The default sentences for non-payment of fine cannot be ordered to run concurrently.

K.N. Basha, J.

1. This Full Bench is constituted by the Hon'ble The Chief Justice on the basis of the reference made by one of us (Hon'ble Mr.Justice T.Sudanthiram) in this appeal on 03.08.2012 as the Hon'ble Judge has taken a different view from that of the view taken by a Division Bench of this Court in its order dated 27.03.2012 M.Balasubramaniam V. State represented by the Inspector and others) reported in2012 (1) L.W. (Crl.) 429 to the effect that there is no prohibition for the Court to order the default sentence also to run concurrently. The Hon'ble Judge by quoting a catena of decision right from (1911) 5 SLR 263 (Emperor Vs. Akidullah) rendered by this Court and various High Courts pointed out that they are consistent that the default sentence of imprisonment cannot be made to run concurrently. Therefore, the learned Judge felt that the decision rendered by the Division Bench of this Court in M.Balasubramaniam V. State represented by the Inspector and others) reported in2012 (1) L.W. (Crl.) 429 by taking a view that “there is no prohibition for the Court to order the default sentence also to run concurrently” requires reconsideration for an authoritative pronouncement by a Full Bench.

2. In view of the above, the crux of the question involved in this reference for the decision of this Full Bench is to the effect “whether there is any prohibition or not for the Court to order the default sentence of imprisonment imposed for the non-payment of fine also to run concurrently”.

3. Mr.AR.L.Sundaresan, learned Senior Counsel, volunteered to assist the Court as an Amicus Curiae. Mr.C.R.Malarvannan, learned counsel, who has already appeared before the learned single Judge as amicus curiae, also assisted this Court as amicus curiae and Mr.A.Ganesh, learned counsel also joined with them.

4. Heard Mr.N.P.Kumar, learned Special Public Prosecutor for NCB Cases appearing for the respondent and Mr.T.S.Sasikumar, learned counsel for the appellant.

5. Mr.AR.L.Sundaresan, learned Senior Counsel appeared as Amicus Curiae took us through the provisions under Section 64 IPC and under Sections 421, 427, 428 and 429 Cr.P.C. and contended that the legislators, namely, Law Makers have thought it necessary that the default sentence cannot be allowed to run concurrently. It is pointed out by the learned Senior Counsel that the discretion was not conferred on the Court by any provisions of the Code of Criminal Procedure (hereinafter referred to as “the Code”) for ordering the default sentences also to run concurrently and when it is not conferred on the Court, the Court has no such power to exercise the discretion. It is contended that the Court cannot take up the legislation work and it cannot expand the legislation, the Court can only apply the legislation as it is. It is further contended that the Law makers did not think it proper to give the power to Court to order that the default sentence also can run concurrently, then, no person will have the inclination to pay fine imposed on him and as such, the very purpose of imposing fine will get defeated if the discretion is given to the Court as the Court may order the default sentences to run concurrently.

6. Mr.A.Ganesh, learned counsel, contended that as per the provision under Section 64 IPC, the default sentence should be in excess of the sentence awarded to the prisoner and there is no bar under Section 64 IPC for ordering the default sentences to run concurrently. The learned counsel also submitted a compilation of judgments containing the decisions relied on in the referral order of the learned Single Judge as well as other decisions.

7. Mr.C.R.Malarvannan, learned counsel, who has appeared as Amicus Curiae before the learned Single Judge, also reiterated the contentions as that of the learned Senior Counsel and submitted a compilation of decisions.

8. Mr.N.P.Kumar, learned Special Public Prosecutor for NCB Cases, contended that there is absolutely no provision for ordering