IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 Crl.MC.No. 3677 of 2008() ------------------------- CRMP.1962/2008 IN ST 159/04 OF CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER: --------------- SHINE VARGHESE, S/O.LATE P.M.VARGHESE, KOYIPPURATHU HOUSE, AZHOOR, PATHANAMTHITTA. BY ADV. SRI.V.K.SUNIL RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHAJI P.S., S/O.PRABHAKARAN, PADINJATTETHIL HOUSE, MALAYALAPPUZHA P.O. PATHANAMTHITTA. 3. THE DISTRICT COLLECTOR, PATHANAMTHITTA. R1 & 3 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: R. BASANT, J. - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No. 3677 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of October, 2008 O R D E R Can a criminal court issue a warrant under Section 421 Cr.P.C. for recovery of the fine/compensation imposed without and before executing the default sentence imposed on an accused? This is the question that is raised before me. 2. The petitioner is the complainant in a prosecution under Section 138 of the N.I. Act. The accused was found guilty, convicted and sentenced by the trial court. The petitioner's appeal was dismissed by the learned Sessions Judge. In revision another Bench of this Court upheld the verdict of guilty and conviction, but the sentence imposed was modified. He was sentenced to pay a fine of Rs.1,00,000/- within a period of five months from 23.10.2007 and in default to undergo S.I. for a period of three months. It was further directed that the entire fine amount shall be paid as compensation under Section 357(1) Cr.P.C. Crl.M.C.No. 3677 of 2008 2 3. The accused has not been apprehended so far. He has not paid the fine amount also till now. Non-bailable warrants issued against the accused have not been executed by now. The petitioner/complainant in these circumstances approached the learned Magistrate with an application under section 421 Cr.P.C. to issue warrant to attach an item of property belonging to the accused and to attempt recovery of the fine amount by attachment and sale of that property. That application was dismissed by the learned Magistrate by the impugned order, which reads as follows: “Heard. The compensation u/s. 357(3) Cr.P.C. has been modified as fine and in default to imprisonment and compensation is ordered u/s. 357(1) Cr.P.C. NBW already issued against the accused. A warrant u/w. 421 Cr.P.C. cannot be issued. Petition is rejected.” 4. The respondent/accused is not available. Warrants of arrest issued against him have not succeeded in procuring his presence. It is therefore unnecessary to wait for issue and return of notice to him. The learned counsel for the petitioner contends that there is nothing in Crl.M.C.No. 3677 of 2008 3 law which obliges a Magistrate, who has the duty to execute a sentence of fine and a default sentence, to wait until the default sentence is executed before taking steps under Section 421 Cr.P.C. to recover the fine amount. The petitioner apprehends that the accused may dispose of the property which stands in his name before he is apprehended in which event the petitioner will be left with no effective method to get compensation which is directed to be paid out of the fine amount under Section 357(1) Cr.P.C. 5. The crucial question to be decided is hence whether in the case of sentence of fine coupled with default sentence, it is permissible for the Magistrate to take steps under Section 421 Cr.P.C. to recover the amount even when the default sentence is not executed. 6. A look at the fundamentals appears to be necessary. It has been repeated time and again that default sentence imposed for non- payment of fine/compensation is not a punishment imposed on the accused under Section 53 I.P.C. Default sentence imposed is only a mode of enforcement of the sentence of fine. The Supreme Court in Shantilal v. State of M.P. (2008 (1) KLT 503 (SC) Kuldip Kaur Crl.M.C.No. 3677 of 2008 4 v. Surinder Singh (1989) 1 SCC 405) and this Court following those precedents in the decision Ganga v. Lakshmi Ammal (2008(2) KLT 306) has clearly held that a default sentence is not a punishment in the strict sense and is only a method of enforcement of a sentence of fine imposed on an accused. 7. It will next be appropriate to consider whether a default sentence would wipe out the liability to pay the fine amount. That aspect of the matter was considered in detail in the decision in Sajikumar v. Soman Pillai (2006 (3) KLT 679). That was of course a case, where it was a default sentence imposed for non- payment of compensation and not fine. It will be apposite in this context to refer to Section 421(1) Cr.P.C., including its proviso, which I extract below: S.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 - Crl.M.C.No. 3677 of 2008 5 (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. (emphasis supplied) 8. An analysis of Section 421(1) Cr.P.C. clearly shows that where out of the fine amount imposed compensation has been directed to be paid, attempts to recover the amount under Section 421 Cr.P.C. must continue even after the default sentence is undergone by the offender. It therefore is evident that whether the default sentence is Crl.M.C.No. 3677 of 2008 6 executed or not, the liability to recover the amount continues. In a case where there is a direction to pay compensation out of the fine amount, no court can give up steps for recovery under Section 421 Cr.P.C. merely because the default sentence has been undergone. In all cases where payment of compensation out of fine amount is directed under Section 357 Cr.P.C. attempt to recover the amount by issue of warrants under Section 421 Cr.P.C. must continue even after the default sentence is undergone. 9. Therefore, in the instant case whether the accused person is made available to undergo the default sentence or not and whether he actually undergoes the default sentence or not the Magistrate is bound to issue warrants under Section 421 Cr.P.C. to recover the fine amount which is liable to be paid. 10. There is nothing in the Code which stipulates that the default sentence need be undergone only if the recovery of the fine becomes impossible in spite of steps taken under Section 421 Cr.P.C. In Section 125 Cr.P.C. and Section 3(4) of the Muslim Women (Protection of Rights on Divorce) Act there is a stipulation that the sentence in Crl.M.C.No. 3677 of 2008 7 default can be imposed only if the amount due “remains unpaid after execution of the warrant” under Section 421 Cr.P.C. But such a stipulation is not there in respect of fine/compensation imposed. Therefore, a default sentence can be executed even before warrants of arrest are issued and attempt is made to recover the same under Section 421 Cr.P.C. But the converse does not appear to be correct. It is not the law that a warrant under Section 421 Cr.P.C. of either description (a or b) cannot be issued if there is a default sentence imposed and such sentence is not executed. Though it is not necessary or essential that a Magistrate must wait to recover the amount before the default sentence is executed, it will always be humane and proper for a court to simultaneously attempt recovery of the fine amount because if the fine amount is recovered before the accused is made available for execution of default sentence unnecessary incarceration of an individual and deprivation of liberty can be avoided. If the fine amounts were recovered under Section 421 Cr.P.C. there can be no question of executing the default sentence after such recovery. Crl.M.C.No. 3677 of 2008 8 11. In this view of the matter, I am certainly of the opinion that every Magistrate, who is obliged to execute a sentence of fine and a default sentence (coupled with a direction for payment of compensation under Section 357(1) Cr.P.C.) will do well to issue warrants under Section 421 Cr.P.C. simultaneously with the attempt to apprehend the accused for execution of the default sentence. If properties, movable and immovable, are available and the amounts are recovered from such properties, the default sentence will not have to be executed at all. In this view of the matter, issue of warrant under Section 421 Cr.P.C. before default sentence is executed though not obligatory will certainly help an accused person also to avoid the default sentence. It shall help the victims also as the defaulter will not get time to clandestinely dispose of his properties to make them unavailable for attachment and sale. 12. In any view of the matter, I am unable to accept the stand taken by the learned Magistrate that because there is a default sentence and the said sentence has not been executed no warrant of arrest under Section 421 Cr.P.C. can or need be issued. The Magistrate is bound to Crl.M.C.No. 3677 of 2008 9 attempt to recover the fine amount by issue of warrants under Section 421 Cr.P.C. notwithstanding the fact that there is default sentence and notwithstanding the fact that the default sentence has not been executed. I make it clear that even if warrants for recovery are issued under Section 421 Cr.P.C., there is no impediment in executing a default sentence if on the date of execution of the default sentence, the fine amount has not actually been realised and paid into court. 13. In this view of the matter the impugned order deserves to be set aside. The Magistrate must be directed to attempt recovery of the fine amount by issue of warrants under Section 421 Cr.P.C. and not to wait for the apprehension of the accused and for execution of the default sentence before such warrants are issued. 14. In the result: a) This Crl.M.C. is allowed. b) The impugned order is set aside. c) The learned Magistrate is directed to issue warrants under Section 421 Cr.P.C. forthwith in an attempt to recover the fine amount Crl.M.C.No. 3677 of 2008 10 by attachment and sale of movable and immovable properties of the accused. (R. BASANT) Judge tm