Imprisonment in Default of Fine (Sections 64 to 70 of IPC)

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.

Law of Private Defence in India

The Indian law gives wider latitude to the exercise of the right of private defence than the English law upon which it is based. The Law Commissions who framed the Penal Code have justified it with the following observations:

“It may be thought that we have allowed too great a latitude to the exercise of this right; and we are ourselves of opinion that if we had been framing laws for a bold and high-spirited people, accustomed to take the law into their own hands to go beyond the line of moderation in repelling injury, it would have been fit to provide additional restrictions.

In this country the danger is on the other side; the people are too little disposed to help themselves; the patience with which they submit to the cruel depredations of gang robbers and to trespass and mischief committed in the most outrageous manner by bands of ruffians, is one of the most remarkable, and at the same time one of the most discouraging symptoms which the State or society in India present to us. Under these circumstances, we are desirous rather to rouse and encourage a manly spirit among the people than to multiply restrictions on the exercise of the right of self-defence.”

The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression. The right of defence is absolutely necessary. The Vigilance of Magistrates can never make up for the vigilance of each individual in his own behalf.

The fear of the law can never restrain bad man so effectually as the fear of the sum total of individual resistance. Take away this right and you become in so doing the accomplice of all bad men. — (Bentham)., The law does not require a citizen, however, law abiding he may be, to behave like a rank coward on any occasion.

The right of self-defence as defined by law, must be fostered in the citizens of every free country, and it is perfectly clear that if a man is attacked, he need not run away, and he would be perfectly justified in the eye of law if he holds his ground and delivers a counter-attack to his assailants provided always, that the injury which he inflicts in self-defence is not out of proportion to the injury with which he was threatened.

The relationship between the people of village A and that of village B were severely strained. They had to go for prayer to village C on the day of Id. For the people of village A the only route for going to village C was the one which passed through village B.

The people of village B returned from the prayers early and came to the route after equipping themselves with arms in order to wait for confronting the people of village A on their way back home from their Id prayers.

It was held that merely because the only route passed through village B it could not deprive the people of village A of that right to use that route for going to village C. When in the lawful and bona fide exercise of the right to go back to their village in their carts by that route they were confronted by people of village B who were armed with dangerous weapons and were waiting for them.

They were fully justified in using force to defend themselves against unlawful aggression. The law did not require a law-abiding citizen to behave like a coward when confronted with an unlawful aggression.

Difference between Public Nuisance and Private Nuisance – Explained!

Keeping a common gambling house is a public nuisance, but where the branches of one’s tree hang over the house of another it is a private nuisance.

A private nuisance affects some particular individual or individuals as distinct from the public at large. Our study here is confined to public nuisance. Public nuisance is based on the principle embodied in the maxim sic utere two ut rem pnblicam non laedas which means “Enjoy your property in such a way as not to injure the rights of the public”.

The remedies open to a person for public nuisance are (i) action under Section 91, Civil Procedure Code, or (ii) prosecution of the offender under this chapter, or (iii) an action in tort, if any special damages is suffered, or (iv) magisterial preventive action under Section 133, Criminal Procedure Code.

This chapter deals with different forms of public nuisance, e.g., acts likely to spread infection, adulteration of food or drink or drugs, fouling water of a public spring or reservoir, making atmosphere noxious, rash driving, riding or navigation, danger and obstruction to public way, selling obscene literature or pictures, and keeping a lottery office.

To offend the sentiments of the followers of one creed by another who follow other creeds residing in the neighbourhood has not been regarded as public nuisance. In Muttumira (7 M 590) the setting up of an image by Muslims during Moharrum in the village waste land near a Hindu Temple was held not to constitute a public nuisance.

Similarly Bombay High Court in Byramaji Edalji’s case (12 B. 432) where certain Jains complained against the accused’s cutting meat on the varandah of his house in sight of the complainants —the neighbors. The exposure of the meat although revolting to the feelings of the Jains was held to be not sufficient to constitute a nuisance.

While providing for different kinds of public nuisance, Section 290 recognises that this Code is not exhaustive. It provides that a public nuisance, not otherwise punishable under this Code, shall be punished with fine upto Rs. 200 (Section 290).

Object of Law

The object of Law, according to Hobbes, is to curtail or limit the natural liberty of men so that they might not harm but assist one another against a common enemy. The community could not have been in a state of cohesion and unity without being able to resist disruption within from conflicts, growing up amongst its own members and to withstand aggression from outside, without a supreme power to control it from within and give its effective guarantees against these twin apprehensions to its existence.

That power is the State which, through its supremacy, ensures a harmonious enjoyment of liberties. It restrains some in order that all may be free. The most essential functions of the State are two: (i) war, and (ii) the administration of justice. But for the State, might would be right. The administration of justice is a process whereby right is protected by might, i.e., the might of the State.

The- administration of justice, as Salmond has put it, is the maintenance of right within a political community by means of the physical force of the Sate. “Without a common power to keep men in awe it is impossible for men to live together except in the most primitive forms of society where life would be solitary, poor, nasty, brutish and short” — Hobbes.

The element of force behind the authority of the State is always there, though it may not come to the surface which signifies not the absence of State control but its final triumph and supremacy within the community governed by the State.

Law is the will of the State, the command of the Sovereign. Law makes organised social life possible. Law, according to Locke, does not abolish or restrain freedom; it enlarges it. So also thought, Kant and Savigny.

The restraint of law is a means to an end, not an end in itself. The social aspect of human life is supreme otherwise there would have been no need for either the State or the law to sustain it. It is not an exception to the basic scientific conception that it is the union of the positive and the negative forces or impulses, which gives shape to any concrete reality or existence. That, man is selfish —is an essential truth; that, man is social —is a fundamental necessity. If Aristotle gives us the truth, Hobbes and Aristotle together give us the whole truth. Our concept of the social element in human life has become mature, grown up to its true dimensions and scientifically precise. Aristotle is a living thinker, living not in that we still read him, nor in that he has now more admirers but in that his thoughts have grown from where he had left them; he is still finishing his work from beyond.

Difference between "giving false evidence" and "fabricating false evidence"

(i) The offence of giving false evidence is committed by a person who is bound by an oath or an express provision of the law to tell the truth but it is not so in the case of fabricating false evidence,

(ii) in the case of giving false evidence, the false statement need not be made on a material point but in the case of fabricating the false evidence the evidence fabricated must be on a material point,

(iii) The question of the effect of the evidence on the officer before whom the evidence is given is of no consequence in the case of giving false evidence but this effect is the important point in fabricating false evidence,

(iv) It is essential that there should be a proceeding, judicial or non-judicial, being conducted at the time of fabricating false evidence which only contemplates a reasonable prospect of such a proceeding having regard to the circumstances of the case and that the evidence fabricated is intended to be used in such a proceeding,

(v) Last but not the least, it is the intentional giving of false evidence or the intentional fabrication of false evidence that is punishable.

Intention is the essence of both the offences but there is a difference in the kinds of intention. In the case of giving false evidence only general intention is sufficient, i.e., it must be intentionally given, i.e., given knowing it to be false and with the intention of deceiving the person conducting the proceeding to believe the statement to be true but in the fabrication of false evidence there is a particular intention to use the fabricated evidence in a proceeding and to procure the formation of a wrong view on a material point.

A false entry in his special diary by a Police Investigating Officer is inadmissible in evidence and it cannot as such form the basis of a conviction for fabricating false evidence.

Miscellaneous allied offences. The following offences are punishable in the same way as the giving of false evidence:

Issuing or signing any certificate required by law to be given or signed or by law made evidence of any fact knowing or believing that such certificate is false in any material point (Section 197); using or attempting to use as true a certificate known to be false in material point (Section 198); false statement made in any declaration which touches any material point and which is by law receivable as evidence (Section 199); using as true any such declaration known to be false in any material point (Section 200).

The High Court of Orissa, in Haldhara Karji v. Dileshwar Subudhi, held that a caste certificate issued by the M.L.A. without specifying caste or tribe of the applicant for the purpose of enabling the student to obtain pre-metric scholarship is not a certificate within the meaning of Section 197, I.P.C.

History of Criminal Laws in India

The Criminal law in India has passed through three main periods the Hindu Criminal Law, the Muslim Criminal Law and the English Criminal Law.

(1) Hindu Criminal Law:

Mayne in his well known treatise on criminal law has in strong words recognised the greatness and soundness of the Hindu System of Criminal Law. The known history of India starts after the settlement of Aryans in this country.

In course of time Aryan society developed its political and social organisation and other institutions. They established a mature legal system. Their laws including the criminal law were fully developed. P.N. Sen in his Hindu Jurisprudence says: “In the Hindu Law punishment of crimes occupied a more prominent place than compensation for wrongs or the penalties. Although under certain circumstances wrong-doer had to compensate the person wronged but it was generally levied in addition to and in substitution for the penalty”.

It was the duty of the king to punish offenders. Manu says that it was the duty of the king to punish those who deserve to be condemned. So penal law of Hindus was law of crimes and the law of Torts. It recognised various kinds of offences, namely, assault, adultery, defamation, theft, robbery and violence as crimes. These crimes were recognised by Manu, Yagnavalkya and Nilkanta.

Further various kinds and degrees of punishments were prescribed to be rendered flexible and kept in the proportion to the enormity of the offence. Measure of punishment varied according to the gravity of the offence.

In meeting out punishment a number of factors were to be taken into consideration. According to Yagnavalkya some such factors were: nature of the offence, time and place of the offence, strength, age, avocation of the offender, wealth (value of the article stolen) etc.

End of punishment, according to Hindu law, was protection of the people and purification of the culprit. No one was exempt from punishment. Even the king himself was liable if he committed an offence. However, inflicting the punishment, caste was a very important factor.

Brahmins was immune from bodily punishment, persons of higher castes were generally given a lighter punishment. This aspect of Hindu Criminal Law has been greatly criticised. But one thing has been generally overlooked. It is that the men of higher castes were given higher punishments for immoral offences. In this way equality in the matter of punishment was maintained.

Many principles which are corner-stones of Modern Criminal Jurisprudence were well known to Hindu jurists and were made parts of Hindu Criminal Law. A criminal could never acquire immunity. Right of private defence, infancy, lunacy and many other conditions, were recognised as grounds for exemption from criminal liability.

(2) Muslim Criminal Law:

After the conquest of the country by Mohammedans they introduced their own system of criminal law which was based on Quran. The elucidation and expounding of law was left to the Kazis, Kazis in the determination of the offences and punishment did not proceed on fixed rules but shaped their judgment according to the power and financial condition of the offenders before them.

Thus, law was not certain and known to majority. The crimes against God were deemed worthy of the public vengeance but offences against men were left to be taken care of the individuals.

(3) English Criminal Law:

When India came under the domain of East India Company, Britishers wanted to preserve status quo but the defects of Mohammedan Criminal Law were noticed and before the Indian Penal Code came into force the English Criminal Law, modified by various Acts was applied in the Presidency-town of Bombay, Calcutta and Madras while courts in the interior were mainly guided by Muslim Criminal Law.

The local Governments in the interior framed Regulations to remove the glaring defects of the Muslim Criminal Law. In the Presidency of Bombay there was a revision of the administration of Justice in 1827 and the law to be followed in criminal cases was set forth in a Regulation but the position in the other Presidencies remained precisely where it was.

The Indian Penal Code drafted by the first Indian Law Commission presided over by Lord Macaulay and the draft was submitted to the Governor-General of India-in-Council in 1837 and after revision by several persons Sir Barnes Peacock, Sir J.W. Colville and other Judges of the Calcutta High Court—The draft was finalised in 1850.

It was submitted to the Governor-General-in-Council in 1856 and received the assent of the Governor-General on October 6, 1860. It was intended to put it into force from the 1st May, 1861 but enforcement was postponed till the 1st January, 1862, the interval being utilised by the publication of the Code in vernacular for general information and mastery of grasp by Indian Judges and officers of the new law contained in the Code.

These steps were found necessary as the Indian Penal Code completely revolutionised the then existing Criminal Law. Livingstone’s Code and the Code of Napoleon as also English and Indian law provided the background on which the Indian penal Code has been prepared. Constitutional changes since August, 1947 have led to revisions and change, in many sections of the Code. The members of the Law Commission which prepared the draft when submitting the draft made the following observations as to nature of the proposed law: “We cannot admit that a Penal Code is by any means to be considered as a body of Ethics that the Legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all, it follows that the Legislature considers that act as innocent.

Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross ingratitude and insolvence deserves more severe reprehension than the man who aims a blow in a passion, or breaks a window in a frolic; yet we have punishments for assault and mischief, and none for ingratitude.

The rich man who refuses a mouthful of rice to save a fellow-creature from death may be a far worse man than the starving wretch who snatches and devours the rice; yet we punish the latter for theft and we do not punish the former for hard-heartedness”.

Distinction between "Dishonestly" and "Fraudulently"

Dishonestly in law differs from the fraudulently of the market place. For the layman the term means deceit. Deceit is an intentional misrepresentation or concealment and it is an essential element of fraud but not of “dishonesty” in law.

Sri Hari Singh Gaur in his book: ‘The Penal Code of India’ has pointed out three essential elements of dishonesty in law, namely; (a) intention, (b) employment of unlawful means, and (c) acquisition of property to which one has no right.

The intention may be to cause wrongful gain or wrongful loss and it may or may not actually mature into such gain or loss of property but such gain or loss must be the intention with which an act is done before such act can be called dishonest.

Dishonesty in law is confined to those matters in which property is involved as the subject-matter to which the act or the series of acts constituting dishonesty relates. There can be no dishonesty unless property is involved. There can be dishonesty without deception. It is necessary that the means employed must be unlawful, i.e., illegal or prohibited by law.

Examples:

(i) A destroys the crops belonging to B in broad daylight. He commits this mischief in the presence of B with the object of causing wrongful loss to B, but B fails to prevent him from doing so as he finds A more powerful. There is no question of deceit or secrecy but the act is unlawful and the intention behind it is to cause wrongful loss to B. The act is dishonest.

(ii) A snatches away by force a fountain-pen from the pocket of B and tells him that he shall not return until B gives him some money and with such intention retains the fountain-pen with him. The act is dishonest as the fountain-pen has been taken away by the employment of means prohibited by law and with the intention of causing wrongful loss to B.

There may be dishonesty through deceit as well but deceit is not the essence of the matter. The definition given in Section 25 does not give much help as it is used tantologically. The word “fraud” or “fraudulently” must be understood in the general or popular sense.

It involves two elements, namely: (1) deceit, and (2) injury caused or likely to be caused to the person deceived or someone else in consequence of the deception. If a person by deceiving another derives any advantage from it, which he could not have had, if the truth had been known, and thereby causes injury to the body, mind or reputation of the deceived, he commits fraud.

In all cases where an advantage has been obtained, there will invariably be an equivalent disadvantage in loss or risk of loss to the deceived or to someone else. There is no definition of the word “defraud” but courts in India have followed the well-known analysis of the word by Sir James Stephen in his ‘History of the Criminal Law of England’, in which he points out two essential elements which constitute fraud;: (i) deceit or an intention to deceive or in some cases, mere secrecy, and (ii) either injury or possible injury or an intent to expose some person to any such injury by such deceit or secrecy.

We may summarise these two elements and define a fraudulent act as an injurious deception. “Injury” is a more comprehensive term than “wrongful loss of property”. Though such loss is an injury, there are other forms of injury in which such loss is not involved.

The word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property (Section 44). It is the infringement of a legal right. In practice people seldom deceive each other for a purpose which is not to their own advantage.

The Allahabad High Court, taking this aspect into view, has laid down that where there is an intention to deceive and by means of the deceit to obtain an advantage there is fraud. The Bombay High Court has laid emphasis on deception pointing out that it is immaterial whether such deception is from an expectation of advantage to the party himself or from ill-will towards the other.

The Supreme Court of India has observed a clear distinction between dishonestly and fraudulently in the case of Vimla Devi v. Delhi Administration

1. In the act of fraudulently, the element of deceit is always present while in case of dishonestly it is always necessary.

2. Dishonestly requires an intention to cause wrongful gain or loss to the property while such act is not material for the act of fraudulently.