SHARAD HIRU KOLAMBE versus STATE OF MAHARASHTRA AND OTHERS

[2018] 11 S.C.R.

SHARAD HIRU KOLAMBE

STATE OF MAHARASHTRA AND OTHERS

(Criminal Appeal No. 1209 of 2018)

SEPTEMBER 20, 2018

[ABHAY MANOHAR SAPRE ANDUDAY UMESH LALIT, JJ.]

Sentence/Sentencing:

CDefault sentence – Nature of – Appellant-accused convictedu/ss. 364A, 395, 397 and 387 of IPC and u/ss.3(1)(ii), 3(2) and3(4) of Maharashtra Control of Organised Crime Act (MCOCA),1999 – Alongwith sentence of imprisonment, he was imposed fineof Rs.15,04,000/- under various counts of punishment – Defaultsentence was cumulatively 10 years – State Government in exerciseDof power u/ss. 432 and 433 Cr.P.C., directed release of the appellant-accused on completion of 14 years of actual sentence – Since theaccused did not pay the fine amount, was undergoing sentence indefault – Plea either to direct the default sentence to runconcurrently or to reduce the default sentence to the one alreadyEundergone – Held: In view of provisions under ss. 63 and 64 ofIPC and under ss. 30, 429 and 428 Cr.P.C., default sentence is inaddition to the substantive sentence and hence both the sentencescannot be merged or allowed to run concurrently – In case ofsubstantive sentences court has discretion to decide whether it wouldrun concurrently or substantively – However, such discretion is notFavailable in case of default sentence – Default sentence also cannotbe directed to run concurrently inter se – However, considering thefinancial condition of the appellant-accused, quantum of defaultsentence needs sympathetic consideration – There is nothing wrongwith fine amount imposed – However, imposition of default sentenceGis on higher scale – Therefore, the default sentence on the fourcounts of offences under IPC are reduced on one month each i.e.four months – The default sentence on the three counts of offencesunder MCOCA are reduced from three years each to one year each– Resultantly default sentence would be three years four months inaggregate – Penal Code, 1860 – ss. 63 & 64 and ss.364(A), 395,H

397 and 387 – Code of Criminal Procedure, 1973 – ss. 30, 31, 421,427, 428 and 429 – Maharashtra Control of Organised Crime Act,1999 – ss. 3(1)(ii), 3(2) and 3(4).

Code of Criminal Procedure, 1973:

ss.31 and 427 – Consecutive and concurrent running ofsentences – Held: Normal rule is that punishment would commenceone after the expiration of the other – ss. 31 and 427 providesdiscretion to the Court to specify whether the substantive sentencesshould run concurrently or consecutively – Sentence/Sentencing.

Allowing the appeal, the Court

HELD: 1. Section 63 of IPC generally lays down that fineshould not be excessive wherever no sum is expressed to whichthe fine may extend. Naturally, in cases where the concernedprovision itself indicates sum to which the fine may extend, orprescribes minimum quantum of fine, such element may notapply. In cases covered by Section 64 of IPC the Court iscompetent to impose sentence of “imprisonment for non-paymentof fine” and such sentence for non-payment of fine “shall be inexcess of any imprisonment” to which the offender may havebeen sentenced or to which he may be liable under commutationof sentence. [Para 9] [732-D-E]2. Sections 30 and 429(2) of the Cr.P.C. also touch uponthe principle that default sentence shall be in addition tosubstantive sentence. In terms of Section 30(2) the defaultsentence awarded by Magistrate is not to be counted whileconsidering the maximum punishment that can be substantivelyawarded by the Magistrate, while under Section 429(2), in caseswhere two or more substantive sentences are to be undergoneone after the other, the default sentence, if awarded, would notbegin to run till the substantive sentences are over. Similarly,under Section 428 of the Cr.P.C., the period undergone duringinvestigation, inquiry or trial has to be set off against substantivesentence but not against default sentence. The idea is thus clear,that default sentence is not to be merged with or allowed to runconcurrently with substantive sentence. Thus, the sentence ofimprisonment for non-payment of fine would be in excess of or inaddition to the substantive sentence to which an offender may

Ahave been sentenced or to which he may be liable undercommutation of sentence. [Para 9] [732-E-H; 733-A]

3. Sections 31 and 427 of Cr.P.C. speak of consecutive andconcurrent running of sentences. Section 31 deals with caseswhere person is convicted at one trial of two or more offences.BThe normal principle is that the punishments would commenceone after the expiration of the other. Sections 31 and 427 of Cr.P.C.deal with discretion available to the Court to specify whether thesubstantive sentences should run concurrently or consecutively.[Para 10] [733-A-C]

CV.K. Bansal v. State of Haryana and Another (2013) 7SCC 211 : [2013] 7 SCR 617 – referred to.

4. As against Sections 31 and 427 of Cr.P.C. which dealwith substantive sentences and empower the courts in certaincases to direct concurrent running of more than one sentences,Dno such specification is available in Section 64 of IPC and inSection 30 of Cr.P.C. or in any other provision dealing with powerto impose sentence of “imprisonment for non-payment of fine”or in connection with default sentence as is normally known.[Para 11] [733-G-H; 744-A]

EShantilal v. State of M.P. (2007) 11 SCC 243 : [2007]10 SCR 727 – referred to.

5. If the term of imprisonment in default of payment of fineis penalty which person incurs on account of non-payment offine and is not sentence in strict sense, imposition of such defaultsentence is completely different and qualitatively distinct from aFsubstantive sentence. It is not the case of the appellant thatdefault sentences awarded to him must run concurrently withsubstantive sentence imposed on him. His case is that all defaultsentences must inter se run concurrently. Imposition of fine,especially when certain minimum quantum is prescribed and/orGmandatory imposition of fine is contemplated, has somesignificance. Theoretically, if the default sentences awarded inrespect of imposition of fine in connection with two or moreoffences are to be clubbed or directed to run concurrently, therewould not be any occasion for the persons so sentenced to deposit

the fine in respect of the second or further offences. It wouldeffectively mean imposition of one single or combined sentenceof fine. Such an exercise would render the very idea of impositionof fine with deterrent stipulation while awarding sentence indefault of payment of fine to be meaningless. [Para 13] [734-G-H; 735-A-C]

6. In the present case, in respect of three distinct offencespunishable under the provisions of the MCOC Act, fine came tobe imposed. Such fine going by the relevant provisions had to beat minimum scale of Rs.5 lakhs. If the default sentences awardedin respect of each of those three counts under the MCOC Actare directed to run concurrently, the accused may not be inclinedto deposit fine in respect of two out of those three counts. Ifimposition of fine and prescription of mandatory minimum isdesigned to achieve specific purpose, the very objective willget defeated if the default sentences were directed to runconcurrently. It is precisely for this reason that unlike Sections31 and 427 of the Cr.P.C., which specifically empower theconcerned court to direct concurrent running of substantivesentences, Section 64 of the IPC does not stipulate suchdiscretion. The language of Section 64 of IPC rather mandatesthat the sentence awarded for non-payment of fine “imprisonmentshall be in excess of any other imprisonment to which he mayhave been sentenced or to which he may be liable under acommutation of sentence”. Similar is the intent in Sections 30,428 and 429(2) of the Cr.P.C. The rigour of the provisions issuch that even if person gets the benefit of commutation of asentence, the sentence in default of payment of fine shall be inexcess or in addition. Default sentences, inter se, cannot bedirected to run concurrently. [Paras 13 and 15] [735-C-G; 736-G]

Donatus Tony Ikwanusi v. The Investigating Officer,NCB (2013) 1 MWN (Cr.) 175 (FB); Emperor v. SubraoSesharao AIR (1926) Bom. 62; P. Balaraman v. State(1990) MLJ (Cri) 534; Shantilal v. State of M.P. (2007)11 SCC 243 : [2007] 10 SCR 727; ShahejadkhanMahebubkhan Pathan v. State of Gujarat (2013) 1 SCC570 : [2012] 8 SCR 1177 – referred to.

724SUPREME COURT REPORTS

A7. However, considering the financial condition of theappellant, case is certainly made out to have sympatheticconsideration about the quantum of default sentence. Thequantum of fine imposed in the present case in respect of offencespunishable under Sections 364A, 395, 397 and 387 of the IPC isnot excessive and is quite moderate. However, the defaultBsentence for non-payment of such fine, ought to be reduced tothe level of one month on each of those four counts in respect ofthe appellant. So far as the imposition of fine and default sentencesfor the offences punishable under Sections 3(1)(ii), 3(2) and 3(4)of the MCOC Act, are concerned, the text of these Sections showsCthat these provisions contemplate, upon conviction, mandatoryminimum fine of Rs.5 lakhs on each count. There is nothing wrongwith the imposition of fine of Rs.5 lakhs in respect of each ofthose three counts under the MCOC Act. However, impositionof default sentences of three years is slightly on higher scale.

Therefore, the default sentence is reduced to period of oneDyear each in respect of these three counts of offences under theMCOC Act. Resultantly, while maintaining the quantum of fine,in respect of four counts of offences punishable under the IPCcumulatively at Rs.4000/-, the aggregate default sentence shallbe four months; and in respect of three counts of offencesEpunishable under the MCOC Act the fine shall be Rs.15 lakhscumulatively with default sentence of three years in aggregate.Even if no amount of fine is paid by the appellant, the total defaultsentence for the appellant would thus be three years and fourmonths, out of which three years of default sentence has alreadybeen undergone by the appellant. [Paras 15, 16 and 17] [736-G-FH; 737-A-E]

Palaniappa Gounder v. State of Tamil Nadu and Others(1977) 2 SCC 634 : [1977] 3 SCR 132 – referred to.

SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRAAND OTHERS

AIR (1926) Bom. 62referred toPara 14(1990) MLJ (Cri) 534referred toPara 14

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1209 of 2018

From the Judgment and Order dated 17.12.2013 of the High Courtof Judicature at Bombay in Criminal Appeal No. 906 of 2006

Colin Gonsalves, Sr. Adv., Ms. Parijata Bhardwaj, K. PaariVendhan, Advs. for the appellant.

Nishant R. Katneshwarkar, Adv. for the respondent.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J.

1. Delay in filing Special Leave Petition condoned. Leave granted.

2. This appeal challenges the decision dated 17.12.2013 passedby the High Court of Bombay in Criminal Appeal No.906 of 2006affirming the conviction and sentence of the appellant (original accusedNo.6) for offences punishable under the Indian Penal Code (IPC, forshort) as well as the Maharashtra Control of Organised Crime Act, 1999(hereinafter referred to as the MCOC Act). Since the emphasis in thepresent appeal was placed on the nature of default sentences passedagainst the appellant, we confine ourselves to bare outline of facts. Theappellant along with other co-accused was tried and convicted by theSpecial Judge [the MCOC Act] Thane in M.C.O.C. Special Case No.3of 2002 vide judgment dated 20.10.2005. The relevant portion of theorder of sentence passed by the Special Judge reads as under:-

“Accused Nos.1 to 6 namely, Sanjay Kisan Mohite, SudishManiken, Maniken Nair, Pramod Shankar Jadhav, SantoshManohar Deshmukh, Chandrakant Balkrishna Shegde and SharadHiru Kolambe are convicted for offence punishable under Section364A of Indian Penal Code read with Section 34 of the IndianPenal Code and sentenced to suffer life imprisonment and to payfine of Rs.1,000/- each. In default to suffer imprisonment forthree months.

The accused Nos.1 to 6 are convicted for offence punishableunder Section 395 of Indian Penal Code and sentenced to sufferimprisonment for seven years and to pay fine of Rs.1,000/- each.

AIn default, to suffer imprisonment for three months.

The accused Nos.1 to 6 are convicted for offence punishableunder Section 397 of Indian Penal Code and sentenced to sufferimprisonment for seven years and to pay fine of Rs.1,000/- each.In default, to suffer imprisonment for three months.

The accused Nos.1 to 6 are convicted for offence punishableunder Section 387 of Indian Penal code read with Section 34 ofthe Indian Penal Code and sentenced to suffer imprisonment forfive years and to pay fine of Rs.1,000/- each. In default, to sufferimprisonment for three months.

The accused Nos.1 to 6 are convicted for offence punishableunder Section 342 of Indian Penal Code read with Section 34 ofthe Indian Penal code and sentenced to suffer imprisonment forone year.

The accused Nos.1 to 6 are convicted for offence punishableDunder Section 3(1)(ii) of Maharashtra Control of Organised CrimeAct and sentenced to suffer imprisonment for ten years and topay fine of Rs.5,00,000/- (Rupees Five lacs) each. In default, tosuffer imprisonment for three years.

The accused Nos.1 to 6 are convicted for offence punishableEunder Section 3(2) of Maharashtra Control of Organised CrimeAct and sentenced to suffer imprisonment for ten years and topay fine of Rs.5,00,000/- (Rupees Five Lacs) each. In default, tosuffer imprisonment for three years.

The accused Nos.1 to 6 are convicted for offence punishableFunder Section 3(4) of Maharashtra Control of Organised CrimeAct and sentenced to suffer imprisonment for ten years and topay fine of Rs.5,00,000/- (Rupees Five Lacs) each. In default, tosuffer imprisonment for three years.

All the sentences shall run concurrently.GThe accused persons are entitled for set off under Section 428 ofthe Criminal P.C. for pretrial detention period.

Accused No.7 Avinash Shrikrishna Dugad and accused No.8Tanaji Nanu Birade are acquitted of all the offences.

Their bail bonds stand cancelled.”H

3. The decision so rendered by the Special Judge was questionedby all the convicted accused by filing criminal appeals in the High Courtof Bombay. The High Court by its judgment and order under appeal setaside the conviction and sentence of original accused No.5. It, however,dismissed all the other appeals. The conviction and sentence in so far asthe appellant is concerned thus stood affirmed.

4. It may be mentioned that the appellant was arrested on26.08.2001 and was never released during the trial as well as during thependency of the appeal. He thus completed 14 years of actual sentenceon 25.08.2015. By order dated 04.03.2017 passed by the Governmentof Maharashtra in exercise of powers conferred under Sections 432 and433 of Criminal Procedure Code (hereinafter referred to as the Code),the appellant was directed to be released on completion of 14 years ofactual sentence. However, since the appellant has not paid the amountof fine as directed, he is presently undergoing the sentence in default asawarded by the Courts below. It must further be mentioned that on03.06.2017, the District Probation Officer, District Women and ChildWelfare Department, Raigad, Alibaug submitted Home Inquiry Reportwherein it was noted that the appellant’s family was in state ofstarvation.

5. In the aforesaid factual context, Mr. Colin Gonsalves, learnedSenior Counsel appearing for the appellant advanced followingsubmissions:-

a. The cumulative fine imposed upon the appellant under variouscounts of punishment was Rs.15,04,000/- and the default sentence incase of non-payment was cumulatively 10 years. For person whosefamily was reduced to state of starvation, it was impossible to depositpayment of fine as directed. Resultantly, the appellant would have tosuffer default sentence of 10 years. Though the substantive sentencestood remitted and the appellant was directed to be released on completionof 14 years of actual sentence, the appellant would still be inside till hecompletes 24 years.

b. Since the trial court had directed “all sentences shall runconcurrently”, all default sentences must also run concurrently inter se.Thus the maximum default sentence would be 3 years and not 10 years.

c. In the present case the default sentences so directed would beunconscionable and excessive.

AHe thus submitted that either default sentences be directed to runconcurrently or the default sentences be reduced to the one alreadyundergone and the appellant be set at liberty. The learned Senior Counselrelied on the decisions of this court rendered in Palaniappa Gounder v.State of Tamil Nadu and Others[1], Shantilal v. State of M.P.[2] andShahejadkhan Mahebubkhan Pathan v. State of Gujarat[3] in whichBthis Court after considering the standing of the person, nature of crimeand the financial capacity had reduced the quantum of default sentence.

6. Mr. Nishant R. Katneshwarkar, learned Counsel appearing forState of Maharashtra however relied upon certain observations madeby this Court in V.K. Bansal v. State of Haryana and Another[4]and aCdecision of the Full Bench of Madras High Court in case of Donatus

Tony Ikwanusi v. The Investigating Officer, NCB[5]to submit thatdefault sentences for non-payment of fine could not be ordered to runconcurrently. The learned Counsel however fairly submitted thatconsidering the financial capacity of the appellant, the quantum of defaultDsentences under each of the counts could certainly be reduced as this

Court may deem appropriate.

7. Sections 63 and 64 of the IPC; Sections 30, 31, 421, 427, 428and 429 of the Code which provisions have bearing on the presentcontroversy, are quoted hereunder:-EIndian Penal Code

“63. Amount of fine.- Where no sum is expressed to which finemay extend, the amount of fine to which the offender is liable isunlimited, but shall not be excessive.

64. Sentence of imprisonment for non-payment of fine.— In everyFcase, of an offence punishable with imprisonment as well as fine,in which the offender is sentenced to fine, whether with orwith-out imprisonment,

and in every case of an offence punishable with imprisonmentor fine, or with fine only, in which the offender is sentenced to aGfine,

1 (1977) 2 SCC 6342 (2007) 11 SCC 2433 (2013) 1 SCC 5704 (2013) 7 SCC 2115 (2013) 1 MWN (Cr.) 175 (FB)H

it shall be competent to the Court which sentences suchoffender to direct by the sentence that, in default of payment ofthe fine, the offender shall suffer imprisonment for certain term,in which imprisonment shall be in excess of any other imprisonmentto which he may have been sentenced or to which he may beliable under commutation of sentence.”

Code of Criminal Procedure

“30. Sentence of imprisonment in default of fine.

(1) The Court of Magistrate may award such term ofimprisonment in default of payment of fine as is authorised bylaw: Provided that the term-

(a) is not in excess of the powers of the Magistrate underSection 29;

(b) shall not, where imprisonment has been awarded as partof the substantive sentence, exceed one-fourth of the term ofimprisonment which the Magistrate is competent to inflict aspunishment for the offence otherwise than as imprisonment indefault of payment of the fine.

(2) The imprisonment awarded under this Section may be inaddition to substantive sentence of imprisonment for the maximumterm awardable by the Magistrate under Section 29.

31. Sentence in cases of conviction of several offences at onetrial.

(1) When person is convicted at one trial of two or moreoffences, the Court may, subject to the provisions of Section 71 ofthe Indian Penal Code (45 of 1860), sentence him for suchoffences, to the several punishments prescribed therefor whichsuch Court is competent to inflict; such punishments whenconsisting of imprisonment to commence the one after theexpiration of the other in such order as the Court may direct,unless the Court directs that such punishments shall runconcurrently.

(2) In the case of consecutive sentences, it shall not benecessary for the Court by reason only of the aggregate punishmentfor the several offences being in excess of the punishment which

it is competent to inflict on conviction of single offence, to sendthe offender for trial before higher Court: Provided that-

(a) in no case shall such person be sentenced to imprisonmentfor longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amountof punishment which the Court is competent to inflict for asingle offence.

(3) For the purpose of appeal by convicted person, theaggregate of the consecutive sentences passed against him underthis Section shall be deemed to be single sentence.

427. Sentence on offender already sentenced for another offence.

(1) When person already undergoing sentence ofimprisonment is sentenced on subsequent conviction toimprisonment or imprisonment for life, such imprisonment orimprisonment for life shall commence at the expiration of theimprisonment to which he has been previously sentenced, unlessthe Court directs that the subsequent sentence shall runconcurrently with such previous sentence:

Provided that where person who has been sentenced toimprisonment by an order under Section 122 in default of furnishingsecurity is, whilst undergoing such sentence, sentenced toimprisonment for an offence committed prior to the making ofsuch order, the latter sentence shall commence immediately.

(2) When person already undergoing sentence ofimprisonment for life is sentenced on subsequent conviction toimprisonment for term or imprisonment for life, the subsequentsentence shall run concurrently with such previous sentence.428. Period of detention undergone by the accused to be set offagainst the sentence or imprisonment.–

Where an accused person has, on conviction, been sentencedto imprisonment for term, not being imprisonment in default ofpayment of fine, the period of detention, if any, undergone by himduring the investigation, inquiry or trial of the same case and beforethe date of such conviction, shall be set off against the term ofimprisonment imposed on him on such conviction, and the liability

of such person to undergo imprisonment on such conviction shallbe restricted to the remainder, if any, of the term of imprisonmentimposed on him.

429. Saving.

(1) Nothing in Section 426 or Section 427 shall be held toexcuse any person from any part of the punishment to which he isliable upon his former or subsequent conviction.

(2) When an award of imprisonment in default ofpayment of fine is annexed to substantive sentence ofimprisonment and the person undergoing the sentence is after itsexecution to undergo further substantive sentence or furthersubstantive sentences of imprisonment, effect shall not be givento the award of imprisonment in default of payment of the fineuntil the person has undergone the further sentence or sentences.”

8. Section 3 of the MCOC Act is also quoted, under three countsof which the appellant was convicted and sentenced :-

“3. Punishment for organised crime-

(1) Whoever commits an offence of organised crime shall.-

(i) if such offence has resulted in the death of any person, bepunishable with death or imprisonment for life and shall also beliable to fine, subject to minimum fine of rupees one lac;

(ii) in any other case, be punishable with imprisonment for termwhich shall not be less than five years but which may extend toimprisonment for life and shall also be liable to fine, subject to aminimum fine of rupees five lacs.

(2) Whoever conspires or attempts to commit or advocates, abetsor knowingly facilitates the commission of an organised crime orany act preparatory to organised crime, shall be punishable withimprisonment for term which shall be not less than five yearsbut which may extend to imprisonment for life, and shall also beliable to .fine, subject to minimum fine of rupees five lacs.

(3) Whoever harbours or conceals or attempts to harbour orconceal, any member of an organised crime syndicate; shall bepunishable with imprisonment for term which shall not be less

Athan five years but which may extend to imprisonment for life,and shall also be liable to fine, subject to minimum fine ofrupees five lacs.

(4) Any person who is member of an organised crime syndicateshall be punishable with imprisonment for term which shall notBbe less than five years but which may extend to imprisonment forlife and shall also be liable to fine, subject to minimum fine ofrupees five lacs.

(5) Whoever holds any property derived or obtained fromcommission of an organised crime or which has been acquiredCthrough the organised crime syndicate funds shall be punishablewith term which, shall not be less than three years but whichmay extend to imprisonment for life and shall also be liable to fine,subject to minimum fine of rupees two lacs.”

9. Section 63 of IPC generally lays down that fine should not beDexcessive wherever no sum is expressed to which the fine may extend.Naturally, in cases where the concerned provision itself indicates sumto which the fine may extend, or prescribes minimum quantum of fine,such element may not apply. In cases covered by Section 64 of IPC theCourt is competent to impose sentence of “imprisonment for non-paymentof fine” and such sentence for non-payment of fine “shall be in excessEof any imprisonment” to which the offender may have been sentencedor to which he may be liable under commutation of sentence. Sections30 and 429(2) of the Code also touch upon the principle that defaultsentence shall be in addition to substantive sentence. In terms of saidSection 30(2) the default sentence awarded by Magistrate is not to be

Fcounted while considering the maximum punishment that can besubstantively awarded by the Magistrate, while under Section 429(2), incases where two or more substantive sentences are to be undergoneone after the other, the default sentence, if awarded, would not begin torun till the substantive sentences are over. Similarly, under Section 428of the Code, the period undergone during investigation, inquiry or trialGhas to be set off against substantive sentence but not against defaultsentence. The idea is thus clear, that default sentence is not to be mergedwith or allowed to run concurrently with substantive sentence. Thus,the sentence of imprisonment for non-payment of fine would be in excessof or in addition to the substantive sentence to which an offender may

have been sentenced or to which he may be liable under commutation ofa sentence.

10. There are two provisions in the Code namely Sections 31 and427 which speak of consecutive and concurrent running of sentences.Section 31 deals with cases where person is convicted at one trial oftwo or more offences. The reading of Section 31 makes it clear thatunless the Court directs that punishments for such two or more offencesat same trial should run concurrently, the normal principle is that thepunishments would commence one after the expiration of the other. Theprovision thus gives discretion to the Court to direct running of suchpunishments either concurrently or consecutively. Similar discretion isavailable in Section 427 which deals with cases where person alreadyundergoing sentence is later imposed sentence in respect of an offencetried at subsequent trial. These two provisions namely Sections 31 and427 thus deal with discretion available to the Court to specify whetherthe substantive sentences should run concurrently or consecutively. Inthe context of exercise of power under Section 427 of the Code, ourattention was invited by the learned Counsel appearing for State ofMaharashtra to certain observations made by this Court in V.K. Bansal(supra). Even while granting the benefit of concurrent running of thesubstantive sentences in respect of offences arising out of distincttransactions, this Court made certain observations regarding non-applicability of such benefit to sentences in default of fine, in para 18 asunder :-“….We make it clear that the direction regarding concurrent runningof sentence shall be limited to the substantive sentence only. Thesentence which the appellant has been directed to undergo indefault of payment of fine/compensation shall not be affected bythis direction. We do so because the provisions of Section 427CrPC do not, in our opinion, permit direction for the concurrentrunning of the substantive sentences with sentences awarded indefault of payment of fine/compensation.”

11. As against Sections 31 and 427 of the Code which deal withsubstantive sentences and empower the courts in certain cases to directconcurrent running of more than one sentences, no such specification isavailable in Section 64 of IPC and in Section 30 of the Code or in anyother provision dealing with power to impose sentence of “imprisonment

Afor non-payment of fine” or in connection with default sentence as isnormally known. Is such non specification accidental or is there anyidea behind not allowing concurrent running of default sentences?

12. Insofar as the nature and extent the power to impose fine isconcerned, Section 63 of the IPC provides some guidelines and statesBthat wherever no sum is expressed to which fine could extend, theamount should not be excessive. It follows that if the law in question orthe concerned provision stipulates the quantum or minimum amount offine, the Courts must be guided by such specification. In Shantilal(supra) this Court considered the nature of imposition of fine and whatattending circumstances ought to be taken into account by the CourtCwhile directing imprisonment for non-payment of fine. Para 31 of thesaid decision is as under;

“31. The next submission of the learned Counsel for the appellant,however, has substance. The term of imprisonment in default ofpayment of fine is not sentence. It is penalty which personDincurs on account of non-payment of fine. The sentence issomething which an offender must undergo unless it is set asideor remitted in part or in whole either in appeal or in revision or inother appropriate judicial proceedings or “otherwise”. term ofimprisonment ordered in default of payment of fine stands on aEdifferent footing. person is required to undergo imprisonmenteither because he is unable to pay the amount of fine or refuses topay such amount. He, therefore, can always avoid to undergoimprisonment in default of payment of fine by paying such amount.It is, therefore, not only the power, but the duty of the court tokeep in view the nature of offence, circumstances under which itFwas committed, the position of the offender and other relevantconsiderations before ordering the offender to suffer imprisonmentin default of payment of fine.”

further question whether there has to be specific empowermentto order imprisonment in default of fine was also considered and it wasGfound that such power is implicit and possessed by courts administeringcriminal justice.

13. If the term of imprisonment in default of payment of fine is apenalty which person incurs on account of non-payment of fine and isnot sentence in strict sense, imposition of such default sentence isHcompletely different and qualitatively distinct from substantive sentence.

We must hasten to add that it is not the case of the appellant that defaultsentences awarded to him must run concurrently with substantivesentence imposed on him. His case is that all default sentences mustinter se run concurrently. Imposition of fine, especially when certainminimum quantum is prescribed and/or mandatory imposition of fine iscontemplated, has some significance. Theoretically, if the defaultsentences awarded in respect of imposition of fine in connection withtwo or more offences are to be clubbed or directed to run concurrently,there would not be any occasion for the persons so sentenced to depositthe fine in respect of the second or further offences. It would effectivelymean imposition of one single or combined sentence of fine. Such anexercise would render the very idea of imposition of fine with deterrentstipulation while awarding sentence in default of payment of fine to bemeaningless. For example, in the present case, in respect of three distinctoffences punishable under the provisions of the MCOC Act, fine cameto be imposed. Such fine going by the relevant provisions had to be at aminimum scale of Rs.5 lakhs. If the default sentences awarded in respectof each of those three counts under the MCOC Act are directed to runconcurrently, the accused may not be inclined to deposit fine in respectof two out of those three counts. If imposition of fine and prescription ofmandatory minimum is designed to achieve specific purpose, the veryobjective will get defeated if the default sentences were directed to runconcurrently. It is precisely for this reason that unlike Sections 31 and427 of the Code, which specifically empower the concerned court todirect concurrent running of substantive sentences, Section 64 of theIPC does not stipulate such discretion. The language of said Section 64rather mandates that the sentence awarded for non-payment of fine“imprisonment shall be in excess of any other imprisonment to which hemay have been sentenced or to which he may be liable under acommutation of sentence”. Similar is the intent in Sections 30, 428and 429(2) of the Code as discussed above. The rigour of the provisionsis such that even if person gets the benefit of commutation of asentence, the sentence in default of payment of fine shall be in excess orin addition.

14. We must at this juncture deal with Full Bench decision of theMadras High Court in Donatus (supra). After considering the decisionof the Bombay High Court in Emperor v. Subrao Sesharao[6], and earlier

6AIR (1926) Bom. 62

ABCDEF

Adecision of the Madras High Court in P. Balaraman v. State[7]anddecisions of this Court in Shantilal v. State of M.P. (supra) andShahejadkhan Mahebubkhan Pathan v. State of Gujarat (supra),the High Court held that there cannot be concurrent running of morethan one default sentences. It was rightly observed as under:-

B“20. The principle laid down by the Hon’ble Apex Court in thedecisions cited supra makes it crystal clear that imposition of theterm of imprisonment in default of payment of fine is not sentenceand it is penalty which person incurs on account of non-paymentof fine. It is also made clear that if such default sentence isimposed, undoubtedly, an offender must undergo unless it is modifiedCor varied in part or whole in the judicial proceedings. Therefore,there is no power for the Court to order the default sentences torun concurrently. The Hon’ble Apex Court also made it clearthat when such default sentence is imposed, person is requiredto undergo imprisonment either because he is unable to pay theamount of fine or refuses to pay such amount.”DThe conclusion regarding concurrent running of default sentencewas as under:

“18. It is relevant to state that there are provisions under thecode, as pointed out earlier, to order the substantive sentences torun concurrently and the legislature specifically excluded suchEpower to the Court in respect of ordering the default sentences torun concurrently. The Court cannot add or substitute any additionalwords to any particular provision of the Code. It is not for theCourt to take up the work of legislation and the Court can onlyapply the provision contained under the Code as it is. It is well-Fsettled in catena of decisions that the term of imprisonment indefault of payment of fine cannot be deemed to be sentence,but penalty which is incurred on account of non-payment offine.”

15. In the circumstances, we reject the submission regardingGconcurrent running of default sentences, as in our considered view defaultsentences, inter se, cannot be directed to run concurrently. However,considering the financial condition of the appellant, case is certainlymade out to have sympathetic consideration about the quantum ofdefault sentence.

H7 (1990) MLJ (Cri) 534

16. The quantum of fine imposed in the present case in respect ofoffences punishable under Sections 364A, 395, 397 and 387 of the IPCis not excessive and is quite moderate. However in our view, the defaultsentence for non-payment of such fine, ought to be reduced to the levelof one month on each of those four counts in respect of the appellant.We now come to the imposition of fine and default sentences for theoffences punishable under Sections 3(1)(ii), 3(2) and 3(4) of the MCOCAct. The text of these Sections shows that these provisions contemplate,upon conviction, mandatory minimum fine of Rs.5 lakhs on each count.We do not therefore find anything wrong with the imposition of fine ofRs.5 lakhs in respect of each of those three counts under the MCOCAct. We however find that the imposition of default sentences of threeyears is slightly on higher scale. We therefore reduce the defaultsentence to period of one year each in respect of these three counts ofoffences under the MCOC Act.

17. Resultantly, while maintaining the quantum of fine, in respectof four counts of offences punishable under the IPC cumulatively atRs.4000/-, the aggregate default sentence shall be four months; and inrespect of three counts of offences punishable under the MCOC Actthe fine shall be Rs.15 lakhs cumulatively with default sentence of threeyears in aggregate. Even if no amount of fine is paid by the appellant,the total default sentence for the appellant would thus be three yearsand four months, out of which three years of default sentence has alreadybeen undergone by the appellant.

18. This appeal thus stands allowed in aforesaid terms. copy ofthis Judgment shall be immediately transmitted to the concerned jail wherethe appellant is presently lodged.

Kalpana K. Tripathy