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Report No. 42

3.51. Section 63.- Section 63 needs no change.

3.52. Sections 64 to 6.-revised in one section.-

Sections 64 to 67 provide for the imposition of a sentence of imprisonment in default of payment of any fine that an offender has been ordered to pay, and regulate the nature and period of such imprisonment. The arrangement and drafting of these four sections are rather cumbrous and difficult to follow. In a petty case1 under the Madras Town Nuisances Act, 1889, that went up before the High Court in revision, the offender was sentenced to pay a fine of Rs. 8 and in default of payment to undergo simple imprisonment for a week. The punishment awardable under the Act was a fine not exceeding Rs. 50 or imprisonment of either description not exceeding 8 days.

The judges, after a not very convincing analysis of sections 64, 65 and 67, came to the conclusion that the case was covered by section 65 and not by section 67, and accordingly reduced the sentence of imprisonment in default of payment of fine from 7 days to 2 days. The reference in section 65 to offences "punishable with imprisonment as well as fine" is liable to be understood as excluding offences which may be punished either with imprisonment or with fine but not with both. We therefore propose that the four sections should be combined and put in one section as follows.-

"64. Sentence of imprisonment for non-payment of fine.-

(1) In every case in which an offender is sentenced to a fine, it shall be competent to the Court to direct by the sentence that, in default of payment of the fine, the offender shall undergo imprisonment for a certain term.

(2) If the offence be punishable with fine only, such imprisonment shall be simple, and the term thereof shall not excee.-

(a) two months, when the fine does not exceed one hundred rupees,

(b) four months, when the fine does not exceed two hundred rupees, and

(c) six months, in any other case.

(3) If the offence be punishable with imprisonment or fine, or with imprisonment and fine.-

(a) the imprisonment in default of payment of the fine may be of any description to which the offender might have been sentenced for the offence;

(b) the term of such imprisonment shall not exceed one-fourth of the maximum term of imprisonment provided for the offence; and

(c) such imprisonment shall be in addition to the imprisonment, if any, to which he may have been sentenced for the offence, or to which he may be liable under a commutation of a sentence."

It will be noticed that in sub-section (2) above, which corresponds to the present section 66, we have recommended a doubling of the amounts now mentioned therein.

1. Yakoob Sahib, 1898 ILR 22 Mad 238.

3.53. Section 68.-

Under section 68, imprisonment in default of payment of fine terminates when the fine is "either paid or levied by process of law". In the context it is clear that the word "levied" means realisation of the fine in full by process of law, and not merely taking the necessary steps authorised by law to enforce payment. These two different meanings that the word "levied" bears in legal usage1 raise difficulties in interpreting section 70 which are discussed below. In regard to section 68, however, we suggest that the word "levied" should be replaced by the word "realised", and that the words "in full" should be added at the end for the sake of clarity.

1. See Stroud Judicial Dictionary, (1952), Vol. II, p. 1630.

3.54. Section 69.-

Section 69, to which a lengthy illustration is appended, lays down the rule for termination of imprisonment in default when only a part of the fine is paid or levied. The underlying ideas which are simple enough are elliptically, and none too clearly, expressed in an attempt to make the section short, but the long-winded illustration more than counteracts the terseness of the section.

3.55. Sections 68 and 6.-combined and revised in one section.-

We suggest that sections 68 and 69 may be combined and revised as follows in one section, and the illustration to section 69 omitted.-

"68. Termination of imprisonment on payment or realisation of fine.-

(1) Imprisonment imposed in default of payment of a fine shall terminate whenever that fine is either paid, or realised by process of law, in full.

(2) Whenever a part of the fine is paid or is realised by process of law, the term of imprisonment fixed in default of payment shall be deemed to be reduced by such number of days as bears to the total number of days in that term the same proportion as the amount of fine paid or realised bears to the amount of fine imposed; and if, at that time, imprisonment in default of payment is being suffered, it shall terminate on the expiration of the reduced term or, if the reduced term has previously expired, it shall terminate forthwith.11

(3) In calculating the reduction required under sub-section (2), any fraction of a day less than one-half shall be left out of account and any other fraction shall be counted as one day."

1. See section 67(2) (UK) Magistrates Courts Act, 1952.

3.56. Section 70.-

Under section 70, the fine or any part thereof which remains unpaid may be "levied" at any time within six years after the passing of the sentence. It is well-settled that this period of six years is to be counted from the date of conviction and sentence in the Court of first instance, unless the operation of the sentence has been suspended.1

1. Palakdhari Singh v. State Uttar Pradesh, 1962 (Supp) 2 SCR 650: AIR 1962 SC 1145.

3.57. Meaning of "levied".-

But the word "levied" in this section is capable of two different interpretations. As observed by the Bombay High Court1 in another context, the word has many connotations, and what particular connotation should be given to that word would depend upon the context. In a Peshawar case,2 the Judicial Commissioner took the view that the word means the actual realisation of the fine, so that, even if the application for process is made within six years but the fine is not realised within that period, further proceedings cannot be taken.

A different view has been taken in a Bombay case,3 where it has been held that the section does not prescribe and limit of time for completing the proceedings taken for realising the fine through Court process. The High Court noted that, in sections 68 and 69, the term 'levied' is used in the sense of 'realised', but point out that the subject-matter of sections 68 and 69 was entirely different from that of section 70. Sections 68 and 69 dealt with termination of imprisonment which was being undergone in default, and necessarily it would terminate only when the fine is realised. But section 200 stood on a different footing.

Once a party sets out to recover money through process of Court, it is not within his volition to bring the proceedings to an end. Where, for example, claims or objections are made in respect of the attachment, the proceedings might be protracted for a long time. "It is difficult to accept the view that the legislature prescribed an outside limit within which the entire process, commencing from attachment of the property and ending with conversion thereof in cash by sale, has to be completed. To hold so may result in tempting convicts to resort to questionable methods for preventing sale of their attached property by protracting the proceedings."

The same view is taken by the Allahabad High Court4 which held.-

"It is not necessary that the proceedings for levy of fine should terminate within six years of the passing of the sentence. On the other hand, what section 70 of the Indian Penal Code contemplates is that the proceedings for levy of fine should commence within that period." 1. Dialdas v. Talwalkar, AIR 1957 Born 71 (76).

2. Mir Ahmed v. Collector, AIR 1943 Pesh 56.

3. Gopalan v. Union of India, AIR 1963 Born 21 (24, 25), para. 8.

4. Kehav Datta v. State, AIR 1967 All 276 (278), para. 8.

3.58. Amendment of section 70 proposed.-

We have no doubt that this is the right view to take. In order to make the position clear and avoid argument, we consider it desirable that the word "levied" should be replaced by a reference to commencement of proceedings for realising the fine. We further consider that since the object is to lay down a rule of limitation, the present permissive for.-"may be levied at any time within.-is not appropriate and should be changed. Section 70 may be revised as follows.-

"70. Limitation for levy of fine.- No proceedings for realisation of the fine or of any part thereof which remains unpaid, shall be commence.-

(a) at any time after the expiry of six years from the passing of the sentence, or

(b) if, under the sentence, the offender is liable to imprisonment for a longer period than six years, at any time after the expiry of that period.

70A. Death not to discharge property from liability.-The death of the offender does not discharge from the liability for recovery of fine any property which would after his death be legally liable for his debts."

3.59. Section 71.-

Section 71 contains three propositions each of which limits the punishment for an offence when it is made up, in one way or another, of several offences. It should be noticed that the section confines itself to the punishment aspect, leaving procedural aspects like prosecuting the offender, framing charges against him and convicting him of those charges, to be dealt with in the Criminal Procedure Code.

3.60. First paragrap.-"offence" made up of parts.-

As enacted in 1860, the section contained only the first proposition, namely that "where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided". Two illustrations are appended to this section but they hardly afford an adequate explanation of the major premise of the section, which is that the offence in question is "made up of parts".

The first illustration assumes, without expressly saying it, that the fifty strokes are given to Z one after the other at what may be called one beating, and it proceeds to state that, although the offence of voluntarily causing hurt to Z may be analysed into fifty offences (of the same nature), A is liable only to one punishment. If, however, A gives Z twenty strokes in the morning, fifteen strokes in the evening and another fifteen strokes the next morning, A can, despite the illustration, be held to have committed the offence on three different occasions and be punished separately for each such offence. The procedural counterpart for such a case is in section 234(1) of the Criminal Procedure Code.

To take another type of case, if A, a pick-pocket, first takes a silk handkerchief, then a purse, and lastly a cigarette case, from Z's pocket by three separate acts, it would be an interesting exercise in semantics with reference to section 71 whether A should be regarded as committing one offence of theft made up of three parts each of which part is itself an offence of theft or as committing three offences of theft "in one series of acts so connected together as to form one transaction" within the meaning of section 235(1) of the Criminal Procedure Code. It is, however, hardly conceivable that in such a case three charges of pick-pocketing would be brought against A and the Court asked to convict him on those three charges separately.

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