Madappen Muhassin vs State of Kerala

B. Kemal Pasha, J. -

"Is it imperative to impose a default sentence together with a sentence of fine?"

The appellant is the accused in Sessions Case No.17/2001 of the 3rd Additional Session�s Court, Thrissur. Even though he was indicted for the offence under Section 302 of the Indian Penal Code, he was found guilty of the offence under Section 325 of Indian Penal Code only, and convicted thereunder. The court below imposed a sentence of rigorous imprisonment for four years for the offence under Section 325 of the Indian Penal Code. The matter was taken up in appeal.

2-3. This Court considered the matter in Crl. Appeal No.838/2002, and confirmed the conviction under Section 325 of the Indian Penal Code and modified the sentence by reducing the substantive sentence of imprisonment to one year and imposed a fine of Rs. 25,000/- vide judgment dated 25.5.2009. It is also ordered that the fine amount if realised, be disbursed to the legal representatives of the deceased under Section 357(1) of Code of Criminal Procedure. At the same time, this Court has not imposed any default sentence with regard to the sentence of fine.

The Superintendent of the Central Prison & Correction Home, Viyyur has sought for a clarification as to whether any default sentence has to be imposed in respect of the sentence of fine.

Heard the learned Counsel for the appellant and the learned Public Prosecutor.

Section 64 of Indian Penal Code says:

"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 fora certain term, in 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".

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 Section 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.

I am fortified by the decision of the Division Bench of this Court in State v. Krishna Pillai Madhavan Pillai (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. Section 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".

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.

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 Section 428 of the Code of Criminal Procedure as against such default sentence.

The aforesaid aspects has been considered by the Apex Court in Vijayan v. Sadanandan K. & Anr. (2009) 6 SCC 652), wherein it was held in paragraph 30 that Section 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.

In Shahejadkhan Mahebubkhan Pathan v. State of Gujarat ((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.