Fine, and Imprisonment in Default

Sub-section (5): the ceiling where the offence is punishable with fine or community service only. The default imprisonment shall be simple, and shall not exceed two months where the fine does not exceed five thousand rupees, four months where it does not exceed ten thousand rupees, and one year in any other case.

Sub-section (6): the default term ends when the fine is paid. Imprisonment imposed in default terminates whenever the fine is paid or levied by process of law. And if part is paid, the imprisonment terminates as soon as the term suffered is proportionate to the part still unpaid. The Sanhita gives its own illustration and it is worth working through.

Sub-section (7): the fine may be levied within six years, or within the term of imprisonment if that is longer, and the offender's death does not discharge property that would after death be liable for their debts.

The Sanhita's own worked example

Section 8(6) carries this illustration, and reproducing the arithmetic is the fastest way to understand the proportionality rule.

A is fined one thousand rupees with four months' imprisonment in default.

The rule behind the table: the term served must be at least proportionate to the part of the fine still unpaid. Three quarters of the fine paid leaves one quarter, and one quarter of four months is one month. Half paid leaves half, and half of four months is two months.

A second worked example, on the ceiling

Meera is convicted of an offence punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The court sentences her to six months' rigorous imprisonment and a fine of forty thousand rupees.

What is the maximum default term? The offence is punishable with imprisonment as well as fine, so sub-section (3) applies. One fourth of the maximum fixed for the offence, which is two years, is six months.

Note what the fraction is taken of. It is one fourth of the maximum the offence carries, not one fourth of the sentence actually passed. A court that took one fourth of the six months awarded would be applying the wrong rule.

When does the default term run? After the six months' substantive sentence, because sub-section (2) says the default imprisonment is in excess of any other imprisonment.

If she pays half the fine after serving two months of the default term? Half the fine remains, and half of six months is three months. She must complete three months of default imprisonment.

The recovery of a fine

Sections 461 to 464 of the Bharatiya Nagarik Suraksha Sanhita 2023 provide the machinery.

Section 461 allows the court passing the sentence to issue a warrant for the levy of the amount by attachment and sale of the offender's movable property, or a warrant to the Collector to realise the amount as arrears of land revenue.

Section 462 protects the person who buys under the warrant.

Section 464 allows a court to suspend the execution of a sentence of imprisonment in default and to release the offender on a bond to appear and pay, and to allow payment by instalments.

Section 464 is the provision that stands between a poor offender and a prison cell, and it is very rarely used. Mentioning it separates a good answer from an ordinary one.

What beginners get wrong

They think default imprisonment is a punishment for the offence. It is not. It is a means of enforcing the fine, which is why it ends the moment the fine is paid. That is also why it runs in excess of the substantive sentence rather than concurrently with it.

They think the default term counts as part of the sentence for remission. It does not, and a prisoner serving default imprisonment is in a different position from one serving a substantive sentence.

They take the fraction from the sentence awarded. Sub-section (3) takes it from the maximum fixed for the offence.

They think an unlimited fine means any fine. Section 8(1) says unlimited but not excessive, and an excessive fine is a ground of appeal.

Criticism

The fine as Indian law administers it discriminates by wealth, and the default mechanism turns that discrimination into imprisonment. A fine the offender cannot pay is a sentence of imprisonment imposed without the court ever deciding that imprisonment was the right sentence.

Two answers exist elsewhere. The day fine, used in Scandinavia and Germany, fixes the fine as a number of days' income, so that the same number of units is the same punishment for rich and poor. And community service in default of payment, which several systems allow, avoids imprisonment altogether. India has now added community service to the list of punishments, and section 8(4) and (5) of the Sanhita already contemplate default of community service, so the second reform is closer than it was.

A worked example

Anil is convicted of an offence punishable with imprisonment for up to four years and a fine. The court fines him twelve thousand rupees and orders three months' imprisonment in default.

Is the default term lawful? The offence is punishable with imprisonment as well as fine, so section 8(3) of the Bharatiya Nyaya Sanhita 2023 applies: the default term may not exceed one fourth of the maximum term fixed for the offence. One fourth of four years is one year, so three months is within the cap.

Suppose instead the offence carried a fine only. Then section 8(5) would apply, the default imprisonment would have to be simple, and on a fine of twelve thousand rupees the cap would be one year, the top slab, because the fine exceeds ten thousand.

Anil pays nothing and is taken into custody. After six weeks his family pays nine thousand rupees. Under section 8(6)(b) the imprisonment terminates when the proportion of the fine paid is at least proportional to the term already served. Three quarters of the fine has been paid and half the term served, so he is discharged.

Suppose he serves the whole three months. Under the proviso to section 461(1) of the Bharatiya Nagarik Suraksha Sanhita 2023 no court shall then issue a warrant to levy the fine, unless for special reasons recorded in writing it considers it necessary, or unless it has ordered payment of compensation out of the fine under section 395.

And if the court had ordered compensation to a victim out of the fine? Then the exception applies and the fine may still be levied, by attachment and sale of movable property or by a warrant to the Collector, which may not be executed by arresting him.

Quick revision

• Fine is section 4(e) of the Bharatiya Nyaya Sanhita 2023, governed by section 8.
• Where no sum is expressed the fine is unlimited but shall not be excessive: section 8(1).
• Default imprisonment is in excess of any other sentence: section 8(2).
• Ceiling where the offence carries imprisonment and fine: one fourth of the maximum for the offence, section 8(3).
• Ceiling where the offence carries fine or community service only: simple imprisonment, two months up to a fine of five thousand rupees, four months up to ten thousand, one year otherwise, section 8(5).
• Default imprisonment ends on payment, and proportionately on part payment: section 8(6).
• The fine is recoverable for six years and death does not discharge the property: section 8(7).
• Recovery machinery: sections 461 to 464 of the Bharatiya Nagarik Suraksha Sanhita 2023. Section 464 allows suspension and instalments.

Test yourself

1. An offence is punishable with imprisonment up to three years, or fine, or both. The court awards one year and a fine of fifty thousand rupees. What is the maximum default term? Nine months. Section 8(3) fixes the maximum at one fourth of the term of imprisonment which is the maximum for the offence, and one fourth of three years is nine months. The fraction is taken from the statutory maximum, not from the one year actually awarded.

2. An offence is punishable with fine only. The fine imposed is eight thousand rupees. What default term may be awarded? Simple imprisonment not exceeding four months, under section 8(5)(b), because the fine does not exceed ten thousand rupees. Section 8(5) requires the default imprisonment to be simple in such a case.

3. A is fined two thousand rupees with eight months' imprisonment in default. After three months he pays one thousand rupees. What follows? Half the fine remains unpaid, and half of eight months is four months. He must serve four months in all, so he remains in custody for one further month and is then discharged. This follows from section 8(6)(b), which requires the term suffered to be at least proportionate to the part of the fine still unpaid.

4. Why is default imprisonment not a punishment for the offence? Because it is a means of enforcing payment. Section 8(6)(a) provides that it terminates whenever the fine is paid or levied by process of law, which no punishment for an offence would do, and section 8(2) makes it run in excess of any substantive sentence rather than as part of it.

5. Give the standard criticism of the fine and one reform that answers it. The same fine is a different punishment for a rich and a poor offender, and the default mechanism converts the poor offender's inability to pay into imprisonment that the court never decided was appropriate. The day fine, which expresses the penalty as a number of days' income, answers it by making the burden equal; and providing community service rather than imprisonment in default answers the second half.