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TMI Blog2017 (5) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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). 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. However, once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 8th 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 compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, 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 reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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