Bombay High Court: The petitioner (“convict”) was convicted in 14 criminal cases, invoking Sections 3801, 4282, 4543, 4574, 5115 read with 346 of the Penal Code, 1860 (“IPC”), by the Judicial Magistrate First Class, Kolhapur (“Trial Court”), on 18-02-2019. The convict had admitted guilt before the Trial Court, based on which he was sentenced to undergo rigorous imprisonment for two years for each criminal case, that were directed to run concurrently. Further, a total fine was also imposed upon the convict, amount to Rs. 2,65,000. Given his financial condition, the convict was unable to pay the fines, and was therefore prospecting a further imprisonment of nine years. He invoked the inherent jurisdiction of the Court under Section 4827 of the Code of Criminal Procedure, 1973 (“CrPC”), seeking the reduction of prospective sentence.
The Division Bench of Bharati Dangre* and Manjusha Deshpande, JJ., noted that the convict should have been released on 09-03-2020, however, due to his inability to pay the fine, he had been further incarcerated until the date of the instant decision. Therefore, in the light of the provisions of the Penal Code, 1860 (“IPC”) and CrPC, the Court held that the sentence served by the convict since May 2020 till the date of the decision shall be considered as the default sentence in lieu of fines and thus, directed for his release.
Background
The convict approached the instant Court contending that he had served his substantive sentence, and due to poverty, he was unable to afford the fines imposed upon him, in default of which, he was faced with a prospect of imprisonment of 9 years. The convict pleaded that his further incarceration was depriving him of his fundamental right enshrined in Article 21 of the Constitution. Therefore, the convict invoked the inherent jurisdiction of the instant Court under Section 482 of CrPC, seeking the reduction of sentence in default of the fine by restricting it to the imprisonment already undergone, and his release forthwith.
Court’s analysis and judgment
The Court referred to Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360, wherein the eminent Justice V.R, Krishna Iyer stated that, “to be poor, in this land of Daridranayan, is no crime, and to recover debts by the procedure of putting one in prison is too flagrantly violative of Article 21, unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means…”
The Court noted that the convict continued to be incarcerated despite undergoing substantive sentence imposed upon him, which was completed on 09-03-2020. The Court further noted that outstanding amount of the fine was not a small but a whopping sum of Rs. 2,65,000.
The Court further noted that the convict belonged to the financially weaker section of the society and due to his inability to arrange for the fine amount, he continued to be in jail for the last four years. The Court opined that a direction for further imprisonment of nine years would be a travesty of justice.
The Court applied the principle contained in Sharad Hiru Kolambe v. State of Maharashtra, (2018) 18 SCC 718, that the sentences in lieu of deposit of fine could not be directed to run concurrently with each other and shall run one after the other.
The Court noted the fine amount imposed by the Trial Court on the convict under Sections 380, 454 and 457 of IPC, and observed that these provisions do not prescribe for amount of fine. Therefore, the Court examined Section 648 of IPC, that provides for sentence of imprisonment for non-payment of fine, and Section 309 of CrPC, that provides for sentence of imprisonment in default of fine and found that concurrent running of default sentences was impermissible and that the fine imposed for conviction under Section 457 of IPC was excessive.
Considering the financial position of the convict, the Court reduced the fine imposed under Section 457 of IPC to Rs. 5000. Further, the Court found the imposition of a default sentence of three months on each count to be on a higher scale and deemed it appropriate to direct the detention since May 2020 till the date of the instant decision to be considered as default sentence undergone in lieu of the fines imposed. The Court also directed for the release of the convict forthwith and he shall be set at liberty.
[Sikandar Govind Kale v. State of Maharashtra, 2024 SCC OnLine Bom 2146, decided on 27-06-2024]
*Judgment authored by: Justice Bharati Dangre
Advocates who appeared in this case :
For the petitioner: Atharva Dandekar, Hitendra Parab, Padmini Ainapure, Advocates
For the respondents: Dr. Ashvini Takalkar, APP
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1. Corresponding Section 305 of the Nyaya Sanhita, 2023 (“BNS”)
7. Corresponding Section 528 of Nagarik Suraksha Sanhita, 2023 (“BNSS”)
