Lingaiah vs The State of Karnataka

K. Sreedhar Rao, J.—In both the appeals the Appellants stood surety for the accused. The accused absconded. Surety bonds are forfeited, penalty of Rs. 20,000/- is levied in each case and in defalt the trial Court directed three months imprisonment.

The provisions of Section 431 Code of Criminal Procedure reads thus:

431 Money ordered to be paid recoverable as a fine.- Any money (other than a fine) payable by virtue of any order made under this code and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine:

Provided that Section 421 shall, in its application to an order u/s 359, by virtue of this section, be construed as if in the proviso to Sub-section (1) of Section 421, after the words and figures "under Section 357", the words and figures "or an order for payment of costs u/s 359" had been inserted.

The above provisions declare that any money payable other than fine shall be recovered as it were a fine u/s 421 Code of Criminal Procedure The relevant portion of Section 421 Code of Criminal Procedure is extracted hereunder:

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 fine in either or both of the following ways, that is to say, it may-

(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 u/s 357.

(2) The State Government may make rules regulating the manner in which warrants under Clause (a) of Sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant.

(3) Where the Court issues a warrant to the Collector under Clause (b) of Sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law:

Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.

(Emphasis supplied)

Section 421 Code of Criminal Procedure declares that only in case where Court directs payment of fine and in default to suffer sentence of imprisonment, the alternative sentence of imprisonment could be enforced. But in case of recovery of penalties or recovery of money other than sentence of fine, the Court has no jurisdiction to direct the alternative punishment of imprisonment. It is only through attachment and sale of movable property, the fine amount may be recovered in law. In the instant case, the alternative order of imprisonment for a period of three months in default to pay penalty is to be set aside. Accordingly, the appeal is allowed as indicated above.