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.
2. 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.
3. In the present case, the facts are that the complainant
approached the Magistrate under Section 138 of the Negotiable
Instruments Act in a transaction where the accused had borrowed a
sum of Rs.2.75 lakh from the complainant. When the complainant
demanded the amount, the accused issued a cheque for the said
amount which was returned as dishonoured due to insufficiency of
funds. The requisite demand notice was sent by the complainant to
the accused followed by the complaint. Ultimately, the accused was
found guilty of the offence under Section 138, and was convicted,
stating:
“Considering the fact that this is an offence u/s 138 of the
Negotiable Instruments Act I do not consider this to be a
fit case to be proceeded under the Probation of Offenders
Act. I am of the view that simple imprisonment for 4
months for the offence u/s 138 of the Negotiable
Instruments Act would meet the ends of justice. The
accused is further directed to pay a compensation of
Rs.2,75,000/- to the complainant u/s 357(3) of Cr.P.C. In
default of payment of compensation, he shall undergo
simple imprisonment for 1 month.”
4. The accused challenged the aforesaid judgment before the
Court of Sessions, and the Appellate Court, by an order dated 27th
April, 2006, confirmed the conviction, but reduced the sentence to
imprisonment till rising of the Court. The order to pay compensation
with the default clause was, however, sustained. The accused
underwent imprisonment till the rising of the Court and also
underwent the default sentence for non-payment of compensation.
The second respondent filed CMP No.2018 of 2008 before the
learned Judicial Magistrate under Section 421 of the Criminal
Procedure Code for realising compensation by issuing a distress
warrant against the accused. This CMP was allowed on 19th July,
2008, and a distress warrant for the realisation of compensation was
issued. A recalling petition filed by the accused was dismissed on
29th March, 2011. The High Court, by the impugned judgment dated
8
th 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.
5. Shri Siddharth Dave, learned counsel appearing on behalf of
the Appellant, has argued before us that an accused who is directed
to pay fine, or undergo sentence of which fine forms a part, and from
which compensation is to be paid, then a court would proceed against
the accused in the manner provided under Section 421 even though
he may have undergone the default sentence awarded to him.
However, if the sentence is of fine or sentence of which fine forms a
part and there is no order of payment of compensation from the fine
imposed, the court would have to record special reasons in writing
before proceeding against the accused under Section 421. Likewise,
compensation under Section 357(3) would be covered by the proviso
if the accused has undergone the default sentence awarded and
special reasons in writing would have to be recorded before action
under Section 421 can be initiated. As in the present case, at the time
of issuance of warrant, the Magistrate did not record special reasons
in writing for proceeding against the accused person, the Division
Bench judgment ought to be set aside.
6. Shri C.K. Sasi, learned counsel for the Respondent, has
repelled the above submissions. According to the learned counsel,
by operation of the deeming fiction contained in Section 431 Cr.P.C.
compensation can be realized even if the accused had undergone the
default sentence. The exception provided in the proviso to Section
421 is to achieve the object of payment of compensation to the victim
of the offence. According to learned counsel, the purpose of Section
421 being victim compensation, the provision must be liberally
construed to meet the ends of justice. This being so, the Division
Bench judgment cannot be faulted on any score.
7. Having heard learned counsel for the parties, it is important to
set out all the relevant statutory provisions. Section 357 Cr.P.C.
reads as under:
“357. Order to pay compensation. (1) When a Court
imposes a sentence of fine or a sentence (including a
sentence of death) of which fine forms a part, the Court
may, when passing judgment, order the whole or any part
of the fine recovered to be applied-
(a) in defraying the expenses properly incurred in the
prosecution;
(b) in the payment to any person of compensation for any
loss or injury caused by the offence, when compensation
is, in the opinion of the Court, recoverable by such person
in a Civil Court;
(c) when any person is convicted of any offence for
having caused the death of another person or of having
abetted the commission of such an offence, in paying
compensation to the persons who are, under the Fatal
Accidents Act, 1855 (13 of1855), entitled to recover
damages from the person sentenced for the loss resulting
to them from such death ;
(d) when any person is convicted of any offence which
includes theft, criminal misappropriation, criminal breach
of trust, or cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in disposing of,
stolen property knowing or having reason to believe the
same to be stolen, in compensating any bona fide
purchaser of such property for the loss of the same if
such property is restored to the possession of the person
entitled thereto.
(2) If the fine is imposed in a case which is subject to
appeal, no such payment shall be made before the period
allowed for presenting the appeal has elapsed, or, if an
appeal be presented, before the decision of the appeal.
(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.
(4) An order under this section may also be made by an
Appellate Court or by the High Court or Court of Session
when exercising its powers of revision.
(5) At the time of awarding compensation in any
subsequent civil suit relating to the same matter, the
Court shall take into account any sum paid or recovered
as compensation under this section.”
It is important to note that sub-section (3) is a new provision
which did not exist in the old Criminal Procedure Code.
8. The predecessor to Section 421 was Section 386 of the Code
of Criminal Procedure, 1898, which reads as follows :
“386. Warrant for levy of fine.(1) Whenever 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 by execution
according to civil process against 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 to do so.
(2) The Government may make rules regulating the
manner in which warrants under sub-section (1), clause
(a), 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 Courts issue a warrant to the Collector
under sub-section (1), Clause (b), such warrant shall be
deemed to be a decree, and the Collector to be the
decree-holder, within the meaning of the Code of Civil
Procedure, 1908, and the nearest Civil Court by which
any decree for a like amount could be executed shall, for
the purposes of the said Code, be deemed to be the
Court which passed the Decree, and all the provisions of
that Code as to execution of decrees shall apply
accordingly:
Provided that no such warrant shall be executed by the
arrest or detention in prison of the offender.”
9. Section 421 of the present Code reads as follows :
“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 sub-section (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.”
10. It may be noticed that the last part of the proviso to sub-section
(1), namely, “or unless it has made an order for the payment of
expenses or compensation out of the fine under Section 357” has
been added to the proviso for the first time. This was done pursuant
to the 41st Law Commission Report, which will be referred to a little
later.
11. The third important provision in the Code of Criminal Procedure
is Section 431, which reads as follows:
“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.”
From this provision, it is clear that a deeming fiction is enacted,
viz., that any money other than a fine, (which would include
compensation payable under Section 357(3) Cr.P.C.) the method of
recovery of which is not expressly provided for, shall be recoverable
as if it was a fine. One of the bones of contention in these appeals is
the effect of the deeming fiction under Section 431.
12. Section 53 of the Indian Penal Code speaks of punishment to
which offenders are liable under the provisions of the Code. Suffice it
to say that fine is one of them, but compensation payable is not.
13. Also contained in Chapter III of the Penal Code which is
headed “OF PUNISHMENTS” are the provisions of Sections 64 to 70.
Section 64 recognises that it shall be competent to the Court which
sentences an offender to state that, in default of payment of a fine,
the offender shall suffer imprisonment. Section 65 sets the limit to
which such imprisonment can go. Section 68 is important and reads
as follows :
“68. Imprisonment to terminate on payment of fine.-
The imprisonment which is imposed in default of payment
of a fine shall terminate whenever that fine is either paid
or levied by process of law.”
Section 70, which is almost determinative of the point that has
been argued in these appeals, reads as follows:
“70. Fine leviable within six years, or during
imprisonment – Death not to discharge property from
liability.--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.”
14. It is important at this juncture to deal with some of the
judgments of the High Courts.
15. An early judgment of the Bombay High Court dealt with what
were “special reasons” for the purpose of the proviso to Section
386(1) under the old Code. A Division Bench of the said High Court
in Digamber Kashinath Bhavarthi v. Emperor, AIR 1935 Bom 160:
11Page 12
ILR LIX Bom 350, dealt with the proviso to Section 386(1) in the
following terms:
“On June 30, 1934, the applicant was Released from jail,
having served not only his substantive sentence, but also
the sentence imposed upon him in default of payment of
the fine, and he now asks that the warrant for the
recovery of the fine issued against him should be
withdrawn, and in support of his contention he relies on
the proviso to section 386(1). That proviso provides 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 a warrant under the section unless for
special reasons to be recorded in writing it considers it
necessary to do so. The proviso applies in terms only to
the issue of a fresh warrant and does not require the
withdrawal of a warrant already issued before expiration
of the sentence in default of payment. But, I think that, in
dealing with such existing warrants, the Court should
follow the policy which seems to have inspired the proviso
to section 386. That policy appears to be that in general
an offender ought not to be required both to pay the fine
and to serve the sentence in default. But the proviso
enables a warrant to be issued for recovery of the fine,
even if the whole sentence in default has been served, if
the Court considers that there are special reasons for
issuing the warrant. I apprehend that the special reasons
should be reasons accounting for the fact that the fine has
not been recovered before the sentence in default has
been served, and any reasons which are directed to that
point would be relevant. It may be that the authorities,
through no negligence on their part, did not know of the
existence of the property or the accused may have
inherited property after he served his sentence in default;
or there may not have been time to execute the warrant.
Matters of that sort would all be special reasons for
issuing a warrant after the sentence in default had been
served; and I think, in the same way, they are reasons
justifying the Court in refusing to withdraw a warrant
already issued. In the present case, in my opinion, there
are special reasons, though not quite those which were
recorded by the Judge. I think that a special reason for
not withdrawing the warrant is that before the sentence in
default had been served the authorities had taken steps
to enforce this warrant by levying execution, upon the
immoveable property of the applicant, and the delay
which has taken place is not, in my opinion, shown to be
due to any default on the part of the authorities. The
learned Judge himself gave as his reasons for not
withdrawing the warrant that the offence was a serious
one, and the complainant had been allotted part of the
fine. In my view, reasons of that sort are not relevant
because they do not account for the fine not having been
recovered before the service of the sentence in default.
For these reasons, I think the application must be
refused.”
16. This judgment was followed in Brahameshwar Prasad Sinha
v. State of Bihar, 1983 Cri LJ 8 by a Division Bench of the Patna
High Court, in which the Patna High Court held as follows :
“In Digamber Kashinath Bhavarthi v. Emperor (AIR 1935
Bom 160) : (1935-36 Cri LJ 1034) the Bombay High Court
pointed out that special reasons mentioned in S. 386 of
the old Code should be reasons accounting for the fact
that the fine had not been recovered from the convict
before the sentence in default had been served out and
any reasons which are directed to that point would be
relevant applying that test, I am unable to say that the
reasons-given by the learned Sessions Judge is not
relevant. It must be pointed that, that the discretion is of
13Page 14
the learned Sessions Judge and sitting in revision it may
not be interfered with lightly.”
17. A Single Judge of the Allahabad High Court in Parasnath v.
State AIR 1969 All 116 held as follows :
“There is no provision in the Indian Penal Code like Sec.
68 providing that, on the undergoing of the whole period
of imprisonment, the fine shall not be recoverable. The
procedure for recovery of such fines is provided for in
Sec. 386 of the Code of Criminal Procedure. Sub-sec. (1)
of Sec. 386, Cr. P.C. which is relevant, provides:
“386(1)—Whenever 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 by execution
according to civil process against 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 to
do so.”
The absence of any specific provision to the effect that
the fine shall not be realisable if the whole of the period of
imprisonment for default has been undergone and the
language of the proviso to sub-sec. (1) of Sec. 386, Cr.
P.C. lead to the conclusion that the undergoing of
imprisonment awarded in default of payment of the fine
does not operate as a discharge or satisfaction of the fine
which may nevertheless be levied in the manner
prescribed by Sec. 386(1), Cr. P.C.”
18. A Single Judge of the Kerala High Court in Saji Kumar vs.
Soman Pillai, 2006 (3)KLT 679, set out Section 421 of the Code of
Criminal Procedure and held that the fiction contained in Section 431
Cr.P.C. must be extended logically until its object is accomplished. A
non-fine must be deemed to be a fine for the purpose of recovery,
and until recovery is complete, the fiction must continue. Having so
held, the learned Judge stated that the proviso to Section 421(1)
would apply not merely to Section 357(1), but also to Section 357(3)
and this being so, held that despite the fact that the default sentence
had been undergone, compensation under Section 357(3) is
recoverable. The impugned judgment before us of the same High
Court approved of the conclusion of the aforesaid judgment, but with
completely different reasoning. According to the Division Bench,
“compensation” is not a “sentence” and this being the case, would not
be covered by the proviso to Section 421(1). This would make it clear
that since compensation is otherwise recoverable, despite the default
sentence having been undergone, ultimately, a warrant can be issued
under the first part of Section 421(1).
19. At this stage, it is important to refer to a few judgments of
various High Courts on the reach of Section 70 of the Penal Code. In
Kirpa Ram v. Emperor AIR 1914 Lahore 539, a Division Bench of
the Lahore High Court adverted to Section 70 of the Penal Code and
added that a fine can be collected even after the imprisonment
awarded in default has been undergone.
20. In Collector of Broach and Panchmahals v. Ochhavlal
Bhikalal, AIR 1941 Bom 158, a Division Bench of the Bombay High
Court held that Section 386 of the Cr.P.C. (i.e. the predecessor
Section to Section 421 of the present Code) relates only to
procedure, whereas the substantive law as to payment of fine is
contained in Section 70 of the Penal Code. This being the case, it
was held that the limitation period of six years from the date of the
sentence barred the darkhast that was presented in that case.
16Page 17
21. In State v. Krishna Pillai, AIR 1953 Travancore-Cochin 233,
the law was stated thus:
“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,
Penal Code (S. 53, Travancore Code) only states that it
shall be competent to the court to impose a sentence of
imprisonment for non-payment 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 a
discharge or satisfaction of the fine, but is imposed as a
punishment for nonpayment. The fine would remain alive
for collection for six years after the passing of the
sentence. Assuming the accused counter-petitioner has
no means now to pay the same, it can be recovered from
any property acquired by him within the period specified.
Even his death will not discharge from the liability any
property which would, after his death be legally liable for
his debts. (Section 70, Penal Code, corresponding to S.
59, Travancore Penal Code).”
22. In K. Vemmana Shenoy v. Collector of South Kanara, AIR
1964 Mys. 64, a Single Judge of that High Court adverted to the
amending Act of 1923, by which a substantial change was made to
Section 386 of the Cr.P.C., which made it clear that the offender
should not be made to pay fine as well as undergo imprisonment in
default of payment of the fine in the absence of special reasons to be
recorded in writing. The learned Single Judge held that Section 70
IPC read with Section 386(1) proviso would necessarily lead to the
conclusion that in the absence of special reasons to be recorded in
writing, the fine cannot be recovered after the offender has
undergone imprisonment in default of payment.
23. 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.
We recommend that the proviso to section 386(1) should
make this clear.”
24. Following paragraph 28.10, the words “or unless it made an
order for the payment of expenses or compensation out of the fine
under Section 357” was added to the proviso which was contained in
old Section 386(1) and continued in Section 421(1).
25. At this juncture, it is important to note that in Vijayan v.
Sadanandan K. (2009) 6 SCC 652, this Court held :
“29. To appreciate the said legal position, the provisions
of Section 431 are set out hereinbelow:
“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.”
Section 431 makes it clear that any money other than a
fine payable on account of an order passed under the
Code shall be recoverable as if it were a fine which takes
us to Section 64 IPC.
30. Section 64 IPC 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. For
the sake of reference, Section 64 IPC is set out
hereinbelow:
“64. 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.”
31. The provisions of Sections 357(3) and 431 CrPC,
when read with Section 64 IPC, empower the court, while
making an order for payment of compensation, to also
include a default sentence in case of non-payment of the
same.”
26. This statement of the law was reiterated in R. Mohan v. A.K.
Vijaya Kumar, (2012) 8 SCC 721 (see paras 26 to 29).
27. 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).
28. As is well known, a legal fiction is not to be extended beyond
the purpose for which it is created or beyond the language of the
section by which it is created. For example, see Prakash H. Jain v.
Marie Fernandes, (2003) 8 SCC 431 at 438. However, once the
purpose of the legal fiction is ascertained, full effect must be given,
and it should be carried to its logical conclusion. This is clear from the
celebrated passage in East End Dwelling Co. Ltd. v. Finsbury
Borough Council, 1951 (2) All ER 587 at 589:
“if you are bidden to treat an imaginary state of affairs as
real, you must surely, unless prohibited from doing so,
also imagine as real the consequences and incidents
which, if the putative state of affairs had in fact existed,
must inevitably have flowed from or accompanied it. One
of those in this case is emancipation from the 1939 level
of rents. The statute says that you must imagine a certain
state of affairs; it does not say that having done so, you
must cause or permit your imagination to boggle when it
comes to the inevitable corollaries of that state of affairs”.
29. The legal fiction enacted under Section 431 is not limited to “the
purpose of this Act” unlike Section 6A of the Central Sales Tax Act, as
was the case in Ashok Leyland Limited v. State of Tamil Nadu,
(2004) 3 SCC 1 at para 32,76. Thus it is clear that the object of the
legal fiction created by Section 431 is to extend for the purpose of
recovery of compensation until such recovery is completed - and this
would necessarily take us not only to Section 421 of the Cr.P.C. but
also to Section 70 of the Penal Code, a companion criminal statute,
as has been held above.
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.
………………………………..J.
(R.F. NARIMAN)
….…………………………… J.
(NAVIN SINHA)
New Delhi;
May 5, 2017.
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