traffic Inspector to the Sub-Divisional Magistrate for the purpose of realizing Rs. 38-8 0 which was alleged to be the amount of the damage which was done to the carriage. The Magistrate purporting to act under Section 386, Criminal Procedure Code, issued a distress warrant for the realization of the said amount, and the sum was so realized. The proceedings, such as they may be called, were referred to this Court for the purpose of setting aside the warrant and the recovery of the sum of money as being highly illegal.
3. It is perfectly clear that the procedure which was adopted was wholly illegal. Section 386, Criminal Procedure Code, gives a Court a right to issue a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender; but before that part of the section can be put into action it is necessary that the Court issuing that warrant should have sentenced the offender to pay a fine. That is a condition precedent to the issue of any warrant of the character which has been issued. There is no suggestion that Saiyid Abdul Majid had been fined or in any other way made to come within the jurisdiction of the Sub Divisional Magistrate. In these circumstances, the warrant was wholly illegal and the recovery of the sum of Rs. 38 8-0 was also illegal. The warrant for the recovery of the sum of Rs. 38-8-0 from Saiyid Abdul Majid must be set aside. I direct that the sum of Rs. 38-8-0 be refunded to Saiyid Abdul Majid.