Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 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 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. 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 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
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.