Law and You > Criminal Laws > Bharatiya Nyaya Sanhita > Amount of fine, liability in default of payment of fine (S. 8 BNS)
In a discussion on Default in payment of fine, a misconception that ought to be made clear is that the imprisonment ordered, is not a sentence but merely a penalty imposed on account of non-payment of fine. The significance being that the fine has little to do with the substantive aspect of the crime, but is more of a penalty for violating a court order, akin to civil contempt of court. The former has to be necessarily undergone, whereas the latter can be avoided by simply paying the fine.
Amount of fine, liability in default of payment of fine (S. 8 BNS)
Section 8(1) of the Bharatiya Nyaya Sanhita, 2023 lays no particular limit on the amount of fine that can be levied against an accused, but merely provides that, it shall not be ‘excessive’. The phrasing of the section ipso facto leaves a larger burden on the courts to determine fine as the area remains subjective. Many times, the Supreme Court and various HCs have put down distinct criteria to be followed while imposing fines at various points in time. This helped to resolve the issue of the unclear language of the Section.
In Emperor vs Mendi Ali , AIR 1941 All 310 case, where a young man Mendi Ali, was charged with murdering his wife. The learned Judge of Session Court, on a careful examination of the evidence, went on to find that the accused killed the woman under the influence of grave and sudden provocation and while wholly deprived by that provocation of the power of self-control. The learned Judge found the accused guilty, under part 1 of Section 304, Penal Code, and sentenced him to undergo ten years’ rigorous imprisonment which (omitting transportation for life) is the maximum sentence of imprisonment under Section 304 and he sentenced him also to pay a fine of Rs. 100 or to undergo a further period of a years’ rigorous imprisonment in default of paying that fine. Thus, the learned Judge sentenced him to a maximum term of rigorous imprisonment for the offence for which he was found guilty and added to it a fine (which there could surely have been little prospect of his paying). The result was that he was, in effect, sentenced to eleven years’ rigorous imprisonment. The Allahabad High Court revoked the fine imposed on the accused, claiming that he was only a poor peasant and that the sentence of incarceration if he did not pay the fine was also excessive because it would exceed the maximum permitted punishment. This brought up the concept of considering the accused’s financial situation when determining the amount of the fine under Section 63 IPC (Section 8(1) BNS).
In Palaniappa Gounder v. State of Tamil Nadu, 1977 SCC (2) 634 case, the Supreme Court while reversing the High Court’s judgment had noted that a fine cannot be calculated on the basis of the compensation that the relatives of the deceased ought to receive, but necessarily on the pecuniary position of the accused and the nature and magnitude of the offence. The Supreme Court also observed that default sentences should not be excessive. If the fine levied is high and excessive, the goal of achieving it will never be achieved.
Section 8(2) of the Bharatiya Nyaya Sanhita, 2023 deals with the case of imprisonment for non-payment of a fine. The legislators intended for this to act as a deterrent to paying the fee. It states that the same court can impose a sentence of imprisonment that is greater than the sentence imposed for the serious offence he committed. This the legislature intended to work as an inducement to pay up the fine. It says that the same court can pronounce an imprisonment sentence which will run in excess to the sentence for the substantial crime committed by him.
In State v. Krishna Pillai Madhavan Pillai, 1953 Cri LJ 1265 case, where the court had ruled that the two sentences (substantive sentence and sentence for default of fine) can never run concurrently and the fine can also be charged even after any such sentence or even after the death of the person. Serving the imprisonment does not discharge the offender of his duty to pay fine. Moreover, it should also be remembered that the sentence of imprisonment awarded in default of fine is a penalty rather than being a sentence which has to be undergone compulsorily.
Section 8(3) BNS provides a safeguard to the accused in case of imprisonment in default of fine. If the offence be one which is punishable with imprisonment as well as fine, the term of imprisonment in default of payment will not exceed one-fourth of the longest term of imprisonment fixed by the Code for the offence. The above mentioned proposition is laid down in the reading of Section 8(3) of the Bharatiya Nyaya Sanhita, 2023 as well as Section 24 of BNSS.
In Ram Jas v. State of Uttar Pradesh, AIR 1974 SC 1811 case, the Supreme Court held that a sentence for default of fine if exceeds the maximum sentence provided for that particular substantive offence will be declared illegal.
- According to Section 8(4) of the Bharatiya Nyaya Sanhita, 2023 the imprisonment which the Court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence.
- According to Section 8(5) of the Bharatiya Nyaya Sanhita, 2023 if the offence is punishable with fine or community service, the imprisonment which the Court imposes in default of payment of the fine or in default of community service shall be simple, and the term for which the Court directs the offender to be imprisoned, in default of payment of fine or in default of community service, shall not exceed,—
(a) two months when the amount of the fine does not exceed five thousand rupees;
(b) four months when the amount of the fine does not exceed ten thousand rupees; and (c) one year in any other case.
- According to Section 8(6)(a) of the Bharatiya Nyaya Sanhita, 2023 the imprisonment which is imposed in default of payment of a fine shall terminate whenever that fine is either paid or levied by process of law;
- According to Section 8(6)(b) of the Bharatiya Nyaya Sanhita, 2023 if, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.
Section 8(6) of BNS is also an accused friendly section grading imprisonment as inferior to the fine. Meaning thereby that if a person pays off his fine then his imprisonment will terminate at that very point of time. It also carries the principle, but it says that the portion of the imprisonment reduces in the same proportion as the portion of the fine paid by the person.
Illustration:
A is sentenced to a fine of one thousand rupees and to four months’ imprisonment in default of payment. Here, if seven hundred and fifty rupees of the fine be paid or levied before the expiration of one month of the imprisonment, A will be discharged as soon as the first month has expired. If seven hundred and fifty rupees be paid or levied at the time of the expiration of the first month, or at any later time while A continues in imprisonment, A will be immediately discharged. If five hundred rupees of the fine be paid or levied before the expiration of two months of the imprisonment, A will be discharged as soon as the two months are completed. If five hundred rupees be paid or levied at the time of the expiration of those two months, or at any later time while A continues in imprisonment, A will be immediately discharged.
The unpaid fine is ranked as government debt pari passu with the other debts of the deceased offender. Though the fine can be recovered from his property, which property is to be used for this purpose depends on the personal law of the person.
In Harnam Singh v. State of Himachal Pradesh, AIR 1975 SC 236 case, the Supreme Court ruled that “An appeal from a sentence of fine is accepted from the all-pervasive rule of abatement of criminal appeals for the reason that the fine constitutes a liability on the estate of the deceased and the legal representatives on whom the estate devolves are entitled to ward off that liability.”
Difference Between Section 24(1)(b) BNSS and Section 8(3) BNS:
- Section 8(3) BNS provides for the maximum level of imprisonment, and fine that magistrates of different classes can award, while Section 24(1)(b) checks that a magistrate does not surpass those powers to award imprisonment to the accused.
- According to Section 8(3) BNS the maximum level of imprisonment in case of default of fine cannot be more than one-fourth of the substantive sentence i.e., if an offence provides for a sentence of two years then default sentence in that case would be six months. But that does not apply to the magistrate.
- Magistrate does not always possess the powers of awarding the maximum sentence, and thus the default sentence i.e. one-fourth of the substantive sentence awarded will also be less, as compared to the default sentence given by a session court. Because a session court has the power to impose the maximum sentence but a magistrate does not. The quantum of one-fourth is case of Section 8(3) BNS has to be measured from the maximum punishment prescribed in the section, while in case of Section 24 BNSS it has to be measured from the powers of the magistrate conferred under Section 23 of BNSS.
In Chhajulal v. State of Rajasthan, AIR 1972 SC 1809 case, the Supreme Court gave harmonious construction to these two sections and said that a magistrate therefore cannot exceed his powers under Section 29 CrPC (S. 24 BNSS) to award imprisonment by resorting to Section 65 IPC (S. 8(3) BNS).
Variation in Cases of Life Imprisonment and Death Sentence:
Currently the Bharatiya Nyaya Sanhita, 2023 provides for no barrier of imposing a fine in cases where the accused is sentenced to either a life imprisonment or death penalty. On the contrary, Section 103 of the BNS provides that in addition to the two sentences, the perpetrator shall also be liable to pay fine. The power of the court to impose a fine in these cases is undisputed. However, the instances where it must be exercised is contentious.
In Palaniappa Gounder v. State of Tamil Nadu, AIR 1977 SC 1323 case, the Supreme Court said: “Though there is power to combine a sentence of death or life imprisonment with a sentence of fine that power is to be sparingly exercised because the sentence of death is an extreme penalty to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any social purpose.”
In Shahejadkhan Mahebubkhan Pathan v. State of Gujarat, 2012 SCC 840 case, the Supreme Court laid down the parameters of imposing fine. The parameters being, firstly, the pecuniary circumstances of the accused and other relevant information, secondly the character and the magnitude of the offence and lastly the nature of the sentence already imposed.
In Shakir v. State of Madhya Pradesh, Cr.A. No.717/2011 case, the Supreme Court had said that adding a sentence of fine to the grave penalty of death does not serve any social purpose.
Note:
Compensation to the victim at all times is paid from the fine that is levied on the accused. The proviso to Section 461(1) BNSS provides that a fine shall seize to exist if the accused has undergone the contemplated imprisonment in default of it. However, there is an exception to this proviso. Section 395 BNSS is a special provision for compensation that the relatives of the victim are entitled to, from the perpetrator. The proviso in 461 makes sure that in spite of the person having served the sentence is not relived of his/her liability to pay, if such fine is to be paid as compensation under section 395.
Conclusion:
Under the sanction of the law, Punishment is retribution on the offender to the suffering in person or property that is inflicted by the offender. Punishment is a way through which an offender can be prevented from committing an offence against a person, property, and the government. The punishment for an offence may be Imprisonment with fine or fine only or imprisonment only. Sometimes the accused might not have the capacity to pay the fine. In such a situation the accused will be imprisoned for a fixed term for non-payment of the fine. Section 8 of BNS deals with various provisions regarding fines under the BNS.