Questions and answer on law part 10

Q. Whether accused who has undergone imprisonment as undertrial can be granted set off if he is convicted and sentenced to rigorous imprisonment by court?

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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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What are rights of legal heirs of deceased convicted accused of dishonour of cheque?

The legal heirs, in such a case, are neither liable to pay the fine or to undergo imprisonment. However, they have a right to challenge the conviction of their predecessor only for the purpose that he was not guilty of any offence. We have, therefore, allowed the application filed by the legal heirs to prosecute this appeal.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 664 of 2012

Decided On: 19.09.2019

M. Abbas Haji  Vs.  T.N. Channakeshava

Hon'ble Judges/Coram:
Deepak Gupta and Aniruddha Bose, JJ.

Citation: (2019) 9 SCC 606

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Whether court can grant imprisonment on default of payment of compensation in cheque bounce case?

Section 431 clearly provides that an order of compensation under Section 357(3) will be recoverable in the same way as if it were a fine. Section 421 further provides the mode of recovery of a fine and the section clearly provides that a person can be imprisoned for non-payment of fine. Therefore, going by the provisions of the code, the intention of the legislature is clearly to ensure that mode of recovery of a fine and compensation is on the same footing. In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payment of compensation under Section 357(3) should fail.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1052 of 2010 

Decided On: 11.05.2010

 K.A. Abbas H.S.A. and Ors. Vs.  Sabu Joseph and Ors.

Hon'ble Judges/Coram:

P. Sathasivam and H.L. Dattu, JJ.

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Whether sentence of imprisonment awarded to accused can be waived on payment of additional compensation?

Considering the fact that the Appellant has complied with the direction given by this Court vide order dated 15th January, 2018 and taking overall view of the matter, we are of the opinion that interest of justice would be subserved if the order regarding simple imprisonment of three months is modified and in lieu thereof, additional compensation amount of Rs. 1,00,000/- (Rupees One Lac only), already deposited by the Appellant before the Trial Court, is directed to be made over to Respondent No. 2. In other words, Respondent No. 2 is free to withdraw the additional compensation amount of Rs. 1,00,000/- (Rupees One Lac only) already deposited by the Appellant before the Trial Court. This amount be paid to Respondent No. 2 subject to verification of his identity.

9. We are conscious of the fact that Respondent No. 2 (Complainant) has not appeared before this Court, but the order which we propose to pass is to his advantage and, in all probability, the same would be acceptable to him. We make it clear that if Respondent No. 2-original Complainant is not satisfied with this order, he will be free to apply for recall of the same, which request can be considered appropriately.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 271 of 2018 (Arising out of SLP (Crl.) No. 57 of 2013)

Decided On: 19.02.2018

 P. Ramadas Vs. State of Kerala and Ors.

Hon'ble Judges/Coram:

Dipak Misra, C.J.I., A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ.

Citation: (2018) 3 SCC 287,2018(6) MHLJ 945

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When it is not permissible for court to substitute fine in place of imprisonment?

 In this context and factual background, two points arise for consideration, viz.:

(i) Whether the High Court was permitted, in law, to do away with the punishment of imprisonment altogether and substitutes the same with fine alone?

(ii) Whether the circumstances pleaded by the Respondent were so mitigating that punishment of fine alone could be justified?

14. Coming to the first question, as can be seen from the language of Sections 307, 328 and 392 of Indian Penal Code, all these Sections provide for imprisonment 'and' fine. In fact, after specifying particular term of imprisonment, all these Sections use the words 'and shall also be liable to fine'. This expression came up for consideration in Zunjarrao Bhikaji Nagarkar v. Union of India and Ors. MANU/SC/0453/1999 : (1999) 7 SCC 409 and the Court explained that in such circumstances, it is imperative to impose both the sentences i.e. imprisonment as well as fine. Thus, there has to be punishment of imprisonment in respect of these offences, and in addition, the convict is also liable to pay fine. Therefore, awarding the punishment of imprisonment is a must and there cannot be a situation where no imprisonment is imposed at all. The High Court was, therefore, clearly wrong in not inflicting a sentence of imprisonment, by modifying the sentence awarded by the trial court and obliterating the sentence of imprisonment altogether. Thus, the very approach of the High Court in substituting the sentence by fine alone is impermissible in law.

15. Section 386 of the Code of Criminal Procedure enlists the powers of the appellate court while hearing the appeals from the trial court. In an appeal from conviction, if the conviction is maintained, the appellate court has the power to alter the nature or the extent, or the nature and extent, of the sentence (though it cannot enhance the same). However, such a power has to be exercised in terms of the provisions of Indian Penal Code etc. for which the Accused has been convicted. Power to alter the sentence would not extend to exercising the powers contrary to law. It clearly follows that the High Court committed a legal error in doing away with the sentence of imprisonment altogether.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 667 of 2017 (Arising out of SLP (Crl.) No. 8983 of 2012

Decided On: 10.04.2017

State of Himachal Pradesh Vs. Nirmala Devi

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Whether any sentence of imprisonment in default of fine can be made to run concurrently?

Any sentence of imprisonment in default of fine has to be in
excess of, and not concurrent with, any other sentence of
imprisonment to which the convict may have been sentenced.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2387 OF 2014
(Arising out of SLP (Crl.) No. 2487/2014)

O.M. CHERIAN @ THANKACHAN Vs STATE OF KERALA & ORS.

Citation;(2015) 2 SCC501

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