LAW AND POVERTY PROJECT

IMPRISONMENT IN DEFAULT OF FINE

Submitted by: Mansi Khanna 2nd Year, 4th semester B.A LL.B (H), JMI

TABLE OF CONTENTS

1. Sentencing for Default of Payment of Compensation in Criminal Cases: The Law .. 4 2. Abstract .. 10 3. Have a heart for poor offenders: Supreme Court. 10 4. Leading English Case: English Law: Alternatives For Imprisonment In Default Of Fine 12 5. Some Recent Judgements of Supreme Court.................................. 14 6. Bibliography .. 16

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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my Law and Poverty Professor Dr. Ghulam Yazdani for his exemplary guidance, monitoring and constant encouragement throughout the course of this assignment. The blessings, help and guidance given by her time to time shall carry me a long way in the journey of life which I am about to embark.

Lastly, I thank almighty, my parents, brother, sister and friends for their continuous encouragement without which this assignment could not be possible.

MANSI KHANNA

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Sentencing for Default of Payment of Compensation in Criminal Cases : The Law

The Supreme Court in R. Mohan V. A.K. Vijaya Kumar 1has examined whether the court can award a sentence in default of payment of compensation in view of the fact that the Code of Criminal Procedure does not provide for any such eventuality. While examining the relevant provisions, the Supreme Court held as under;

That takes us to the legal question whether the court can award a sentence in default of payment of compensation. Under Section 357 of the Code the Court can pass order to pay compensation. Sub-Section (1) of Section 357 of the Code empowers the court to award compensation to the victim of offence out of the sentence of fine imposed on the accused. Section 357(3) is relevant. It reads thus: 357. Order to pay compensation. (1) xxx xxx xxx (2) xxx xxx xxx (3) 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. Thus, if a fine is not a part of the order of sentence, the court may order the accused to pay compensation to the person who has suffered any loss or injury because of the act of the accused for which he is sentenced. In Hari Singh v. Sukhbir Singh & Ors. 2, the accused were convicted and sentenced under Section 325 read with Section 149, Section 323 read with Section 149 and Section 148 of the IPC. They were released on probation of good conduct. Each of them was ordered to pay compensation of Rs.2,500/- to the injured. In default of payment of compensation, they were directed to serve their sentence. This court inter alia considered whether
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(2012) 8 SCC 721 (1988) 4 SCC 551

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the compensation awarded to the injured could be legally sustained. This court observed that the power of the court under Section 357(3) to award compensation is not ancillary to other sentences, but it is in addition thereto and is intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. This court further observed that it is a measure of responding appropriately to crime as well as of reconciling the victim with the offender. Describing it as a constructive approach to crime, this court recommended to all courts to exercise this power liberally so as to meet the ends of justice in a better way. It was clarified that the order to pay compensation may be enforced by awarding sentence in default. The relevant observations of this court may be advantageously quoted. 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. While dealing with a case under Section 138 of the said Act in Suganthi Suresh Kumar, relying on Hari Singh, this court reiterated the same view and held that the court can impose a sentence of imprisonment on the accused in default of payment of compensation ordered under Section 357(3) of the Code.

Undoubtedly, there is no specific provision in the Code which enables the court to sentence a person who commits breach of the order of payment of compensation. Section 421 of the Code provides for the action which the court can take for the recovery of the fine where the accused has been sentenced to pay a fine. Proviso thereto states how to deal with a situation where default sentence is prescribed. Section 421 reads thus:

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421. Warrant for levy of fine. (1) When an offender has been sentenced to pay a fine, the court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may (a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter: Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under Section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the court issues a warrant to the Collector under clause (b) of subsection (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. Section 431 of the Code provides for recovery of any money (other than a fine) payable by virtue of any order made under the Code and the recovery of which is not otherwise expressly provided for. Compensation awarded by a court can fall in this category. Section 431 says that such money shall be recoverable as if it were a fine. Section 431 of the Code reads thus:
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431. Money ordered to be paid recoverable as fine.Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that Section 421 shall, in its application to an order under Section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of Section 421, after the words and figures under Section 357, the words and figures or an order for payment of costs under Section 359 had been inserted. Thus, one has to again fall back on section 421 of the Code for recovery of compensation directed to be paid by the court. For the purpose of mode of recovery, compensation is put on par with fine (See K.A. Abbas HSA.) 15. Section 64 of the IPC also needs to be quoted because it provides for sentence of imprisonment for non-payment of fine. It reads thus: Sentence of imprisonment for non-payment of fine.In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, 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, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence. The above provisions were examined by this Court in Vijayan v. Sadanandan K. & Anr. 3 After quoting them, this Court rejected the submission that where there is default in payment of compensation ordered by the court, recourse can only be had to Section 421 of the Code because there is no provision enabling the court to award a default sentence. This Court observed that if such a view is taken, the very object of sub-section (3) of Section 357 would be frustrated and the relief contemplated therein would be rendered somewhat illusory.

(2009) 6 SCC 652

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We respectfully concur with this view. In K. Bhaskaran v. Sankaran Vaidhyan Balan 4 while considering Section 357 (3) of the Code this Court expressed that if the Judicial Magistrate of the First Class were to order compensation to be paid to the complainant from out of the fine realised the complainant will be the loser when the cheque amount exceeded the said limit. In such a case a complainant would get only the maximum amount of rupees five thousand because Judicial Magistrate First Class can as per Section 29 (2) of the Code pass a sentence of imprisonment for a term not exceeding three years, or of fine not exceeding Rs. 5,000/-, or of both (the said amount is now increased to Rs. 10,000/-). This Court clarified that in such cases the Magistrate can alleviate the grievance of the complainant by taking resort to Section 357(3) of the Code.

The idea behind directing the accused to pay compensation to the complainant is to give him immediate relief so as to alleviate his grievance. In terms of Section 357(3) compensation is awarded for the loss or injury suffered by the person due to the act of the accused for which he is sentenced. If merely an order, directing compensation, is passed, it would be totally ineffective. It could be an order without any deterrence or apprehension of immediate adverse consequences in case of its non- observance. The whole purpose of giving relief to the complainant under Section 357(3) of the Code would be frustrated if he is driven to take recourse to Section 421 of the Code. Order under Section 357 (3) must have potentiality to secure its observance. Deterrence can only be infused into the order by providing for a default sentence. If Section 421 of the Code puts compensation ordered to be paid by the court on par with fine so far as mode of recovery is concerned, then there is no reason why the court cannot impose a sentence in default of payment of compensation as it can be done in case of default in payment of fine under Section 64 of the IPC. It is obvious that in view of this, in Vijayan, this court stated that the above mentioned provisions enabled the court to impose a sentence in default of payment of compensation and rejected the submission that the recourse can only be had to Section 421 of the Code for enforcing the order of compensation. Pertinently, it was made clear that observations made by this Court in Hari Singh are as important today as they were when they were made. The
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(1997) 7 SCC 510

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conclusion, therefore, is that the order to pay compensation may be enforced by awarding sentence in default.

In view of the above, we find no illegality in the order passed by the learned Magistrate and confirmed by the Sessions Court in awarding sentence in default of payment of compensation. The High Court was in error in setting aside the sentence imposed in default of payment of compensation.

Donatus Tony Ikwanusi vs The Investigating Officer5 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.

2013 CR L J 1938 Madras (FB)

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Abstract: Imposition of fine as an alternative to imprisonment is every defence lawyers' delight and a human rights' activist's vision for a just criminal justice system. Then perhaps it is ironical to argue that this regime is leading to violation of right to fair trial. The Indian criminal justice system incorporated this concept of imposition of fines through a series of criminal justice reforms but only theoretically. The argument finds manifestation in the adoption of a penological practice mandating imposition of fine in addition to imprisonment for around one hundred and fifty offenses. The interesting part is that the offender is expected to pay fine while still being incarcerated in jail and in default of payment of fine; undergo a further sentence. This paper argues that such a regimen seeks to violate the right to fair trial by creating different sentencing regimes for the rich and the poor and denying equal access to justice.

Have a heart for poor offenders: Supreme Court6

NEW DELHI: The Supreme Court has frowned upon the sentencing system which forces poor petty offenders to remain in jail even after serving their sentence because of their inability to pay the fine imposed on them along with the period of imprisonment. "Have a heart for poor petty offenders" was the message sent out by a bench of Justices P Sathasivam and Ranjan Gogoi when it ruled on Friday that trial courts should use their discretion and not impose hefty fines as defaulting in payment of the fine entailed additional long period of incarceration. "Where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases," said Justice Sathasivam, who authored the judgment. The bench ruled that imprisonment for defaulting payment of fine was not a sentence. "To put it clear, it is a penalty which a person incurs on

Dhananjay Mahapatra, TNN | Oct 7, 2012, 05.09AM IST

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account

of

non-payment

of

fine,"

it

said.

"On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing," the bench said. Advising the trial courts not to impose "harsh or excessive" fines, the bench said, "It is the duty of the court to keep in view the nature of the offence, circumstances in which it was committed, the position of the offender and the other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine." The court probably had in mind the pitiable condition of the poor prisoners who had no means to foot the fine and prefer to undergo the additional sentence specified for non-payment of the penalty. Over seven lakh under-trial prisoners facing charges in petty cases were released on personal bail bonds in two years from 2009 after then law minister Veerappa Moily worked hard to convince most of them were facing bailable offences but were not released because they had no means to furnish bail bond. In several cases, the under-trial prisoners had served a term which was the maximum sentence that could have been imposed if s/he were found guilty at the end of the trial. The bench relaxed the prison term in default of payment of fine in a case under Narcotic Drugs and Psychotropic Substances (Prohibition) Act, where two people in Gujarat were handed out 15-year imprisonment and a fine of Rs 1.5 lakh.

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LEADING ENGLSH CASE: ENGLISH LAW: ALTERNATIVES FOR IMPRISONMENT IN DEFAULT OF FINE R. v. Wu7 The accused was convicted of possession of 300 cartons of contraband cigarettes. Section 240(1.1)(a)(i) of the Excise Act carried a minimum penalty of $0.16 per cigarette, which amounted to $9,600. The trial judge concluded that the accused was not now and would not in the foreseeable future be able to pay such a heavy fine. The trial judge was also of the view that imprisonment for any length of time would not be a fit sentence in this case. He said he was satisfied that, but for the minimum fine provisions [in the Excise Act], this would be a case for a suspended sentence. In the absence of a regime in Ontario permitting offenders to work off the fines, and believing that incarceration of the accused in default of paying the fine would not be just, he concluded that a conditional sentence would be appropriate.

Per McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. The purpose of imposing imprisonment in default of payment is to give serious encouragement to offenders with the means to pay a fine to make payment. Genuine inability to pay a fine is not a proper basis for imprisonment. A conditional sentence is a form of imprisonment. Unless, in the terms of s. 734.7(1), the Crown can establish that such a defaulter has without reasonable excuse, refused to pay, a warrant of committal should not be issued.

If an offender does not have the means to pay a fine immediately, he or she should be given a reasonable time to pay. The offender may also be eligible for provincial fine option programs in which the fine may be discharged in whole or in part by earning credits for work performed during a period not greater than two years (s. 736). In the event of default, the Crown can resort to a number of
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[2003] 3 S.C.R. 530, 2003 SCC 73

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civil remedies such as suspending licences or other instruments until the fine is paid in full or registering the fine owing with the civil courts. The option of jail for default is fenced in with important restrictions. A fine default is not punishable by committal unless the other statutory remedies, including licence suspensions and civil proceedings, are not appropriate in the circumstances (s. 734.7(1)(b)(i)), or the offender has, without reasonable excuse, refused to pay the fine or discharge it under s. 736 (s. 734.7(1)(b)(ii)). Where the offenders reasonable excuse for failure to pay a fine is simple poverty, it is not open to a court to jail him or her under s. 734.7(1)(b)(i). Here, a functioning fine option program was not available in Ontario and there was no evidence as to what, if any, federal permits or licences were held by the accused. It cannot be assumed that the financial circumstances of an offender at the date of the sentencing will necessarily continue into the future. An immediate committal order should only be made in exceptional circumstances, which did not exist here. The facts were simply that the accused was on welfare and lacked the ability to pay. An offenders inability to pay is precisely the reason why time is allowed, not a reason why it should be altogether denied. While it would have been appropriate to impose the minimum fine plus time to pay plus 30 days in jail in default of payment, the trial judge erred in jumping directly from imposition to committal without passing through the intermediate stages of alternative collection procedures, default, and, only if the Crown thinks it has grounds to proceed, a s. 734.7(1) committal hearing.

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SOME RECENT JUDGEMENTS OF SUPREME COURT Parkash v. State 8: The prosecution case is that on 19.8.2004 at about 12 noon the two appellants along with three other persons, who could not be arrested by the police, robbed Parmanand and Pradeep at their work-place. While robbing them one of the appellants had used a pistol and the other one had used a knife. The learned trial Court held the appellants guilty for the commission of offence punishable under Section 397 IPC and vide order dated 2nd June, 2005 both of them were sentenced to rigorous imprisonment for seven years and fine of Rs. 10,000/-. In default of payment of fine, the appellants were ordered to undergo further rigorous imprisonment for two years. It was submitted that considering the fact that robbery was of a very small amount the sentence of fine of Rs. 10,000/- was very harsh and more harsh was the period of rigorous imprisonment fixed in case of default of payment of fine because the appellants, who are poor persons, under no circumstances could pay such a huge amount of fine and, thus, because of their poverty they would have to remain in jail for two years even after serving out full period of substantive sentence of imprisonment. Delhi High Court modified the order to the extent that the fine to be paid by the two appellants shall be Rs. 1,000/- each and in default of payment they will have to undergo further imprisonment for a period of three months.

Bavo @ Manubhai Ambalal Thakore vs State Of Gujarat 9: The appellant herein took Smita to a doctor at about 10:00 a.m. and at about 11:30 a.m. she returned home alone limping and crying. When the complainant asked her daughter as to what had happened, she narrated the whole incident that how the appellant herein over-powered her and the Complainant finally came to know that he has committed rape on her daughter which was also evident from her condition.
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12th January, 2010 (2012) 2 SCC 684

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The Addl. Sessions Judge, convicted the appellant for the offence punishable under Sections 376 and 506(2) of the Indian Penal Code, 1860 and sentenced him to undergo imprisonment for life with a fine of Rs.20,000/-, in default, to further undergo RI for three years. The only question to be considered is whether the sentence of life imprisonment and a fine of Rs.20,000/- is reasonable or excessive. In view of the above discussion, the conviction imposed on the appellant herein is confirmed. However, the sentence of life imprisonment is modified to RI for 10 years with a fine of Rs.1, 000/-, in default, to further undergo RI for one month, that the accused hails from a poor family and was working as an agricultural labourer and is not in a position to pay such a huge amount as fine which is not disputed by the State.

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BIBLIOGRAPHY

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2108/index.do http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/CourtRuleFile_ JBQUAEVC.PDF http://timesofindia.indiatimes.com/india/Have-a-heart-for-poor-offendersSupreme-Court/articleshow/16705883.cms http://supremecourtofindia.nic.in/scr/2012_v7_pi.pdf http://indiankanoon.org http://www.legalblog.in/2012/07/sentencing-for-default-of-paymentof.html#sthash.noVJYavL.dpuf

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