1. Conviction under IPC and MCOC Act — Substantive sentences remitted — Continued detention due to non-payment of fines and subsequent default sentences. (Para 2 , 3 , 4 )
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2018 Supreme(SC) 894
SUPREME COURT OF INDIA
Abhay Manohar Sapre, Uday Umesh Lalit, JJ.
Sharad Hiru Kolambe – Appellant
Versus
State of Maharashtra and others – Respondents
Criminal Appeal No. 1209 of 2018 (arising out of Special Leave Petition (Criminal) No. 8067 of 2018) (Diary No. 33034 of 2017)
Decided On : 20-09-2018
Important Points
IMPORTANT POINT
Default sentences, inter se, cannot be directed to run concurrently.
Default sentences, inter se, cannot be directed to run concurrently.
Subject
Criminal Law - Sentencing
Act Referred
Headnote
Indian Penal Code, 1860 – Section 63 and 64 r/w sections 30, 31, 427, 428 and 529, Code of Criminal Procedure, 1973 – Default sentence on nonpayment of fine – Fine should not be excessive but no upper limit is prescribed – Default sentence begins after the substantive sentences are over – Period undergone cannot be set off against default sentence – Default sentence cannot be allowed to be merged or run concurrently with substantive sentence. (Para 9, 10)
(2013) 7 SCC 211 – Relied upon
Indian Penal Code, 1860 – Section 64 – Sum of fine – Should not be excessive – Default sentence – Penalty incurred by a person on account of non-payment of fine – Not a sentence in strict sense – Imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence – Default sentences cannot be directed to run concurrently – a (Para 13,
(2007) 11 SCC 243; (2013) 1 SCC 570 – Relied upon
(2013) 1 MWN (Cr.) 175 (FB); AIR (1926) Bom. 62; (1990) MLJ(Cri) 534 – Cited with approval
(1977) 2 SCC 634 – Referred
Indian Penal Code, 1860 – Sections 364A, 395, 397 and 387 and sections 3(1)(ii), 3(2) and 3(4), MCOC Act – Instantly fine imposed under sections 364A, 395, 397 and 387 IPC held, non excessive – Similarly fine imposed under MACOCA is mandatory minimum – Default sentences – Found on a higher side – Reduced. (Para 16, 17)
Facts of the case:
The appellant along with other co-accused was tried and convicted by the Special Judge [the MCOC Act].
The conviction and sentence of the appellant was affirmed by the High Court.
Finding of the Court:
Default sentences, inter se, cannot be directed to run concurrently.
Result: Appeal partly allowed.
Judgement Key Points
What is the principle governing whether default sentences for non-payment of fines can run concurrently with substantive sentences?
What is the proper treatment of default sentences inter se when multiple counts under IPC/MCOC Act impose fines and default imprisonment, and whether set-off or aggregation is permissible?
What is the appropriate quantum of default sentences for violations under IPC and MCOC Act in light of mandatory minimum fines and the financial conditions of the offender?
Legal Category Hierarchy
- crime and sentencing
- practice and procedure
Table of Contents
2. Whether multiple default sentences for non-payment of fines should run concurrently inter se and whether the quantum of such sentences was excessive. (Para 5 , 6 )
3. Default imprisonment is a penalty for non-payment, not a substantive sentence; it must be in addition to substantive sentences to maintain deterrent value. (Para 9 , 10 , 11 , 12 , 13 , 14 )
4. Default sentences for non-payment of fines cannot run concurrently inter se as they are penalties intended to be in excess of other imprisonments. (Para 13 , 14 , 15 )
5. Appeal allowed — Default sentences for IPC and MCOC Act offences reduced based on the appellant's financial capacity. (Para 16 , 17 , 18 )
6. Can default sentences for non-payment of fine run concurrently with substantive sentences?
No. Under Section 64 IPC and Sections 30, 428, and 429(2) of the CrPC, imprisonment for non-payment of fine must be in excess of or in addition to any substantive sentence or commutation of a sentence. (Para 9 , 10 )
7. Can multiple default sentences for different offences run concurrently with each other (inter se)?
No. Default sentences cannot run concurrently inter se. If they were clubbed, the deterrent purpose of imposing fines for multiple distinct offences would be defeated, effectively treating them as a single combined fine. (Para 13 , 14 , 15 )
8. What is the legal nature of imprisonment in default of payment of fine?
It is not a sentence in the strict sense but a penalty incurred due to the non-payment of a fine, which an offender can avoid by paying the prescribed amount. (Para 12 , 13 , 14 )
9. Can the court reduce the quantum of a default sentence?
Yes. The court has a duty to consider the nature of the offence, the circumstances of the crime, and the financial position of the offender when determining the quantum of default imprisonment. (Para 12 , 15 , 16 )
JUDGMENT :
Uday Umesh Lalit, J.
1. Delay in filing Special Leave Petition condoned. Leave granted.
2. This appeal challenges the decision dated 17.12.2013 passed by the High Court of Bombay in Criminal Appeal No.906 of 2006 affirming the conviction and sentence of the appellant (original accused No.6) for offences punishable under the Indian Penal Code (IPC, for short) as well as the Maharashtra Control of Organised Crime Act, 1999 (hereinafter referred to as the MCOC Act). Since the emphasis in the present appeal was placed on the nature of default sentences passed against the appellant, we confine ourselves to bare outline of facts. The appellant along with other co-accused was tried and convicted by the Special Judge [the MCOC Act] Thane in M.C.O.C. Special Case No.3 of 2002 vide judgment dated 20.10.2005. The relevant portion of the order of sentence passed by the Special Judge reads as under:-
“Accused Nos.1 to 6 namely, Sanjay Kisan Mohite, Sudish Maniken, Maniken Nair, Pramod Shankar Jadhav, Santosh Manohar Deshmukh, Chandrakant Balkrishna Shegde and Sharad Hiru Kolambe are convicted for offence punishable under Section 364A of Indian Penal Code read with Section 34 of the Indian Penal Code and sentenced to suffer life imprisonment 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 punishable under Section 395 of Indian Penal Code and sentenced to suffer imprisonment 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 punishable under Section 397 of Indian Penal Code and sentenced to suffer imprisonment 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 punishable under Section 387 of Indian Penal code read with Section 34 of the Indian Penal Code and sentenced to suffer imprisonment for five 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 punishable under Section 342 of Indian Penal Code read with Section 34 of the Indian Penal code and sentenced to suffer imprisonment for one year.
The accused Nos.1 to 6 are convicted for offence punishable under Section 3 (1)(ii) of Maharashtra Control of Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs.5,00,000/- (Rupees Five lacs) each. In default, to suffer imprisonment for three years.
The accused Nos.1 to 6 are convicted for offence punishable under Section 3 (2) of Maharashtra Control of Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs.5,00,000/- (Rupees Five Lacs) each. In default, to suffer imprisonment for three years.
The accused Nos.1 to 6 are convicted for offence punishable under Section 3 (4) of Maharashtra Control of Organised Crime Act and sentenced to suffer imprisonment for ten years and to pay fine of Rs.5,00,000/- (Rupees Five Lacs) each. In default, to suffer imprisonment for three years.
All the sentences shall run concurrently.
The accused persons are entitled for set off under Section 428 of the Criminal P.C. for pretrial detention period.
Accused No.7 Avinash Shrikrishna Dugad and accused No.8 Tanaji Nanu Birade are acquitted of all the offences.
Their bail bonds stand cancelled.”
3. The decision so rendered by the Special Judge was questioned by all the convicted accused by filing criminal appeals in the High Court of Bombay. The High Court by its judgment and order under appeal set aside the conviction and sentence of original accused No.5. It, however, dismissed all the other appeals. The conviction and sentence in so far as the appellant is concerned thus stood affirmed.
4. It may be mentioned that the appellant was arrested on 26.08.2001 and was never released during the trial as well as during the pen
