Sunday 22 August 2021

Whether court can direct that default sentences can run concurrently?

 In terms of the decision taken by this Court in Sharad Hiru

Kilambe, the default sentence cannot be directed to run

concurrently. The discussion in that behalf is to be found in

paragraphs 17 and 18 of said decision which for facility are quoted

hereunder:

“17. 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.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.818-820 OF 2021


DUMYA ALIAS LAKHAN ALIAS INAMDAR Vs  STATE OF MAHARASHTRA

Dated: AUGUST 13, 2021.

Delay condoned.

Leave granted

These appeals arise out of the judgment and order dated

23.02.2016 passed by the High Court of Judicature at Bombay,

Bench at Aurangabad in CRLA Nos.583, 584 and 592 of 2014. The

appeals are preferred by original Accused Nos.1, 4 and 7, who

along with others were tried in the Court of the Additional

Sessions Judge, Aurangabad in Special Case No.10 of 2009 for

having committed offences punishable under Sections 395, 397,

457, 379, 380, 120-B of IPC and 3(1)(ii), 3(2) and 3(4) of the

MCOC Act.

By judgment and order dated 31.07.2014, Trial Court found

that the case of prosecution was proved against the accused.

Accused No.3 having been declared to be absconding, the other six

persons were convicted and sentenced by the Trial Court in respect

of the offences alleged to have been committed by them. Accepting


the case of the prosecution, the Trial Court passed the following

order:

“1. Accused No.1) Kiran s/o Shrimant Bhosale.

Accused No.2) Suresh s/o Sanjay alias Degha

Bhosale,

Accused No.4) Dumya alias Lakhan alias

Inamdar s/o Shrimant Bhosale,

Accused No.5) Sanotsh s/o Sanjay Bhosale,

Accused No.6) Kishor s/o Devidas alias

Degha Bhosale and

Accused No.7) Appa s/o Shrimant Bhosale are

convicted for the offence punishable under for

the offence punishable u/s 395 r/w 120-B of the

IPC and sentenced to suffer Rigorous

Imprisonment for the period of 10 years each.

2. Accused Nos.1,2,4 and 5 are convicted for

the offence punishable u/s 3(1) (ii) of the MCOC

Act r/w 120-B of the IPC and sentenced to suffer

Rigorous Imprisonment for the period of 10 years

each and to pay fine of Rs.5,00,000/- (Rs. Five

Lacs) each, in default to suffer further

Rigorous Imprisonment for 3 years each.

3. Accused Nos.6 and 7 are convicted for the

offence punishable u/s 3(II) of the MCOC Act,

r/w 120-B of the IPC and sentenced to suffer

Rigorous Imprisonment for the period of 7 years

each and pay fine of Rs. 5,00,000/- (Rs. Five

lacs) each, in default to suffer further

Rigorous Imprisonment for 3 years each.

4. Accused Nos.1,2,4 and 5 are convicted for

the offence punishable u/s 3(2) of the MCOC Act

r/w 120-B of the IPC and sentenced to suffer

Rigorous Imprisonment for the period of 10 years

each and to pay fine of Rs.5,00,000/- (Rs. Five

lacs) each, in default to suffer further

Rigorous Imprisonment for 3 years each.

5. Accused Nos.6 and 7 are convicted for the

offence punishable u/s 3(2) of the MCOC Act r/w

120-B of the IPC and sentenced to suffer

Rigorous Imprisonment for the period of 7 years

each and pay fine of Rs.5,00,000/- (Rupees Five

lacs) each, in default to suffer further

Rigorous Imprisonment for 3 years each.

6. Accused Nos.1,2,4 and 5 are convicted for

the offence punishable u/s 3(4) of the MCOC Act,

r/w 120-B of the IPC and sentenced to suffer

Rigorous Imprisonment for the period of 10 years

each and to pay fine of Rs.5,00,000/- (Rupees

Five lacs) each, in default to suffer further

Rigorous Imprisonment for 3 years each.

7. Accused Nos.6 and 7 are convicted for the

offence punishable u/s 3(4) of the MCOC Act, r/w

120-B of the IPC and sentenced to suffer

Rigorous Imprisonment for the period of 7 years

each and pay fine of Rs.5,00,000/- (Rupees Five

lacs) each, in default to suffer further

Rigorous Imprisonment for 3 years each.

8. All the sentences shall run concurrently.

9. The accused Nos.1,2,4,5,6 and 7 are

entitled to get set off u/s 428 of Cr.PC for the

period of detention under gone by them.

10. Accused Nos.1,2,4,5,6 and 7 are acquitted

u/s 397, 457, 379 and 380 of IPC.

11. Accused No.3 is absconding. The

Investigating Officer is directed that, after

arrest of absconding accused No.3 Umesh Shivlal

Shinde, separate supplementary Charge Sheet be

filed against him.

12. Muddemal property be preserved till

conclusion of trial against accused No.3.”

Being aggrieved, the appellants approached the High Court by

filing aforementioned Criminal Appeals which were found to be

without substance and were dismissed vide judgment and order

presently under challenge.

We have heard Mr. Pravin Satale, learned Advocate for the

appellants and Mr. Rahul Chitnis, learned Counsel for the State.

Mr. Satale invites our attention to the decision in Sharad

Hiru Kilambe vs. State of Maharashtra & Ors. [(2018) 18 SCC 718]

(“Sharad Hiru Kilambe” for short). He submits that the default

sentences awarded to the appellants were on the excessive side and

considering the economic conditions of the appellants, relief in

terms of the aforesaid decision be granted to the appellants.

With the assistance of the learned counsel, we have gone

through the record and do not find any reason to take a different

view in the matter insofar as conviction was recorded against the

appellants. The substantive sentences awarded to them as well as

imposition of fine also do not call for interference.

However, default sentences awarded to the appellants show that

for the offences punishable under Sections;

(a) 3(1)(ii) of the MCOC Act read with Section 120-B of IPC;

(b) 3(2) of the MCOC Act read with Section 120-B of IPC.;

and

(c) 3(4) of the MCOC Act read with Section 120-B of IPC;

the appellants have been awarded sentence for three years each

on the aforesaid three counts.

In terms of the decision taken by this Court in Sharad Hiru

Kilambe, the default sentence cannot be directed to run

concurrently. The discussion in that behalf is to be found in

paragraphs 17 and 18 of said decision which for facility are quoted

hereunder:

“17. 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.

18. The quantum of fine imposed in the present

case in respect of offences punishable under

Sections 364-A, 395, 397 and 387 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 the offences under the MCOC

Act.”

However, the default sentence given to the concerned accused

of three years each on three counts was found to be excessive.

Similar situation obtains in the present matter and financial

conditions of the appellants are also on the same lines.

We therefore, proceed to grant similar relief to the present

appellants and direct that the default sentences awarded to each of

the appellants on aforesaid three counts shall be one year each in

respect of such counts. Except for the modification indicated

hereinabove, the rest of the conclusions including conviction and

substantive sentences as well as imposition of fine remain

unaltered.

The appeals are allowed to the aforesaid extent.

......................J.

(UDAY UMESH LALIT)

......................J.

(AJAY RASTOGI)

NEW DELHI;

AUGUST 13, 2021.


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