Sharad Hiru Kolambe vs The State Of Maharashtra

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. 5

(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

428. Period of detention undergone by the accused to be set off against the sentence or imprisonment.– Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to 10 the remainder, if any, of the term of imprisonment imposed on him.

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 20 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.