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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