1. This is a reference by the Additional Sessions Judge of Meerut arising out of the following facts. Mehar Chand and Kanak Singh were tried before a Subordinate Magistrate on a charge under Section379 of the Indian Penal Code and were sentenced ‘each to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 5 each. A period of one week’s imprisonment was prescribed in default of payment of fine. Compensation was ordered to be paid to the complainant Chajju out of the fine if realized. Mehar Chand and Kanak Singh appealed to the -District Magistrate. He affirmed the conviction, but varied the sentence passed. He reduced, the period of imprisonment to one of three days, which period the appellants before him had actually undergone : but he directed the appellants each to pay a One of Rs. 100 or in default to undergo imprisonment for one month. The Additional Sessions Judge, when the case was brought before him in revision, found no reason for interference with the conviction, but has referred the matter to this Court, holding that the District Magistrate’s order amounts to an enhancement of the sentence and is, therefore, illegal. There is a good deal of authority for the proposition that the sentence passed by the District Magistrate in this case does not amount to an enhancement of the punishment, inasmuch as the aggregate period of imprisonment which the accused persons might have to undergo, even in default of payment of fine, does not exceed the total amount of imprisonment which they might have to undergo under the order of the trying Magistrate, Vide Queen Empress v. Chagan Jagannath 23 B. 439. and Bhakthavatsalu Naidu v. Emperor 30 M. 103 : 1 M.L.T. 375 : 5 Cr. L.J. 36 : 16 M.L.J. 560 (F.B.).
2. I venture to think that these rulings overlook the fact that a sentence of fine is not wiped out by serving the alternative sentence of imprisonment, but is still liable to be realized under process of the Court.. I should be inclined personally to prefer the decision of the learned Judges of the Calcutta High Court in Rakhal Raja v. Khirode Pershad Dutt 27 C. 175. It was there held that no general rule can be laid down to determine what is or is not an enhancement of sentence when only a portion of the sentence is altered to a punishment of a lesser degree of severity. In each case the Court has to consider what is the effect of the alteration. For the disposal of the reference before me, however, it does not matter which, of the opinions above expressed I am prepared to adopt. Sitting as a Court of revision I would not interfere with the order of the Court below, unless the persons invoking my interference can satisfy me that the order is open to interference on legal grounds. If Mohar Chand and Kanak Singh had put forward an affidavit showing that a fine of Rs. 100 was grossly out of proportion to their means, or if in their petition to the Sessions Judge they had even stated in plain terms that they would prefer to undergo the sentence passed by the trying Magistrate rather than pay the fine imposed by the District Magistrate in appeal, I think I should have been prepared to consider the question from the point of view taken by the learned Judges of the Calcutta High Court in the ruling to which I have referred. I find however nothing in the record before me to satisfy me that Mehar Chand and Kanak Singh really, consider a fine of Rs. 100 each a heavier sentence than one of a month’s rigorous imprisonment : for that is practically what the matter comes to. The conclusion 1 arrive at, therefore, is that I am not satisfied that in this case the Court of appeal had in fact enhanced the sentence passed by the Court of first instance. I, therefore, decline to interfere. Let the record be returned.