The legal position regarding fines and default sentences, suspension of sentence under Section 389 CrPC, and legal remedies for victims of wrongful incarceration and malicious prosecution in India.

Dr. S. Muralidhar, J.

1. The present appeal was allowed by a detailed judgment dated 15th September 2016. However, by a separate order of that date, the Court highlighted three issues that arose in a larger context, and sought inputs from Prof. (Dr.) G.S. Bajpai, Professor of Criminology & Criminal Justice and Registrar, National Law University, Delhi by appointing him as amicus curiae. Prof. Bajpai has submitted a detailed report.

Fines and default sentences

2. The first issue concerns 'the substantive law and procedure relating to the default in payment of fine.’ The Court's attention is drawn to the decision of the Supreme Court in Palaniappa Gounder v. State of Tamil Nadu (1977) 2 SCC 634, where the Supreme Court has observed that “the sentence of fine must not be unduly excessive”. It was further observed:

“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.”

3. The Court's attention is also drawn to the decision in Shahejadkhan Mahebubkhan Pathan v. State of Gujarat (2013) 1 SCC 570 where the Supreme Court reiterated the earlier decision in Shantilal v. State of M.P. (2007) 11 SCC 243 which analysed in detail the scheme of the provisions in Sections 63 to 70 IPC. The Supreme Court in Shahejadkhan Mahebubkhan Pathan (supra) observed:

"It is clear and reiterated that the term of imprisonment in default of payment of fine is not a sentence. To put it clear, it is a penalty which a person incurs on account of non-payment of fine. On the other hand, if sentence is imposed, undoubtedly, an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. However, the imprisonment ordered in default of payment of fine stands on a different footing. When such default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount. Accordingly, he can always avoid to undergo imprisonment in default of payment of fine by paying such an amount. In such circumstance, we are of the view that it is the duty of the Court to keep in view the nature of offence, circumstances in which it was committed, the position of the offender and other relevant considerations such as pecuniary circumstances of the accused person as to character and magnitude of the offence before ordering the offender to suffer imprisonment in default of payment of fine. The provisions of Sections 63 to 70 of IPC make it clear that an amount of fine should not be harsh or excessive. We also reiterate that where a substantial term of imprisonment is inflicted, an excessive fine should not be imposed except in exceptional cases."

4. The Court is of the view that the above decisions make the legal position regarding fines and default sentences fairly clear.

Suspension of sentence

5. The second issue concerns the existing law on suspension of sentence under Section 389 CrPC. In this context, Prof. Bajpai has in his report referred to the large number of judgments of the Supreme Court and in particular the decisions in Kashmira Singh v. State of Punjab (1977) 4 SCC 291 and Sunil Kr. Sinha v. State of Bihar (2009) 16 SCC 370.

6. In Kashmira Singh (supra) the Appellant had sought bail during the pendency of his appeal in the Supreme Court. While granting him that relief, the Supreme Court observed:

"Now, the practice in this Court as also in many of the High Courts has been not to release on bail a person who has been sentenced to life imprisonment for an offence under section 302 of the Indian penal Code. The question is whether this practice should be departed from and if so, in what circumstances. It is obvious that no practice howsoever sanctified by usage and hallowed by time can be allowed to prevail if it op