ORDER
R. Basant, J.
1. Does the provisions for set off in Section 428 of the Code of Criminal Procedure apply to a sentence imposed for default in payment of compensation under Section 357(3) Cr.P.C as enabled by the dictum in Hari Kishan & State of Haryana v. Sukhbir Singh : 1989CriLJ116 and Suganthi Suresh v. Jagdeeshan : 2002CriLJ1003 Do the words 'not being imprisonment in default of payment of fine' introduced in Section 428 Cr.P.C. by Act 45 of 1978 w.e.f 16.12.1978 take in a sentence of imprisonment in default of payment of compensation? Are deemed fines -not fines stricto senso also included in the sweep of the expression 'fine' in the portion introduced by amendment in 1978? These are the interesting questions that are thrown up for consideration.
2. To the crucially relevant facts first. The petitioner faced indictment in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act. He was found guilty, convicted and sentenced on 29.06.1996. During the pendency of that prosecution, he had undergone imprisonment as an under trial from 02.02.96 to 26.04.96. The learned Magistrate sentenced him to undergo substantive sentence of R.I for a period of 6 months. No fine was imposed. There was no direction for payment of compensation.
3. The petitioner preferred an appeal. In the appeal, the verdict of guilty, conviction and sentence were all confirmed. There was a direction that the learned Magistrate must consider whether the petitioner is entitled for set off for the period of 84 days under Section 428 Cr.P.C. The learned Magistrate, by order dated 16.01.1999, took the view that the petitioner is entitled for set off for the said period of 84 days and that period was liable to be set off against the substantive sentence of imprisonment imposed.
4. The petitioner had challenged the appellate judgment before this Court in a revision petition. In that revision petition, another Bench of this Court, by order dt. 02.08.06, upheld the verdict of guilty and conviction, but indulgently modified the sentence. He was sentenced to undergo imprisonment till rising of court and to pay an amount of Rs. 50,000/- as compensation under Section 357(3) Cr.P.C and in default to undergo S.I for a further period of 3 months.
5. The petitioner did not make the payment. He now faces the prospect of being sent to prison to serve the default sentence. The petitioner has come to this Court now with this petition under Section 482 Cr.P.C for a direction that the period of 84 days that he has spent in prison, may be directed to be set off against the default sentence of S.I for a period of 3 months. Can that be done This is the question to be decided.
6. A look at the law next. Section 428 Cr.P.C was introduced in the 1973 Code with the avowed object of ensuring that persons in custody pending investigation/trial get the opportunity to claim credit for such period of pre trial detention against the sentence of imprisonment imposed. After the introduction of that new provision, disputes arose as to whether such set off can be claimed towards the default sentence imposed. The Supreme Court in B.P. Andre v. Supdt., Central Jail : 1975CriLJ182 considered the question in detail and a two Judge Bench took the view that such set off under Section 428 Cr.P.C is available against a default sentence also. The question appeared to be concluded by that pronouncement.
7. But we find that the Parliament stepped in immediately to take away the benefit of B.P. Andre v. Supdt., Central Jail by a prompt amendment of Section 428 Cr.P.C. I extract below Section 428 Cr.P.C as it now stands. The portion introduced by Act 45 of 1978 w.e.f 18.12.1978 has been underlined below.
Section 428: Period of detention undergone by the accused to be set off against the sentence of imprisonment-Where an accused person has, on conviction, been sentenced to imprisonment for a term [not being imprisonment in default of payment of fine] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
8. The legislative intervention by amendment showed beyond the pale of controversy that the Parliament did not want to extend the benefit of Section 428 Cr.P.C to persons who are obliged to undergo default sentence for non payment of fine. There can be no doubt whatsoever on that aspect after the amendment.
9. We are in this case dealing with not a default sentence for non payment of fine, but only a default sentence for non payment of compensation. It is true that there is no specific provision in the Code of Criminal Procedure which expressly mandates that a default sentence can be imposed for default in payment of compensation. The question was considered by the Supreme Court in Hari Kishan & State of Haryana v. Sukhbir Singh : 1989CriLJ116 (supra) and Suganthi Suresh v. Jagdeeshan : 2002CriLJ1003 (supra) and it is now trite law beyond controversy that such a default sentence can be imposed. I had occasion to consider the question in Ganga v. Lakshmi Ammal and it has been held after detailed discussions that such a default sentence can be imposed for non payment of compensation imposed under Section 357(3) Cr.P.C. The learned Counsel for the petitioner Sri. M. Ajay contends that the law has not been laid down correctly in those decisions and that both the Supreme Court decisions as also the decision of this Court have omitted to take note of an earlier decision of the Supreme Court in Sarwan Singh v. State of Punjab : 1978CriLJ1598 . The counsel laboriously contends that the observation in the latter part of para. 10 of that decision must convey to this Court that both Hari Kishan & State of Haryana v. Sukhbir Singh and Suganthi Suresh v. Jagdeeshan were not correctly decided as they have not adverted to the decision in Sarwan Singh v. State of Punjab. In this case I am not called upon to consider that aspect. Another Bench of this Court had imposed the default sentence and it is not certainly open to me to consider the said contention raised by the learned Counsel for the petitioner. I may however state that it is my opinion that there is nothing in that para. 10 which can militate against the very specific observations in para. 11 of Hari Kishan & State of Haryana v. Sukhbir Singh which declares that 'the Court may enforce the order directing compensation by imposing sentence in default'. The Supreme Court later in Suganthi Suresh v. Jagdeeshan (supra) had further declared in para. 11 that 'the said legal position 'in Hari Kishan & State of Haryana v. Sukhbir Singh would continue to hold the field until it is overruled by a larger Bench of this Court'. Such overruling has not taken place till now. Take note of the submission of the learned Counsel for the petitioner that the view followed in Ganga v. Lakshmi Ammal obliterates the distinction between fines and compensations imposed by criminal courts. The counsel argues that an accused cannot be compelled to undergo default sentence for mere inability to make payment and such a direction would offend the sublime idealism reflected in Article 21 of the Constitution of India. As stated earlier, it is not for me in this case to consider such question in any greater detail as the question does not arise specifically for consideration in the facts of this case.
10. It is evident that a legal fiction is created under Section 431 Cr.P.C for recovery of amounts. Amounts payable as per the orders passed under the Code of Criminal Procedure which are not fines must be deemed to be fines for the purpose of recovery. Section 431 Cr.P.C declares that any money other than fine payable by virtue of any order made under this Code for the recovery of which no provisions is expressly made, shall be recoverable 'as if it were a fine'. Non-fines are deemed to be fines for the purpose of recovery under Section 431 Cr.P.C. A fiction is employed by the Code and that fiction is to ensure that recovery of the amounts directed to be paid under the Code is effected. The Parliament's concern was to ensure that amounts ordered to be recovered are recovered. For this purpose, it was declared that such amounts, though not fines, must be deemed to be fines. The expression 'deemed' is not specifically used. But the words 'as if it were a fine' definitely postulate that such a legal fiction is pressed into service and Courts have got to deem non-fines to be fines for the purpose of recovery.
11. Once the amounts are deemed to be fines, as already held in Ganga v. Lakshmi Ammal, all the incidents of recovery of fines shall follow, not only the methods of recovery under Section 421 Cr.P.C, but also the provisions of Section 30 Cr.P.C as also Sections 64 to 70 of the I.P.C will apply.
12. That takes me to the question whether imposition of default sentence under Section 30 Cr.P.C is only a mode of recovery or is a punishment stricto sensu. The Supreme Court has repeatedly held that default sentence is not punishment or sentence stricto sensu and the imposition of default sentence is only as a mode of enforcement. This aspect was considered in Ganga v. Lakshmi Ammal and specific reference was made to Shantilal v. State of M.P. : 2008CriLJ386 and Kuldip Kaur v. Surinder Singh : 1989CriLJ794 .
13. Imposition of default sentence is not as a punishment, but is only as a mode of recovery. Therefore when Section 431 Cr.P.C employs a fiction which must be pressed into service - of non-fines being deemed to be fines for the purpose of recovery, Section 30 Cr.P.C must certainly apply. If there can be imposition of fine, there can be a default sentence imposed under Section 30 Cr.P.C. It is not necessary to trace such powers to impose a default sentence elsewhere in the Code as Section 30 Cr.P.C gives sufficient authority to impose such sentence. If that be so, default sentence for non-payment of deemed fines can also be imposed under Section 30 Cr.P.C.
14. The learned Counsel Sri. Ajay advances an interesting argument that such deeming is not to be resorted to at the stage of pronouncement of judgment. But such deeming can start only after the judgment is pronounced. If that be so, the deeming will not come into operation when the judgment is pronounced and therefore equating fine and compensation, Section 30 Cr.P.C cannot be invoked at the stage of pronouncement of the judgment. Counsel argues that the deeming under Section 431 Cr.P.C can apply only to the modes of recovery under Section 421 Cr.P.C. Inasmuch as the recovery starts only after pronouncement of judgment, the counsel contends that a default sentence cannot be imposed while pronouncing judgment as the deeming provision has not come into operation at that stage and will come into operation only when there is default in payment of the amount. Interesting though the argument is, I am' unable to agree with that contention, as there is no special stipulation anywhere even in the case of fines which permits imposition of default sentence at the point of pronouncement of judgment. As I have already said, it is not necessary for me, in this case, to finally pronounce on the acceptability of that contention.
15. The fact remains that compensation payable under Section 357(3) Cr.P.C is deemed to be fine for the purpose of recovery. Section 30 Cr.P.C confers on the Court the power to impose a default sentence to facilitate recovery. Thus for the purpose of recovery, fines and compensations are equated by a deeming fiction under Section 431 Cr.P.C.
16. It is trite that a fiction must live so long as the purpose of the fiction continues. In B.P. Andre v. Supdt. Central Jail : 1975CriLJ182 (supra) in para.3, the Supreme Court declares this proposition in the following words:
It is now well settled law that where a legal fiction is created, full effect must be given to it and it should be carried to its logical conclusion.
17. Here the fiction is employed to facilitate recovery. Until recovery is effected, the fiction must continue to hold the field. This question was considered in Saji Kumar v. Soman Pillai : 2006(3)KLT679 and it is observed thus in paras. 8 and 10.
A default sentence can be imposed to enforce compliance with a direction to pay compensation under Section 357(3) Cr.P.C. A direction for payment of compensation under Section 357(3) Cr.P.C can be enforced by a default sentence. Section 431 makes it amply clear that a compensation directed to be paid under Section 357(3) Cr.P.C can also be recovered 'as if it were a fine'. A fiction is created under Section 431 Cr.P.C and the fiction is that though such amounts may not be a fine, it shall be recoverable as if it were a fine. For the purpose of recovery the legislature enacts and introduces a legal fiction. This fiction must be extended logically until its purpose is accomplished. A non-fine is deemed to be a fine for the purpose of recovery. Until recovery is completed, the fiction must continue to live and exist. Having introduced and enacted such statutory fiction, it will be improper, illogical and irrational to give up or discontinue the fiction at any stage before the purpose of the fiction is accomplished, namely, recovery of the amount. Until recovery is completed, I have no hesitation to hold, the deemed fiction must continue. Until then the amount is to be assumed and deemed to be a fine, though actually it is not.
18. It will be apposite in this context to look at the rationale behind the 1978 amendment to Section 428 after B.P. Andre v. Supdt., Central Jail : 1975CriLJ182 (supra) was pronounced. The Parliament was fully aware that there could be persons who may be entitled for set off under Section 428 Cr.P.C for default sentence imposed. The Parliament emphatically declared, notwithstanding the view taken by the Supreme Court In B.P. Andre v. Supdt.. Central Jail, that the benefit of such set off cannot be made available to persons who have to undergo default sentence for non-payment of fine. The Parliament's yearning to ensure that recovery is effected, is reflected clearly in the amended statutory provisions. The mischief which would otherwise have come to exist in the light of the decision in B.P. Andre v. Supdt., Central Tail is sought to be remedied by the amendment to Section 428 Cr.P.C. Recovery has to be effected. When court directs payment of fine and imposes a default sentence, a person cannot avoid the default sentence [imposed primarily for the purpose of ensuring recovery] by advancing a contention that he has already undergone imprisonment. That can be the only rationale to justify the Parliament's conduct of bringing in amendment to take away what the Supreme Court by interpretation had extended to such persons facing the prospect of a default sentence. Fine has to be recovered and that alone justifies the anxiety of the Parliament to deny the benefit of Section 428 Cr.P.C to persons facing a default sentence.
19. It is here that the crucial issue comes. Equating fine and compensation by the deeming fiction under Section 431 Cr.P.C is primarily meant to ensure recovery. If ensuring recovery were the purpose of the deeming fiction, according to me, it would be unreal, irrational and artificial to interpret the expression 'fine' in Section 428 Cr.P.C to exclude non fines deemed to be fines under Section 431 Cr.P.C. The mischief rule of interpretation adumbrated in Heydon's Case must be alertly borne in mind.
20. Interpretation primarily is an attempt and endeavour to ascertain and decode the legislative intention. The golden rule of literal interpretation that the legislature is deemed to have said what it meant and meant what it said has got to be followed. The statute has to be read as a whole and the holistic approach to interpretation cannot be given up. Deeming fiction elsewhere in the Code cannot be ignored or overlooked while attempting to interpret expressions which fall within the sweep of the deeming fiction. The interpreter is not an inanimate entity or a computer. He has to imbibe the motivations of the legislature in introducing sections and subsequent amendments in the light of judicial pronouncements. The reason of reasons and meaning of meanings will have to be ascertained by the interpretator. That is the mandate to the interpreter. Language has its limitation and interpretation is not a mere endeavour in semantics. No legislative draftsman can ever achieve such perfection to employ language that will meet all the myriad fact situations which Courts may later be called upon to interpret. It is here that the role of the interpreter becomes relevant and crucial.
21. In Section 431 Cr.P.C, it is deemed that compensation, a non-fine, will be deemed to be a fine for the purpose of recovery. Default sentence is imposed for nonpayment of compensation like non-payment of fine to ensure recovery. In Section 428 Cr.P.C, by amendment, Parliament clarified that when the purpose is recovery, set off cannot be granted under Section 428 Cr.P.C. I find absolutely no reason to exclude the deemed fines, though not really fines, from the sweep of the expression 'fine' in the amended Section 428 Cr.P.C.
22. It may not be inapposite in this context to note that the Parliament in Section 421 Cr.P.C had made it clear that even if the default sentence is undergone, the defaulter will have to face attempt for recovery provided the fine is to be applied to payment of compensation. That must convey to me and inform me of the greater yearning of the Parliament and its compulsion to ensure that recovery is made of amounts ordered as compensation. If fines imposed were only to go into the coffers of the State, undergoing of the default sentence brings to an end the attempt to recover. But when such payment must go to the victim, the attempt to recover must continue. Particular emphasis is given if such fines are to be applied to payment of compensation under Section 357 Cr.P.C. In such cases, ignoring the fact that the default sentence has already been undergone, the Parliament wants steps for recovery under Section 421 Cr.P.C to continue. This must inform and enlighten the Court of the burning concern of Parliament to ensure that amounts ordered to be paid as compensation are recovered. According to me, it will be artificial, unreal and unreasonable to extend the benefit of Section 428 Cr.P.C to persons who have been sentenced to undergo default sentence for non-payment of compensation, which benefit is not available to those who have defaulted in payment of fine. It is true that in Section 428 Cr.P.C, the Parliament, while bringing in the 1978 amendment, has not specifically said that Section 428 Cr.P.C will not apply to those facing default sentence for non payment of 'deemed fines'. But that was not necessary. Legal fiction employed by deeming must continue to exist until the recovery is accomplished whether repeated or not in Section 428 Cr.P.C. In that view of the matter, I am satisfied, that the word 'fine' appearing in the portion introduced by 1978 amendment must definitely hold within its wings deemed fines under Section 431 Cr.P.C until they are recovered. If that be so, the benefit of Section 428 Cr.P.C cannot be extended to a person facing the prospect of a default sentence for non-payment of compensation.
23. The counsel argues that when it comes to deprivation of liberty by imprisonment for default in payment of compensation, Article 21 of the Constitution must throw light and persuade this Court to make a distinction between 'fine' and 'deemed fines' for the purpose of Section 428 Cr.P.C. The counsel contends that the court cannot lightly assume that the Parliament when it said 'fine' and did not say 'deemed fines', the omission was not of consequence. When it concerns the right to liberty of the individual, informed by the sublimity of Article 21 of the Constitution, a view in favour of a person who is likely to be deprived of his liberty, may be taken and an interpretation advancing personal liberty may be accepted, it is contended. I am unable to agree. The primary purpose of the deeming fiction under Section 431 Cr.P.C is to ensure recovery.
24. After the decision in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. : 2007CriLJ2417 and a line of decisions which preceded it, it is trite that compensation can be fixed and awarded by a criminal court after taking into account not only the entitlement of the victim, but also the capacity of the offender to pay the amount. It is after entertaining the requisite twin satisfactions - that the victim is entitled to get the amount and the offender has the capacity to pay the amount, that a court can choose to impose a direction for payment of compensation. It is such compensation that remains unpaid and the imprisonment is imposed only as a measure or mode of recovery of such compensation. I am afraid that with the help of Article 21 of the Constitution, a distinction cannot be made in the interpretation of Section 428 Cr.P.C between fines and compensations. The direction for payment of compensation has become final without challenge. It is evident or it must certainly be presumed now that the petitioner has the capacity to pay the amount and it is for non-payment of such amount that he faces the prospect of a sentence of imprisonment.
25. The counsel contends that the plight of the petitioner, who was compelled to remain in prison for 84 days, may not be lost sight of. The counsel argues relying on the decision of the U.S's Supreme Court in William E. Williams v. State of Illinois A.I.R 1971 SC 63 that a law, which may be constitutional, may in its operation against an individual and in a given set of circumstances may have to be construed to be violative of the fundamental rights. The mere fact that the petitioner has been compelled to undergo imprisonment for whatever reason pending trial does not persuade me to hold that the ultimate direction for payment of compensation and the consequent default sentence imposed is unjustified or unconstitutional even when it is tested in the wake of Article 21 of the Constitution of India. It would not be unreasonable now to conclude that the learned Judge who in Revision had imposed the modified sentence was conscious of the need to save the petitioner of the obligation to undergo any further substantive sentence of imprisonment but wanted to protect the interest of the complainant by issue of direction for payment of compensation and a default sentence. That order in its operation against the petitioner also does not according to me, offend the right guaranteed under Article 21 of the Constitution of India.
26. It follows from the above discussions that the petitioner is not entitled for set off under Section 428 Cr.P.C. If the petitioner does not pay the amount before he is taken into custody, he shall have to undergo the default sentence. Sections 68 and 69 of the I.P.C make it very clear that at any time before or during the suffering of the default sentence, the petitioner can pay the fine/ deemed fine and claim to be released from prison.
This Crl.M.C is, in these circumstances, dismissed.