Whether accused is absolved of making payment of fine if he has undergone the sentence of default imprisonment?

1) Section 70 of IPC runs as follows :

"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."

2) The authors of the Indian Penal Code observe in respect of imprisonment in default of payment of fine :

"We do not mean that this imprisonment shall be taken in full satisfaction of the fine. We cannot consent to permit the offender to choose whether he will suffer in his person or in his property. To adopt such a course would be to grant exemption from the punishment of fine to those very persons on whom it is peculiarly desirable that the punishment of fine should be inflicted, to those very persons who dislike that punishment most, and whom the apprehension of that punishment would be most likely to restrain. We therefore propose that the imprisonment which an offender has undergone shall not release him from the pecuniary obligation under which he lies. His person will, indeed, cease to be answerable for the fine; but his property will for a time continue to be so. 

3) It is thus clear that section 70 meant, to lay down what appears to us to be very clear provision for recovery of the claims of the state against offenders against public justice, in respect of fine even when the accused underwent sentence of imprisonment in default of payment of fine; and it is the duty of the Courts to exercise the powers under section 70.

4) Having regard to the provisions of section 70 of the Indian Penal Code, it is clear that an accused cannot escape his liability of payment of fine by undergoing the default sentence and make a mockery of the sentence of fine, which is many times heavy, running into thousands of rupees or nullify the order with regard to the expenses and compensation.

36. We, therefore, upon perusal of the report of the Deputy Registrar and after hearing the Public Prosecutor and in exercise of the powers of this Court under section 401 of the Code of Criminal Procedure, 1973, lay down that, as a matter of practice, before returning the writs for recovery of the fine, the subordinate Courts should apply their minds to the provisions of section 421 of the new Criminal Procedure Code and decide whether any warrant is to be issued or whether any other order is to be passed in accordance with section 421, in the light of the observations made herein above.

37. The attention of all the Courts, subordinate to this Court is, therefore, invited to the provisions contained in section 70 of the Indian Penal Code, which must be read along with section 421 of the new Criminal Procedure Code and also the rules framed by the Government under section 386 (2) of the Criminal Procedure Code, 1898, with regard to the manner in which the execution is to be levied, which are continued until modified or superseded under section 484 (2) of the new Criminal Procedure Code.

IN THE HIGH COURT OF BOMBAY

Cri. Appeal No. 1264 of 1973

Decided On: 28.02.1977

 In Re: Report By Deputy Registrar High Court, Appellate Side Seeking Directions

Hon'ble Judges/Coram:

G.N. Vaidya and P.B. Sawant, JJ.

Citation: MANU/MH/0380/1977

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Whether convict is liable to pay compensation even after he has undergone default sentence in cheque dishonour case?

 The High Court, by the impugned judgment dated 8th August, 2012, held that despite the fact that the default sentence was undergone, yet, under the provisions of the Code of Criminal Procedure, compensation was recoverable, and upheld the orders of the learned Judicial Magistrate.

These two judgments make it clear that the deeming fiction of Section 431 Code of Criminal Procedure extends not only to Section 421, but also to Section 64 of the Indian Penal Code. This being the case, Section 70 Indian Penal Code, which is the last in the group of Sections dealing with sentence of imprisonment for non-payment of fine must also be included as applying directly to compensation Under Section 357(3) as well. The position in law now becomes clear. The deeming provision in Section 431 will apply to Section 421(1) as well, despite the fact that the last part of the proviso to Section 421(1) makes a reference only to an order for payment of expenses or compensation out of a fine, which would necessarily refer only to Section 357(1) and not 357(3). Despite this being so, so long as compensation has been directed to be paid, albeit Under Section 357(3), Section 431, Section 70 Indian Penal Code and Section 421(1) proviso would make it clear that by a legal fiction, even though a default sentence has been suffered, yet, compensation would be recoverable in the manner provided Under Section 421(1). This would, however, be without the necessity for recording any special reasons. This is because Section 421(1) proviso contains the disjunctive "or" following the recommendation of the Law Commission, that the proviso to old Section 386(1) should not be a bar to the issue of a warrant for levy of fine, even when a sentence of imprisonment for default has been fully undergone. The last part inserted into the proviso to Section 421(1) as a result of this recommendation of the Law Commission is a category by itself which applies to compensation payable out of a fine Under Section 357(1) and, by applying the fiction contained in Section 431, to compensation payable Under Section 357(3).

30. This being the case, we uphold the conclusion of the judgment dated 8th August, 2012 of the Division Bench of the Kerala High Court but for the reasons given in this judgment. The appeals are dismissed accordingly.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 896-897 of 2017

Decided On: 05.05.2017

 Kumaran Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:
Rohinton Fali Nariman and Navin Sinha, JJ.

Citation: 2017(5) BOMCR 360

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