SHARAD HIRU KOLAMBE versus STATE OF MAHARASHTRA AND OTHERS

Citation: [2018] 11 S.C.R. 720 · Decided: 20-09-2018 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 4 · see the full citation network in Lexace

Judgment (excerpt)

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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
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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
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SUPREME COURT REPORTS
[2018] 11 S.C.R.
have been sentenced or 

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