SHARAD HIRU KOLAMBE versus STATE OF MAHARASHTRA AND OTHERS
[2018] 11 S.C.R. 720, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
720
SUPREME COURT REPORTS
[2018] 11 S.C.R.
   SHARAD HIRU KOLAMBE
v.
STATE OF MAHARASHTRA AND OTHERS
(Criminal Appeal No. 1209 of 2018)
SEPTEMBER 20, 2018
[ABHAY MANOHAR SAPRE AND
UDAY UMESH LALIT, JJ.]
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 appellant-
accused 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,
[2018] 11  S.C.R. 720
                                                   720
A
B
C
D
E
F
G
H
721
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
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS
A
B
C
D
E
F
G
H
722
SUPREME COURT REPORTS
[2018] 11 S.C.R.
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
A
B
C
D
E
F
G
H
723
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-G-
H; 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; 736-
G]
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.
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS
A
B
C
D
E
F
G
H
724
SUPREME COURT REPORTS
[2018] 11 S.C.R.
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-G-
H; 737-A-E]
Palaniappa Gounder v. State of Tamil Nadu and Others
(1977) 2 SCC 634 : [1977] 3  SCR  132 – referred to.
   Case Law Reference
[1977] 3 SCR 132
           referred to
Para 5
[2007] 10 SCR 727
           referred to
Para 5
[2012] 8 SCR 1177
           referred to
Para 5
[2013] 7 SCR 617
           referred to
Para 6
NCB (2013) 1 MWN (Cr.) 175 (FB) referred to
Para 6
A
B
C
D
E
F
G
H
725
AIR (1926) Bom. 62
referred to
Para 14
(1990) MLJ (Cri) 534
referred to
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1209 of 2018
From the Judgment and Order dated 17.12.2013 of the High Court
of Judicature at Bombay in Criminal Appeal No. 906 of 2006
Colin Gonsalves, Sr. Adv., Ms. Parijata Bhardwaj, K. Paari
Vendhan, Advs. for the appellant.
Nishant R. Katneshwarkar, Adv. for the respondent.
The Judgment of the Court was delivered by
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.
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS
A
B
C
D
E
F
G
H
726
SUPREME COURT REPORTS
[2018] 11 S.C.R.
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.”
A
B
C
D
E
F
G
H
727
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. 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.
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
728
SUPREME COURT REPORTS
[2018] 11 S.C.R.
He thus submitted that either default sentences be directed to run
concurrently or the default sentences be reduced to the one already
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.
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
with-out 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,
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)
A
B
C
D
E
F
G
H
729
     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 term of
imprisonment which the Magistrate is competent to inflict as
punishment for the offence otherwise than as imprisonment in
default of payment of the fine.
    (2) The imprisonment awarded under this Section may be in
addition to a substantive sentence of imprisonment for the maximum
term awardable by the Magistrate under Section 29.
31. Sentence in cases of conviction of several offences at one
trial.
     (1) When a person is convicted at one trial of two or more
offences, the Court may, subject to the provisions of Section 71 of
the Indian Penal Code (45 of 1860), sentence him for such
offences, to the several punishments prescribed therefor which
such Court is competent to inflict; such
punishments when
consisting of imprisonment to commence the one after the
expiration of the other in such order as the Court may direct,
unless the Court directs that such punishments shall run
concurrently.
    (2) In the case of consecutive sentences, it shall not be
necessary for the Court by reason only of the aggregate punishment
for the several offences being in excess of the punishment which
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
730
SUPREME COURT REPORTS
[2018] 11 S.C.R.
it is competent to inflict on conviction of a single offence, to send
the offender for trial before a higher Court: Provided that-
(a) in no case shall such person be sentenced to imprisonment
for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount
of punishment which the Court is competent to inflict for a
single offence.
   (3) For the purpose of appeal by a convicted person, the
aggregate of the consecutive sentences passed against him under
this Section shall be deemed to be a single sentence.
427. Sentence on offender already sentenced for another offence.
  (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:
   Provided that where a person who has been sentenced to
imprisonment by an order under Section 122 in default of furnishing
security is, whilst undergoing such sentence, sentenced to
imprisonment for an offence committed prior to the making of
such order, the latter sentence shall commence immediately.
   (2) When a person already undergoing a sentence of
imprisonment for life is sentenced on a subsequent conviction to
imprisonment for a term or imprisonment for life, 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
A
B
C
D
E
F
G
H
731
of such person to undergo imprisonment on such conviction shall
be restricted to the remainder, if any, of the term of imprisonment
imposed on him.
429. Saving.
     (1) Nothing in Section 426 or Section 427 shall be held to
excuse any person from any part of the punishment to which he is
liable upon his former or subsequent conviction.
    (2) When an award of imprisonment in default of
payment of a fine is annexed to a substantive sentence of
imprisonment and the person undergoing the sentence is after its
execution to undergo a further substantive sentence or further
substantive sentences of imprisonment, effect shall not be given
to the award of imprisonment in default of payment of the fine
until the person has undergone the further sentence or sentences.”
8. Section 3 of the MCOC Act is also quoted, under three counts
of which the appellant was convicted and sentenced :-
“3. Punishment for organised crime-
(1) Whoever commits an offence of organised crime shall.-
(i) if such offence has resulted in the death of any person, be
punishable with death or imprisonment for life and shall also be
liable to a fine, subject to a minimum fine of rupees one lac;
(ii) in any other case, 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.
(2) Whoever conspires or attempts to commit or advocates, abets
or
knowingly facilitates the commission of an organised 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
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
732
SUPREME COURT REPORTS
[2018] 11 S.C.R.
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 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
A
B
C
D
E
F
G
H
733
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 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 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
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
734
SUPREME COURT REPORTS
[2018] 11 S.C.R.
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;
“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.
A
B
C
D
E
F
G
H
735
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 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 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
6AIR (1926) Bom. 62
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS [UDAY UMESH LALIT, J.]
A
B
C
D
E
F
G
H
736
SUPREME COURT REPORTS
[2018] 11 S.C.R.
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:-
“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 financial condition of the appellant, a case is certainly
made out to have a sympathetic consideration about the quantum of
default sentence.
7 (1990) MLJ (Cri) 534
A
B
C
D
E
F
G
H
737
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 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.
Kalpana K. Tripathy
  Appeal allowed.
SHARAD HIRU KOLAMBE v. STATE OF MAHARASHTRA
AND OTHERS [UDAY UMESH LALIT, J.]