M. PUSHPANATHEN MARIMUTHU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE Deputy Registrar High Court, Appellate Side, has placed before us certain matters with his report, dated February 21, 1977, seeking directions regarding the practice to be followed on the returns in such matters.

(2.) THE Criminal Department of the Appellate Side of this Court, noticed that in these matters while returning the final writs in criminal cases to this Court, the reports of the lower Courts are generally silent as regards the recovery of the fine from the accused persons, where the accused undergo the imprisonment in default of payment of fine, although the Courts have the power and the duty to decide whether the fine should be recovered under Section 70 of the Indian Penal Code, and hence the above report was placed before the Court for directions with report to the unexecuted writs and for modification or otherwise of instructions in the 'Criminal Manual'.

(3.) 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 peculiary 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. What we recommend is, that at any time during a certain limited period the fine may be levied on his effects by distress. If the fine is paid or levied while he is imprisoned for default of payment his imprisonment will immediately terminate, and if a portion of the fine be paid during the imprisonment, proportional abatement of the imprisonment will take place. It may perhaps appear to some persons harsh to imprison a man for non -payment of a fine, and, after he has endured Ms imprisonment, to take his property by distress in order to realize the fine. But this harshness is rather apparent than real, if the offender, having the means of paying the fine, chooses rather to lie in prison than to part with his money, his case is the very case in which it is most desirable that the fine should be levied, and he is the very convict who has least claim to indulgence. The confinement which he has undergone may be regarded as no more than a reasonable punishment for his obstinate resistance to the due execution of his sentence. If the offender has not the means of paying the fine while he continues liable to it, he will be quit for his imprisonment. There remains another case; that of an offender who, being really unable to pay his fine, lies in prison for a term, and within six years after his sentence acquires property. This case is the only case in which it can, with any plausibility, be maintained that the law, as we have framed it, would operate harshly. Even in this case, it is evident that our law will operate far less harshly than a law which should provide that an offender sentenced to a fine should be imprisoned till the fine should be paid. Under both laws imprisonment is inflicted, under both a fine is exacted. But the one law liberates the offender on payment of the fine, and also fixes a limit beyond which he cannot be detained, in gaol, whether the fine be paid or not. The other law keeps him in confinement till the money is actually paid. It is, therefore, at least as severe as ours on his property, and is immeasurably more severe on his person. The offender who has been sentenced to fine must be considered as a debtor, and, as a debtor, not entitled to any peculiar lenity. It will be difficult to show on what principles a creditor ought to be allowed to employ, for the purpose of recovering a debt from a person who is perhaps only unfortunate, a more stringent mode of procedure than that which the State employs for the purpose of realizing a fine from the property of a criminal. If a temporary imprisonment for debt ought not to cancel the claim of the private creditor, neither ought a temporary imprisonment in default of payment of a fine to cancel the claims of public justice.