Supreme court: Appeal Against Composite Sentence Of Imprisonment & Fine Does Not Abate On The Death Of The Accused

 Rejecting the above submission, this Court laid down that if by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. In paragraph 10, following was laid down:

10. The narrow question which then requires to be considered is whether an appeal from a composite order of sentence combining the substantive imprisonment with fine is for the purposes of Section 431 not an appeal from a sentence of fine. It is true that an appeal from a composite order of sentence is ordinarily directed against both the substantive imprisonment and the fine. But, such an appeal does not for that reason cease to be an appeal from a sentence of fine. It is something more not less than an appeal from a sentence of fine only and it is significant that the parenthetical Clause of Section 431 does not contain the word "only". To limit the operation of the exception contained in that Clause so as to take away from its purview appeals directed both against imprisonment and fine is to read into the Clause the word "only" which is not there and which, by no technique of interpretation may be read there. The plain meaning of Section 431 is that every criminal appeal abates on the death of the Accused "except an appeal from a sentence of fine". The Section for its application requires that the appeal must be directed to the sentence of fine and not that it must be directed to that sentence only. If by the judgment under appeal a sentence of fine is imposed either singularly or in conjunction with a sentence of imprisonment, the appeal against conviction would be an appeal from a sentence of fine within the meaning of Section 431. All that is necessary is that a sentence of fine should have been imposed on the Accused and the appeal filed by him should involve the consideration of the validity of that sentence.

16. The above judgment categorically laid down that even if sentence of fine is imposed alongwith the sentence of imprisonment Under Section 431, such appeal shall not abate. The similar expression, which was used in Section 431, i.e., "except an appeal from the sentence of fine" has been used in Section 394 Code of Criminal Procedure. Thus, the appeal in the present case where Accused was sentenced for imprisonment as well as for fine has to be treated as an appeal against fine and was not to abate and High Court did not commit any error in deciding the appeal on merits.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 77 of 2020 

Decided On: 21.01.2020

 Ramesan (Dead) through L.R.  Vs.  The State of Kerala

Hon'ble Judges/Coram:

Ashok Bhushan and M.R. Shah, JJ.

Citation: MANU/SC/0065/2020,(2020) 3 SCC 45

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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 court can direct payment of compensation where fine is already part of sentence?

 Section 357 (3)          Cr.P.C. provides that           when a court

imposes a sentence, of which fine does not form a part, the

Court may, when passing judgment                   order the accused

person to pay, by way of compensation such amount as

may be specified in the order to the person who has

suffered any loss or injury by reason of the act for which

the accused person has been so sentenced. It is clear from

sub Section (3) of Section 357 Cr.P.C., that the court

can award compensation                 under Section 357 (3) Cr.P.C.

only if fine does not form part of the sentence.                 If fine

forms part of the sentence,                  the Court can award

compensation only under Section 357 (1) Cr.P.C. and not

under Section 357 (3) Cr.P.C.                The compensation under

                          

Section 357 (1) Cr.P.C can be            awarded only out of the

fine amount and hence, the said compensation cannot

exceed the fine amount. When there is no sentence of fine,

no direction          for compensation under Section 357 (1)

Cr.P.C can be issued. If the Court imposes a sentence other

than fine, the Court can award compensation under Section

357 (3) Cr.P.C., if the Court deems it necessary.


      10.     The Apex Court in Sivasuriyan v. Thangavelu

[(2006) 1 SCC (Cri) 532] considered the question as to

whether the Court can direct payment of compensation in

exercise of power under sub-section (3) of Section 357 in a

case where fine already forms part of a sentence and held

that the power under Section 357 (3) Cr.P.C. can be

exercised only when Court imposes sentence of which fine

does not form a part.


      11.        In the present case, the only sentence awarded

by the appellate court was fine. Since sentence of fine was

awarded by the appellate court, the order of the appellate

court awarding           compensation    under Section 357 (3)

                      
Cr.P.C is not legal and correct and consequently, the same

cannot be sustained.
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT:

       MR. JUSTICE B.SUDHEENDRA KUMAR

 7TH DECEMBER 2016/

             Crl.Rev.Pet.No. 507 of 2011 

    KOLATTERI PURUSHOTHAMAN,
   Vs
         P.B.MOHAN KUMAR,

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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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