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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1209 OF 2018  (arising out of)

(SPECIAL LEAVE PETITION (CRIMINAL) NO. 8067 OF 2018) (Diary No.33034 of 2017)

Sharad Hiru Kolambe …… Appellant

Versus

State of Maharashtra and others ..…. Respondents

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

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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.

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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.”   

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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 pendency of the

appeal.  He thus completed 14 years of actual sentence on 25.08.2015.  By

order  dated  04.03.2017  passed  by  the  Government  of  Maharashtra  in

exercise  of  powers  conferred  under  Sections  432  and  433  of  Criminal

Procedure  Code  (hereinafter  referred  to  as  the  Code),  the  appellant  was

directed  to  be  released  on  completion  of  14  years  of  actual  sentence.

However, since the appellant has not paid the amount of fine as directed, he

is presently undergoing the sentence in default  as awarded by the Courts

below.   It  must  further  be  mentioned  that  on  03.06.2017,  the  District

Probation Officer, District Women and Child Welfare Department, Raigad,

Alibaug submitted a Home Inquiry Report  wherein it  was noted that  the

appellant’s family was in a state of starvation.   

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5. In the aforesaid factual context, Mr. Colin Gonsalves, learned Senior

Counsel appearing for the appellant advanced following submissions:-

a. The cumulative fine imposed upon the appellant under various

counts of punishment was Rs.15,04,000/- and the default sentence in

case of non-payment was cumulatively 10 years.  For a person whose

family  was  reduced  to  a  state  of  starvation,  it  was  impossible  to

deposit payment of fine as directed.  Resultantly, the appellant would

have to suffer default sentence of 10 years.  Though the substantive

sentence stood remitted and the appellant was directed to be released

on completion of 14 years of actual sentence, the appellant would still

be inside till he completes 24 years.   

b. Since  the  trial  court  had  directed  “all  sentences  shall  run

concurrently”, 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 be

unconscionable and excessive.

He  thus  submitted  that  either  default  sentences  be  directed  to  run

concurrently  or  the  default  sentences  be  reduced  to  the  one  already

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undergone and the appellant be set at liberty.  The learned Senior Counsel

relied on the decisions of  this  court  rendered in  Palaniappa Gounder  v.

State  of  Tamil  Nadu  and  Others1,  Shantilal  v. State  of  M.P.2 and

Shahejadkhan Mahebubkhan Pathan  v. State  of  Gujarat3 in  which this

Court after considering the standing of the person, nature of crime and the

financial capacity had reduced the quantum of default sentence.  

6. Mr. Nishant R. Katneshwarkar, learned Counsel appearing for State of

Maharashtra however relied upon certain observations made by this Court in

V.K. Bansal  v. State of Haryana and Another4 and a decision of the Full

Bench of Madras High Court in case of  Donatus Tony Ikwanusi  v. The

Investigating  Officer,  NCB5 to  submit  that  default  sentences  for  non-

payment  of  fine  could  not  be  ordered  to  run concurrently.   The  learned

Counsel however fairly submitted that considering the financial capacity of

the appellant,  the quantum of default  sentences under each of the counts

could certainly be reduced as this Court may deem appropriate.

1 (1977) 2 SCC 634 2 (2007) 11 SCC 243 3 (2013) 1 SCC 570 4 (2013) 7 SCC 211 5 (2013) 1 MWN (Cr.) 175 (FB)

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7. Sections 63 and 64 of the IPC; Sections 30, 31, 421, 427, 428 and 429

of the Code which provisions have bearing on the present controversy, are

quoted hereunder:-

Indian Penal Code

“63. Amount of fine.- Where no sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive. 64.  Sentence of  imprisonment  for  non-payment  of  fine.— In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment,  

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

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine,  the offender shall  suffer  imprisonment  for  a  certain term, in which 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.”

Code of Criminal Procedure

“30. Sentence of imprisonment in default of fine.

(1) The Court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term-

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

(b) shall  not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the

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crime  or  any  act  preparatory  to  organised  crime,  shall  be punishable with imprisonment for a term which shall be not less than five years but which may extend to imprisonment for life, and shall also be liable to a .fine, subject to a minimum fine of rupees five lacs.

(3)  Whoever  harbours  or  conceals  or  attempts  to  harbour  or conceal, any member of an organised crime syndicate; shall be punishable with imprisonment for a term which shall not be less than five years but which may extend to imprisonment for life, and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(4)  Any  person  who  is  a  member  of  an  organised  crime syndicate  shall  be  punishable  with  imprisonment  for  a  term which shall not be less than five years but which may extend to imprisonment for life and shall also be liable to a fine, subject to a minimum fine of rupees five lacs.

(5)  Whoever  holds  any  property  derived  or  obtained  from commission of an organised crime or which has been acquired through the organised crime syndicate funds shall be punishable with a term which, shall not be less than three years but which may extend to imprisonment for life and shall also be liable to fine, subject to a minimum fine of rupees two lacs.”

9. 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

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imprisonment” to which the offender may have been sentenced or to which

he may be liable under commutation of a sentence.  Sections 30 and 429(2)

of the Code also touch upon the principle that default sentence shall be in

addition to substantive sentence.  In terms of said 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  Code,  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.    

10. There are two provisions in the Code namely Sections 31 and 427

which 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

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offences.  The reading of Section 31 makes it clear that unless the Court

directs that punishments for such two or more offences at same trial should

run  concurrently,  the  normal  principle  is  that  the  punishments  would

commence one after the expiration of the other.  The provision thus gives

discretion  to  the  Court  to  direct  running  of  such  punishments  either

concurrently or consecutively.  Similar discretion is available in Section 427

which deals with cases where a person already undergoing a sentence is later

imposed sentence in respect of an offence tried at subsequent trial.  These

two  provisions  namely  Sections  31  and  427  thus  deal  with  discretion

available to the Court to specify whether the substantive sentences should

run concurrently or consecutively.  In the context of exercise of power under

Section 427 of the Code, our attention was invited by the learned Counsel

appearing  for  State  of  Maharashtra  to  certain  observations  made  by  this

Court in V.K. Bansal (supra).  Even while granting the benefit of concurrent

running of  the substantive sentences in respect  of  offences arising out of

distinct  transactions,  this  Court  made certain observations regarding non-

applicability of such benefit to sentences in default of fine, in para 18 as

under :-   

“….We  make  it  clear  that  the  direction  regarding concurrent  running  of  sentence  shall  be  limited  to  the substantive sentence only. The sentence which the appellant has been  directed  to  undergo  in  default  of  payment  of

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fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 CrPC do not, in our opinion,  permit  a direction for  the concurrent  running of  the substantive  sentences  with  sentences  awarded  in  default  of payment of fine/compensation.”

11. As  against  Sections  31  and  427  of  the  Code  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 the Code 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.  Is such non specification accidental or is there any idea behind not

allowing concurrent running of default sentences?   

12. Insofar as the nature and extent the power to impose fine is concerned,

Section 63 of the IPC provides some guidelines and states that wherever no

sum is expressed to which a fine could extend, the amount should not be

excessive. It follows that if the law in question or the concerned provision

stipulates  the  quantum or  minimum amount  of  fine,  the  Courts  must  be

guided by such specification.  In Shantilal (supra) this Court considered the

nature of imposition of fine and what attending circumstances ought to be

taken  into  account  by  the  Court  while  directing  imprisonment  for  non-

payment of fine.  Para 31 of the said decision is as under;

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“31. The  next  submission  of  the  learned  Counsel  for  the appellant, however, has substance. The term of imprisonment in default  of  payment  of  fine  is  not  a  sentence.  It  is  a  penalty which a person incurs on account of non-payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision  or  in  other  appropriate  judicial  proceedings  or “otherwise”.  A term  of  imprisonment  ordered  in  default  of payment  of  fine  stands  on  a  different  footing.  A person  is required to undergo imprisonment either because he is unable to pay  the  amount  of  fine  or  refuses  to  pay  such  amount.  He, therefore, can always avoid to undergo imprisonment in default of payment of fine by paying such amount. It is, therefore, not only the  power, but the  duty of the court to keep in view the nature of offence, circumstances under which it was committed, the position of the offender and other relevant considerations before ordering the offender to suffer imprisonment in default of payment of fine.”

 A further question whether there has to be specific empowerment to

order imprisonment in default of fine was also considered and it was found

that such power is implicit and possessed by courts administering criminal

justice.   

13. 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.   We must

hasten to add that it is not the case of the appellant that default sentences

awarded to him must run concurrently with substantive sentence imposed on

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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.   For example,  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

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of  the  Code,  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 said Section 64 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 Code as discussed above.

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.  

14. We must at this juncture deal with Full Bench decision of the Madras

High  Court  in  Donatus  (supra).   After  considering  the  decision  of  the

Bombay High Court in Emperor v. Subrao Sesharao6, and earlier decision

of the Madras High Court in  P. Balaraman  v. State7 and decisions of this

Court  in  Shantilal  v. State  of  M.P.  (supra) and Shahejadkhan

Mahebubkhan Pathan v. State of Gujarat (supra), the High Court held that

there cannot be concurrent running of more than one default sentences.  It

was rightly observed as under:-

6AIR (1926) Bom. 62  7 (1990) MLJ (Cri) 534

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“20. The  principle  laid  down  by  the  Hon’ble  Apex Court  in the decisions cited supra makes it  crystal  clear  that imposition of the term of imprisonment in default of payment of  fine  is  not  a  sentence and it  is  a  penalty which a  person incurs on account of non-payment of fine.  It is also made clear that  if  such  default  sentence  is  imposed,  undoubtedly,  an offender must undergo unless it is modified or varied in part or whole in the judicial proceedings.  Therefore, there is no power for the Court to order the default sentences to run concurrently. The Hon’ble Apex Court also made it clear that when such a default  sentence is  imposed,  a  person is  required to  undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount.”   

The conclusion regarding concurrent running of default sentence was

as under:

“18. It is relevant to state that there are provisions under the  code,  as  pointed  out  earlier,  to  order  the  substantive sentences  to  run concurrently  and the  legislature  specifically excluded such power  to  the Court  in  respect  of  ordering the default sentences to run concurrently.  The Court cannot add or substitute any additional words to any particular provision of the  Code.   It  is  not  for  the  Court  to  take  up  the  work  of legislation and the Court can only apply the provision contained under the Code as it is.  It is well-settled in a catena of decisions that  the term of  imprisonment  in  default  of  payment  of  fine cannot  be  deemed  to  be  a  sentence,  but  a  penalty  which  is incurred on account of non-payment of fine.”

15. In the circumstances, we reject the submission regarding concurrent

running of default sentences, as in our considered view default sentences,

inter se, cannot be directed to run concurrently.  However, considering the

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financial condition of the appellant, a case is certainly made out to have a

sympathetic consideration about the quantum of default sentence.   

16. 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 in our view, 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.  We now come to 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.  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 of Rs.5 lakhs in respect of each

of  those  three  counts  under  the  MCOC Act.   We  however  find  that  the

imposition of default sentences of three years is slightly on a higher scale.

We therefore reduce the default  sentence to a period of one year each in

respect of these three counts of offences under the MCOC Act.

17. 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

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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.

18.   This  appeal  thus  stands  allowed in  aforesaid  terms.  A copy  of  this

Judgment shall be immediately transmitted to the concerned jail where the

appellant is presently lodged.

…………………..……J. (Abhay Manohar Sapre)

…………………..……J. (Uday Umesh Lalit)

New Delhi, September 20, 2018