Questions and answers on law Part 43

 Q1:-  Whether the court can allow production of sale deed of subsequent purchaser of suit property as additional evidence in a civil appeal executed during pendency of  partition suit?

Ans:- The court should not allow production of sale deed of subsequent purchaser in civil appeal as it production its not necessary for disposal of appeal.

Q 2:- An undertrial who is suffering life imprisonment is convicted for an offence U/S 325 of IPC. Whether  his subsequent sentence will run concurrently?

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Whether court can direct that default sentences can run concurrently?

 In terms of the decision taken by this Court in Sharad Hiru

Kilambe, the default sentence cannot be directed to run

concurrently. The discussion in that behalf is to be found in

paragraphs 17 and 18 of said decision which for facility are quoted

hereunder:

“17. In the circumstances, we reject the

submission regarding concurrent running of

default sentences, as in our considered view

default sentences, inter se, cannot be directed

to run concurrently.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.818-820 OF 2021

DUMYA ALIAS LAKHAN ALIAS INAMDAR Vs  STATE OF MAHARASHTRA

Dated: AUGUST 13, 2021.

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Whether the court can direct concurrent running of default sentences in cheque dishonour case?

Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and the law laid down by the Hon'ble Supreme Court in State of Punjab vs. Madan Lal, V.K.Bansal vs. State of Haryana & Ors., Shyam Pal vs. Dayawati Besoya & Anr. and Ammavasai & Anr. vs. Inspector of Police & Ors. (supra), I am of the considered view that it would not be inconsistent with the administration of criminal justice if the petitioner is allowed the benefit of discretion contained in section 427 of the Code to meet the ends of justice. However, as per the law laid down by the Hon'ble Supreme Court in V.K.Bansal vs. State of Haryana & Ors. and Shyam Pal vs. Dayawati Besoya & Anr. (supra), the direction for concurrent running of sentences would be limited only to the substantive sentences alone.

In such circumstances, the present misc. petition is allowed and it is ordered that the substantive sentences awarded to the petitioner in the above referred 32 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Criminal Misc(Pet.) No. 947/2020

Lakshmi Narayan Songara Vs  State,

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order : 21/01/2021

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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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Supreme Court: Governing principle for determining amount of fine to be imposed

 Insofar as the nature and extent the power to impose fine is concerned, Section 63 of the Indian Penal Code provides some guidelines and states that wherever no sum is expressed to which a fine could extend, the amount should not be excessive. It follows that if the law in question or the concerned provision stipulates the quantum or minimum amount of fine, the Courts must be guided by such specification. In Shantilal (supra) this Court considered the nature of imposition of fine and what attending circumstances ought to be taken into account by the Court while directing imprisonment for nonpayment of fine. Para 31 of the said decision is as under;

31. The next submission of the learned Counsel for the Appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or "otherwise". A term of imprisonment ordered in default of payment of fine stands on a different footing. A person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the power, but the duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1209 of 2018 

Decided On: 20.09.2018

 Sharad Hiru Kolambe Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Abhay Manohar Sapre and U.U. Lalit, JJ.

Citation:AIR 2018 SC 4595,(2018)18 SCC 718.

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Whether Default Sentences, Inter Se, Can Be Directed To Run Concurrently?

 The principle laid down by the Hon’ble Apex
Court in the decisions cited supra makes it crystal clear that
imposition of the term of imprisonment in default of payment
of fine is not a sentence and it is a penalty which a person
incurs on account of non-payment of fine. It is also made clear
that if such default sentence is imposed, undoubtedly, an
offender must undergo unless it is modified or varied in part or
whole in the judicial proceedings. Therefore, there is no power
for the Court to order the default sentences to run concurrently.
The Hon’ble Apex Court also made it clear that when such a
default sentence is imposed, a person is required to undergo
imprisonment either because he is unable to pay the amount of
fine or refuses to pay such amount.”
The conclusion regarding concurrent running of default sentence was
as under:
“18. It is relevant to state that there are provisions under
the code, as pointed out earlier, to order the substantive
sentences to run concurrently and the legislature specifically
excluded such power to the Court in respect of ordering the
default sentences to run concurrently. The Court cannot add or
substitute any additional words to any particular provision of
the Code. It is not for the Court to take up the work of
legislation and the Court can only apply the provision contained
under the Code as it is. It is well-settled in a catena of decisions
that the term of imprisonment in default of payment of fine
cannot be deemed to be a sentence, but a penalty which is
incurred on account of non-payment of fine.”
15. In the circumstances, we reject the submission regarding concurrent
running of default sentences, as in our considered view default sentences,
inter se, cannot be directed to run concurrently. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2018

(Diary No.33034 of 2017)

Sharad Hiru Kolambe Vs State of Maharashtra 

Dated:September 20, 2018
Uday Umesh Lalit, J.
Citation:AIR 2018 SC 4595,(2018)18 SCC 718

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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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When accused can not be relieved from default sentence for non-payment of compensation in cheque dishonour case?

Negotiable Instrument Act, 1881 (Central Act 26 of 1881) - Section 138--The fact that the accused has undergone civil detention, for non-satisfaction of the decree by Civil Court, cannot be taken advantage of by him, to relieve him from the default sentence for non-payment of the compensation, imposed by the Criminal Court--Accused has to necessarily undergo the default sentence, on non-payment of the compensation--Code of Criminal Procedure, 1973 (Central Act 2 of 1974)--Section 357.

The revision is filed by the accused who stands convicted for having committed the offence punishable under Section 138 of the Negotiable Instrument Act. The petitioner was sentenced to undergo simple imprisonment for 6 months and to pay a fine of ` 2,05,000, in default to undergo simple imprisonment for 3 months. The petitioner contended that the complainant had also instituted a civil suit for realization of money due on the cheque and the petitioner had undergone detention in civil prison in execution proceedings of the decree passed in the civil suit and therefore the petitioner is not liable to pay the compensation awarded by the court below in terms of Section 357(5) Cr. P.C. Dismissing the revision, it was Held:

Awarding of compensation under sub-section (1) of Section 357 of the Code, which applies to a case where fine is imposed and any sum thereof is to be paid to compensate any person, or compensation as such under sub-section(3) which does not form part of the fine, depends upon judicial discretion to be exercised by the Magistrate, having regard to the totality of the facts involved and also the offence for which conviction was entered into. When awarding such compensation, if there was already a decree passed by a court with respect to compensation over the same matter, necessarily, exercise of judicial discretion has to take into account the compensation awarded earlier. But that exercise of judicial discretion, is not liable to be interfered with, unless there is reason to hold that the party, in whose favour compensation is awarded is doubly benefited or enriched unfairly by a decree of compensation passed by a civil court. In the given facts of the case, the complainant has approached the criminal court to prosecute the accused for the offence emanating from the dishonour of the cheque issued by him, after complying with the statutory requirements; and, on establishing his case, the accused was convicted and sentenced. He has also taken recourse to the civil court for a decree to recover the amount covered by the cheque amount. Even after taking execution of the decree, it continues to be a paper decree despite personal execution levied against the accused, by which he was detained in civil prison for a period of three months, with the decree-holder remitting batta and other charges for his detention as such. His decree still remains unsatisfied. The fact that the accused has undergone civil detention, for non-satisfaction of the decree rendered by the civil court, cannot be taken advantage of by him, to relieve him from the default sentence for non-payment of the compensation, which necessarily has to be undergone as part of the sentence.

IN THE HIGH COURT OF KERALA

Crl. R.P. No. 1681 of 2011

Decided On: 13.07.2011

 Reghunanthan Vs. State of Kerala and another

Hon'ble Judges/Coram:

Mr. Justice S.S. Satheesachandran

Citation:2011 (3) KLT 493 :  2011 (3) KLJ 438 : ILR 2011 (3) Ker. 807 : 2011 (3) KHC 354 : 2011 (2) KLD 218

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

 These two judgments make it clear that the deeming fiction of Section 431 Cr.P.C. extends not only to Section 421, but also to Section 64 of the Indian Penal Code. This being the case, Section 70 IPC, 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 IPC 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).

Reportable

Supreme Court of India

Kumaran vs State Of Kerala And Anr on 5 May, 2017

Bench: Rohinton Fali Nariman, Navin Sinha

Citation:AIR 2017 SC 2433,(2017)7SCC471

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Whether compensation is recoverable in cheque bounce case if accused has undergone default sentence?

The present appeals raise an interesting question as to whether
when compensation is ordered as payable for an offence committed
under Section 138 of the Negotiable Instruments Act, and in default
thereof, a jail sentence is prescribed and undergone, is compensation
still recoverable.
A conspectus of the aforesaid judgments would show that
compensation under the old Cr.P.C. was always recoverable as a part
of fine, and that even after default imprisonment having been
undergone, a fine could still be collected in the manner provided by
Section 386. The requirement of special reasons was introduced by
the amending Act of 1923. The special reasons outlined in the
Bombay High Court judgment of 1935 as well as in the Mysore High
Court judgment of 1964 would show that it is enough that sufficient
reasons or some good reason be given in order that fine be realized
even after default imprisonment has been undergone. The Courts
held that despite the fact that the reach of Section 386(1) proviso was
only qua warrants that issued after default imprisonment was
undergone, yet, the principle of the proviso to Section 386(1) would
apply even to warrants issued before default imprisonment was

undergone. The law, therefore, till the enactment of the 1973 Code, made
it clear that Section 386, and Section 70 IPC read together would lead to
the conclusion that fines were recoverable even after default imprisonment
was undergone, provided there were special reasons for recovery of
the same. With the Code of 1973 came an interesting change.
Sub-section (3) was added to Section 357, which was an entirely new
provision making it clear that the Court may, when passing judgment,
order the accused to pay by way of compensation such amount as
may be specified in the order to the person who has suffered loss or
injury by reason of the act for which the accused person has been
sentenced. This is provided that the Court imposes a sentence of
which fine does not form a part. Another important change was made
in Section 421(1). The proviso to the said sub-section was altered
because the 41st Law Commission Report, in recommending
amendments to the old Section 386 stated, after noticing the Bombay
High Court judgment in Digambar’s case (supra) as follows :
“28.10. Fine should be recoverable when
compensation has been ordered. – We notice that in
the above judgment the fact that the complainant has
been allotted part of the fine was not considered a
relevant special reason for purposes of the proviso as it
stands. A contumacious offender should not, in our

opinion, be permitted to deprive the aggrieved party of the
small compensation awarded to it by the device of
undergoing the sentence of imprisonment in default of
payment of the fine. When an order under Section 545
has been passed for payment of expenses or
compensation out of fine, recovery of the fine should be
pursued, and in such cases, the fact that the sentence of
imprisonment in default has been fully undergone should
not be a bar to the issue of a warrant for levy of the fine.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal Nos. 896-897 of 2017

Kumaran V State of Kerala & Anr. 
Dated:May 5, 2017.

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Whether it is mandatory for court to impose default sentence together with a sentence of fine?

 From the wordings of the provision that, it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, it is evident that it is not at all imperative to impose a default sentence of imprisonment for the nonpayment of the fine amount. At the same time, the provisions show that it is merely permissible to impose a sentence of imprisonment in default of payment of fine. The aforesaid provision under S. 64 I.P.C. clearly reveals the competency of the concerned court to impose a default sentence of imprisonment for the nonpayment of fine. When the provision deals with the competency of the Court, it has to be considered that it is merely permissible and not imperative that a sentence of imprisonment in default of payment of fine should also be imposed, together with the sentence of fine.

6. I am fortified by the decision of the Division Bench of this Court in State v. Krishna Pillai Madhavan Piilai (MANU/KE/0017/1952 : 1953 KLT 28), where it was held in page 29 as follows:-

"The jurisdiction of the trial court to impose a sentence of imprisonment in default of payment of fine is merely permissive. It is not imperative to award a term of imprisonment in default of payment of a fine. S. 64 of the Penal Code (Section 53 of the Travancore Code) only states that it shall be competent to the court to impose a sentence of imprisonment for nonpayment of fine. Further, imprisonment in default of payment of fine does not liberate an accused person from his liability to pay the fine imposed on him. Such imprisonment does not serve as discharge or satisfaction of the fine, but is imposed as a punishment for non-payment. The fine would remain alive for collection for six years after the passing of the sentence".

7. The position is clear that even in a case where a default sentence of imprisonment is imposed in default of payment of fine and the accused serves out the said default sentence, it will not liberate him from the liability to pay the fine imposed on him. Still in such case, through other methods, if available, the amount of fine can be realised from the accused. Therefore, it is a discretion granted to the concerned court to decide whether default sentence of imprisonment has to be imposed for nonpayment of fine.

8. If a person has known sources of income or money in abundance with him, even without a default sentence, the fine can be realised. Evidently the said discretion to impose a default sentence for non-payment of fine is vested with the Court, only for the purpose of compelling the accused to pay the fine within a specified time. Apart from that, it has no importance at all. That is the reason why the Legislature has imposed a condition that such default sentence cannot be concurrent with the substantive term of imprisonment in the case. Apart from that, any set off cannot be granted under S. 428 of the Code of Criminal Procedure as against such default sentence.

9. The aforesaid aspects has been considered by the Apex Court in Vijayan v. Sadanandan K. & Anr. MANU/SC/0737/2009 : (2009 (2) KLT 618 (SC) : (2009) 6 SCC 652), wherein it was held in paragraph 30 that S. 64 of the Indian Penal Code makes it clear that while imposing a sentence of fine, the court would be competent to include a default sentence to ensure payment of the same.

10. In Shahejadkhan Mahebubkhan Pathan v. State of Gujarat (MANU/SC/0840/2012 : (2013) 1 SCC 570) it was held that,

"It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly an offender must undergo unless it is modified or varied in part of whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount".

When this Court has not imposed a sentence of imprisonment in default of payment of fine in this particular case, it has to be deemed that this Court has exercised the discretion judiciously and has deliberately avoided any such default sentence. Therefore, it has to be construed that, this Court has deliberately avoided any default sentence in respect of the sentence of fine imposed. The fine has to be realised from the accused through appropriate methods.

IN THE HIGH COURT OF KERALA

Crl. A. No. 838 of 2002

Decided On: 10.02.2016

 Madappen Muhassin  Vs. State of Kerala

Coram:B. Kemal Pasha, J.

Citation:2016 CRLJ4792

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Whether court can award default sentence for non-payment of fine when he has given benefit of probation of offender Act to accused?

The Apex Court in Isher Das v. The State of

Punjab (AIR 1972 S.C. 1295), referring to the Prevention

of Food Adulteration Act and the Probation of Offenders

Act held thus:-

              " Mr Mahajan has argued that if the trial

        magistrate took the view that the accused-appellant in

        view of his age, should not be sentenced to undergo

        imprisonment, the learned magistrate should still have

        imposed the sentence of fine as prescribed by sub-

        section (1) of section 16 of the Act. In this respect, we

        are of the opinion that a sentence of fine also carries

        with it the consequence of imprisonment in case the

        accused fails to pay the fine. As the object of Probation



        of Offenders Act is to avoid imprisonment of the person

        covered by the provisions of that Act, the said object

        cannot be set at naught by imposing a sentence of fine

        which would necessarily entail imprisonment in case

        there is a default in payment of fine."

      20.    An injunction is enacted by the Act against

passing of the sentence of imprisonment, which the court

under the normal circumstances and law is empowered to

pass. The imposition of default sentence on a person being

dealt with under Sections 3 and 4 of the Act is against the

policy of the Act as contained in the Preamble and the

Object of the Act. The Apex Court in Isher Das (supra)

held that the object of Probation of Offenders Act is to

avoid imprisonment of the person covered by the

provisions of that Act. Once the court is satisfied that there


exists ground for releasing the offender after admonition

under Section 3 of the Act or awarding deferred sentence

under Section 4 of the Act, it will be against the object,

purpose and spirit of the said provisions to direct the

indicted person to go to jail to serve out the sentence in

lieu of payment of compensation.     In such a situation, the

purpose of the provisions of Section 3 or Section 4 of the

Act is likely to be frustrated. As the object of Probation of

Offenders Act is to avoid imprisonment of the person

covered by the provisions of the Act, the said object cannot

be set at naught by imposing default sentence. Since the

object of the Act is to reform and rehabilitate the offender

as a useful and self-reliant member of the society without

subjecting him to deleterious effects of jail life, I am of the


view that imposing default sentence for non-payment of

compensation under Section 5 of the Act is not legal and

correct. For the said reasons, the courts below went wrong

in awarding the default sentence for non-payment of

compensation under Section 5 of the Act.
                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                    THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

            THURSDAY, THE 29TH DAY OF OCTOBER 2015
                                     Crl.Rev.Pet.No. 1520 of 2010 
                                     
           SCARIA @ KARIACHETAN,
Vs

           STATE OF KERALA,                
Citation;2016 CRLJ530

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Whether court can impose default sentence for non-payment of compensation U/S 5 of Act probation of offenders Act?

               An injunction is enacted by the Act against

passing of the sentence of imprisonment, which the court

under the normal circumstances and law is empowered to

pass. The imposition of default sentence on a person being

dealt with under Sections 3 and 4 of the Act is against the

policy of the Act as contained in the Preamble and the

Object of the Act. The Apex Court in Isher Das (supra)

held that the object of Probation of Offenders Act is to

avoid imprisonment of the person covered by the

provisions of that Act. Once the court is satisfied that there


exists ground for releasing the offender after admonition

under Section 3 of the Act or awarding deferred sentence

under Section 4 of the Act, it will be against the object,

purpose and spirit of the said provisions to direct the

indicted person to go to jail to serve out the sentence in

lieu of payment of compensation.     In such a situation, the

purpose of the provisions of Section 3 or Section 4 of the

Act is likely to be frustrated. As the object of Probation of

Offenders Act is to avoid imprisonment of the person

covered by the provisions of the Act, the said object cannot

be set at naught by imposing default sentence. Since the

object of the Act is to reform and rehabilitate the offender

as a useful and self-reliant member of the society without

subjecting him to deleterious effects of jail life, I am of the



view that imposing default sentence for non-payment of

compensation under Section 5 of the Act is not legal and

correct. For the said reasons, the courts below went wrong

in awarding the default sentence for non-payment of

compensation under Section 5 of the Act.                                        

                          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                     PRESENT:

                   MR. JUSTICE B.SUDHEENDRA KUMAR

            THURSDAY, THE 29TH DAY OF OCTOBER 2015

                                     Crl.Rev.Pet.No. 1520 of 2010 ( )
                                
 SCARIA @ KARIACHETAN,S/O.IYPE,  V   STATE OF KERALA, 

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Whether default sentences for non-payment of fine can be ordered to run concurrently?

The principle laid down by the Hon'ble Apex Court in the decisions cited supra makes it crystal clear that imposition of the term of imprisonment in default of payment of fine is not a sentence and it is a penalty which a person incurs on account of non-payment of fine. It is also made clear that if such default sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. Therefore, there is no power for the Court to order the default sentences to run concurrently. The Hon'ble Apex Court also made it clear that when such a default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount.

 In view of the aforesaid reasons, we are answering the reference to the effect that the default sentences for non-payment of fine cannot be ordered to run concurrently.

MADRAS HIGH COURT

Donatus Tony Ikwanusi vs The Investigating Officer on 30 January, 2013

CORAM

 MR . JUSTICE K.N.BASHA

MR.JUSTICE T.SUDANTHIRAM

AND

MR. JUSTICE P.DEVADASS

Citation; 2013 CR L J 1938 Madras (FB)

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Supreme court: Court should consider the capacity of accused to pay before issuing a direction to pay compensation

"The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of

compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default."

In Sarwan Singh & Ors. vs. State of Punjab [(1978) 4 SCC 111], this Court held :

"...Though Section 545 enabled the court only to pay compensation out of the fine that would be imposed under the law, by Section 357 (3) when a Court imposes a sentence, of which fine does not form a part, the Court may direct the accused to pay compensation. In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay a compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the court not directing such compensation. When a person, who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary mens rea to pay compensation for the person who has suffered injury."

The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefor in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub- Section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge.

If a fine is to be imposed under the Act, the amount of which in the opinion of the Parliament would be more than sufficient to compensate the complainant; can it be said, that an unreasonable amount should be directed to be paid by the Court while exercising its power under sub-Section (3) of Section 357? The answer thereto must be rendered in the negative. Sub- Section (5) of Section 357 also provides for some guidelines. Ordinarily, it should be lesser than the amount which can be granted by a Civil Court upon appreciation of the evidence brought before it for losses which might have reasonably been suffered by the plaintiff. Jurisdiction of the Civil Court, in this behalf, for realization of the amount in question must also be borne in mind. A criminal case is not a substitution for a civil suit, far less execution of a decree which may be passed.

Prosecution under the Act may be contemplated as a measure of deterrence, but the same is never meant to be a persecution.

Even in a case where violation of fundamental right guaranteed under Article 21 is alleged, the amount of compensation cannot be arbitrary or unreasonable even under Public Law.

Supreme Court of India

Dilip S. Dahanukar vs Kotak Mahindra Co. Ltd. & Anr on 10 April, 2007

Bench: S.B. Sinha, Dalveer Bhandari

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