Sentence/Sentencing:
Default sentence – Nature of – Appellant-accused convicted u/ss. 364A, 395, 397 and 387 of IPC and u/ss.3(1)(ii), 3(2) and 3(4) of Maharashtra Control of Organised Crime Act (MCOCA), 1999 – Alongwith sentence of imprisonment, he was imposed a fine of Rs.15,04,000/- under various counts of punishment – Default sentence was cumulatively 10 years – State Government in exercise of power u/ss. 432 and 433 Cr.P.C., directed release of the appellantaccused on completion of 14 years of actual sentence – Since the accused did not pay the fine amount, was undergoing sentence in default – Plea either to direct the default sentence to run concurrently or to reduce the default sentence to the one already undergone – Held: In view of provisions under ss. 63 and 64 of IPC and under ss. 30, 429 and 428 Cr.P.C., default sentence is in addition to the substantive sentence and hence both the sentences cannot be merged or allowed to run concurrently – In case of substantive sentences court has discretion to decide whether it would run concurrently or substantively – However, such discretion is not available in case of default sentence – Default sentence also cannot be directed to run concurrently inter se – However, considering the financial condition of the appellant-accused, quantum of default sentence needs sympathetic consideration – There is nothing wrong with fine amount imposed – However, imposition of default sentence is on a higher scale – Therefore, the default sentence on the four counts of offences under IPC are reduced on one month each i.e. four months – The default sentence on the three counts of offences under MCOCA are reduced from three years each to one year each – Resultantly default sentence would be three years four months in aggregate – Penal Code, 1860 – ss. 63 & 64 and ss.364(A), 395,
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 of sentences – Held: Normal rule is that punishment would commence one after the expiration of the other – ss. 31 and 427 provides discretion to the Court to specify whether the substantive sentences should run concurrently or consecutively – Sentence/Sentencing. Allowing the appeal, the Court
HELD: 1. Section 63 of IPC generally lays down that fine should not be excessive wherever no sum is expressed to which the fine may extend. Naturally, in cases where the concerned provision itself indicates a sum to which the fine may extend, or prescribes a minimum quantum of fine, such element may not apply. In cases covered by Section 64 of IPC the Court is competent to impose sentence of “imprisonment for non-payment of fine” and such sentence for non-payment of fine “shall be in excess of any imprisonment” to which the offender may have been sentenced or to which he may be liable under commutation of a sentence. [Para 9] [732-D-E]
2. Sections 30 and 429(2) of the Cr.P.C. also touch upon the principle that default sentence shall be in addition to substantive sentence. In terms of Section 30(2) the default sentence awarded by a Magistrate is not to be counted while considering the maximum punishment that can be substantively awarded by the Magistrate, while under Section 429(2), in cases where two or more substantive sentences are to be undergone one after the other, the default sentence, if awarded, would not begin to run till the substantive sentences are over. Similarly, under Section 428 of the Cr.P.C., the period undergone during investigation, inquiry or trial has to be set off against substantive sentence but not against default sentence. The idea is thus clear, that default sentence is not to be merged with or allowed to run concurrently with a substantive sentence. Thus, the sentence of imprisonment for non-payment of fine would be in excess of or in addition to the substantive sentence to which an offender may have been sentenced or to which he may be liable under commutation of a sentence. [Para 9] [732-E-H; 733-A]
3. Sections 31 and 427 of Cr.P.C. speak of consecutive and concurrent running of sentences. Section 31 deals with cases where a person is convicted at one trial of two or more offences. The normal principle is that the punishments would commence one after the expiration of the other. Sections 31 and 427 of Cr.P.C. deal with discretion available to the Court to specify whether the substantive sentences should run concurrently or consecutively. [Para 10] [733-A-C]
V.K. Bansal v. State of Haryana and Another (2013) 7 SCC 211 : [2013] 7 SCR 617 – referred to.
4. As against Sections 31 and 427 of Cr.P.C. which deal with substantive sentences and empower the courts in certain cases to direct concurrent running of more than one sentences, no such specification is available in Section 64 of IPC and in Section 30 of Cr.P.C. or in any other provision dealing with power to 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]
Shantilal 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 fine is a penalty which a person incurs on account of non-payment of fine and is not a sentence in strict sense, imposition of such default sentence is completely different and qualitatively distinct from a substantive sentence. It is not the case of the appellant that default sentences awarded to him must run concurrently with substantive sentence imposed on him. His case is that all default sentences must inter se run concurrently. Imposition of fine, especially when certain minimum quantum is prescribed and/or mandatory imposition of fine is contemplated, has some significance. Theoretically, if the default sentences awarded in respect of imposition of fine in connection with two or more offences are to be clubbed or directed to run concurrently, there would not be any occasion for the persons so sentenced to deposit the fine in respect of the second or further offences. It would effectively mean imposition of one single or combined sentence of fine. Such an exercise would render the very idea of imposition of fine with a deterrent stipulation while awarding sentence in default of payment of fine to be meaningless. [Para 13] [734-GH; 735-A-C]
6. In the present case, in respect of three distinct offences punishable under the provisions of the MCOC Act, fine came to be imposed. Such fine going by the relevant provisions had to be at a minimum scale of Rs.5 lakhs. If the default sentences awarded in respect of each of those three counts under the MCOC Act are directed to run concurrently, the accused may not be inclined to deposit fine in respect of two out of those three counts. If imposition of fine and prescription of mandatory minimum is designed to achieve a specific purpose, the very objective will get defeated if the default sentences were directed to run concurrently. It is precisely for this reason that unlike Sections
31 and 427 of the Cr.P.C., which specifically empower the concerned court to direct concurrent running of substantive sentences, Section 64 of the IPC does not stipulate such discretion. The language of Section 64 of IPC rather mandates that the sentence awarded for non-payment of fine “imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence”. Similar is the intent in Sections 30,
428 and 429(2) of the Cr.P.C. The rigour of the provisions is such that even if a person gets the benefit of commutation of a sentence, the sentence in default of payment of fine shall be in excess or in addition. Default sentences, inter se, cannot be directed to run concurrently. [Paras 13 and 15] [735-C-G; 736G] Donatus Tony Ikwanusi v. The Investigating Officer, NCB (2013) 1 MWN (Cr.) 175 (FB); Emperor v. Subrao Sesharao 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; Shahejadkhan
Mahebubkhan Pathan v. State of Gujarat (2013) 1 SCC
570 : [2012] 8 SCR 1177 – referred to.
7. However, considering the financial condition of the appellant, a case is certainly made out to have a sympathetic consideration about the quantum of default sentence. The quantum of fine imposed in the present case in respect of offences punishable under Sections 364A, 395, 397 and 387 of the IPC is not excessive and is quite moderate. However, the default sentence for non-payment of such fine, ought to be reduced to the level of one month on each of those four counts in respect of the appellant. So far as the imposition of fine and default sentences for the offences punishable under Sections 3(1)(ii), 3(2) and 3(4) of the MCOC Act, are concerned, the text of these Sections shows that these provisions contemplate, upon conviction, mandatory minimum fine of Rs.5 lakhs on each count. There is nothing wrong with the imposition of fine of Rs.5 lakhs in respect of each of those three counts under the MCOC Act. However, imposition of default sentences of three years is slightly on a higher scale. Therefore, the default sentence is reduced to a period of one year each in respect of these three counts of offences under the MCOC Act. Resultantly, while maintaining the quantum of fine, in respect of four counts of offences punishable under the IPC cumulatively at Rs.4000/-, the aggregate default sentence shall be four months; and in respect of three counts of offences punishable under the MCOC Act the fine shall be Rs.15 lakhs cumulatively with default sentence of three years in aggregate. Even if no amount of fine is paid by the appellant, the total default sentence for the appellant would thus be three years and four months, out of which three years of default sentence has already been undergone by the appellant. [Paras 15, 16 and 17] [736-GH; 737-A-E] Palaniappa Gounder v. State of Tamil Nadu and Others (1977) 2 SCC 634 : [1977] 3 SCR 132 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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