Some offences are punishable with imprisonment as well as fine, some with imprisonment or fine and some with fine only. What is to be done when an accused is sentenced to pay a fine and he is either not in a position to pay it or does not want to pay it. He cannot obviously be allowed to remain without punishment, and the only other form of punishment which may be awarded to him is imprisonment.
Imprisonment awarded for non-payment of fine 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 sentence, that is, it shall not be concurrent with any other imprisonment (Section 64).
Thus, where the Court imposes two sentences of imprisonment and also fine, on each of the two counts, it may order the substantive terms of imprisonment to run concurrently but the terms of imprisonment in default of fine must run consecutively.
If there are more than one sentences of fine, imprisonment in default in such sentence shall be consecutive, not concurrent and a direction that they shall run concurrently shall be illegal.
Courts specify the term of imprisonment which the offender shall undergo in default of the payment of fine and where it is not so specified, as is generally the case where a sentence of fine only is given; the term of imprisonment has to be calculated according to a prescribed scale. Courts also when specifying the terms of imprisonment to be undergone in default of the payment of fine are guided by such scale.
When the offence is punishable with imprisonment as well as fine, imprisonment in default of fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence (Section 65).
The maximum term of imprisonment for theft is 3 years, one-fourth whereof is 9 months. The maximum limit up to which imprisonment in default may go is 9 months and is open to the court to pass any lesser sentence but a sentence of imprisonment in default in excess of 9 months shall be illegal. Such extra punishment may be of any description to which the offender might have been sentenced for the offence, i.e., it may be rigorous or simple accordingly as the substantive term of imprisonment is rigorous or simple (Section 66).
When the offence is punishable with fine only, imprisonment in default shall always be simple, and it shall not exceed 2 months when the fine does not exceed Rs. 50, shall not exceed 4 months when the fine does not exceed Rs. 100 and shall not exceed 6 months in any other case (Section 67).
In an important case where accused is convicted with fine (with or without imprisonment), Madras High Court has upheld that the accused defaults in payment of fine in due time, he will be awarded imprisonment for default. Such punishment will be treated separately with the main offence.
Imprisonment in default of payment shall terminate as soon as the fine is paid or realised (Section 68) and it shall be proportionate to the amount of such fine (Section 69), e.g., A is sentenced to pay a fine of Rs. 100 and the term of imprisonment in default, is 4 months, if Rs. 75 are paid or realised towards such fine, the term of imprisonment shall be reduced by three-fourths of the term and the offender shall undergo only one month’s imprisonment.
Fine or any unpaid part of it may be levied at any time—(i) within 6 years of the passing of the sentence, or (ii) before the expiration of the period of the sentence, whichever is later. The death of the offender shall not discharge the property from liability (Section 70) and fine may be realised even when the offender has undergone full imprisonment in default.
The offender cannot be permitted to choose whether he will suffer in his person or his property. His property shall be safe only after the expiry of the period of limitation and if he dies before such expiry, the property shall remain subject to liability.
The period of limitation protects his property but not his person and he can be arrested and made to undergo imprisonment in default even after the expiry of 6 years. The period of limitation does not start to run under Section 70 where on account of an order of a higher Court the fine has ceased to be leviable. Section 70 says that the State shall levy fine within six years from the date of his sentence. To levy is to realise or to collect. It is clear that is meant is what within six years the State must commence proceeding for realisation, not complete it.
For failure under the Code has not effect of corrupting the blood and extinguishing its power of transmitting inheritable rights. It follows that in realisation of fine when the ancestral property of a convict is put to sale, what is transferred to the Government or rather to the purchaser through the Government, are the personal rights of the convict in the property and nothing which he could not have assigned away.
The period of limitation prescribed under Section 70 of the Code does not apply to recovery of fine imposed by the High Court for its contempt because the power of the High Court to punish for contempt of itself arises under Article 215 of the Constitution.
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