Bombay High Court
Sikandar Govind Kale And Ors vs The State Of Maharashtra And Anr on 26 November, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:45656-DB
Digitally
signed by
CHAITANYA
CHAITANYA ASHOK
ASHOK
JADHAV
JADHAV
Date:
2024.11.28
18:31:52
1/15 Judgement-Wp(St)-12437-2024.doc
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 12437 OF 2024
1. Sikandar Govind Kale
Age : 41 Years, Occu.: Unemployed,
(Presently lodged in Kolhapur Central
Prison)
2. Vilas @ Bahirya Chana Shinde,
Age : 39 Years, Occu.: Unemployed,
(Presently lodged in Kolhapur Central
Prison)
3. Rajendra Aba Kale,
Age : 43 Years, Occu.: Unemployed,
(Presently lodged in Kolhapur Central
Prison) .. Petitioners
Versus
1. The State of Maharashtra
(Through Public Prosecutor High
Court, Mumbai)
2. The Jail Superintendent,
Kolhapur Central Prison, Kolhapur. .. Respondents
...
Ms. Fehmida Ahmed i/b Adv. M. B. Shirsat, for the Petitioners.
Ms. S. S. Kaushik, A.P.P., for the State-Respondent.
...
CORAM : BHARATI DANGRE &
MANJUSHA DESHPANDE, JJ.
DATE : 26th NOVEMBER, 2024.
Chaitanya
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JUDGMENT (PER MANJUSHA DESHPANDE, J.) :-
1. The Petition is taken up for final disposal with the consent of the parties.
2. The Petitioners are undergoing sentence in the Central Prison at Kolhapur.
The Petitioners are co-accused in various offences registered against them. The Petitioners alongwith two other co-accused were convicted by the learned Judicial Magistrate First Class, Kolhapur, in 14 cases filed against them by separate Judgments dated 18.02.2019. The conviction in each of the case was based on the admission of guilt recorded by the Magistrate. The Petitioners were found guilty of having committed the offences of which they were charged with. They were directed to undergo rigorous imprisonment for two years in each criminal case. It was further directed that the sentences would run concurrently with that, in other criminal cases. In addition to the substantive sentences, fine was imposed in each of the case and it was directed that in default of payment of fine, the convicts would further undergo simple imprisonment of three months each. The details of 14 offences Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 3/15 Judgement-Wp(St)-12437-2024.doc registered against the present Petitioners are given herein below in a tabular chart :
Sr. Police Station Offence Date of Substantive Fine Imprisonmen No. CR NO. Arrest sentence t in default RCC NO.
1 Gokul Police Stn. Offence u/s 13.09.2017 u/s. 454 IPC 5000/-
CR No.40/2017 454, 457, r/w 34 RI for RCC No.95/2018 380 r/w 34 1 year IPC u/s 457 IPC 10,000/-
RI for 2 years u/s 380 IPC 5000/-
RI for 1 year 2 Rajarampuri Police Offence u/s 21.12.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR No.149/2017 454,380 r/w 34 RI for RCC No.330/2018 r/w 34 IPC 1 year u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI r.w 34 RI for 1 year 3 Junarajawada Police Offence u/s 24.10.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR No.105/2017 454,457, r/w 34 RI for RCC NO.87/2018 380 r/w 34 1 year IPC u/s 457 IPC 10,000/- 3 months SI RI for 2 years u/s 380 IPC 5000/- 3 months SI RI for 1 year 4 Rajarampuri Police Offence u/s 01.11.2017 u/s. 454 IPC 5,000/- 3 months SI Stn.CR NO.288/2016 457, 380 r/w 34 RI for RCC No.885/2018 r/w 34 IPC 1 year u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI RI for 1 year 5 Juna Rajwada Police Offence u/s 25.10.2017 u/s. 457 IPC 10,000/- 3 months SI Stn. CR NO.114/2017 457, 428, r/w 34 RI for RCC No.517/2018 380 r/w 34 2 years IPC u/s 428 IPC r/w 34 RI for 6 months u/s 380 IPC 5000/- 3 months SI r/w 34 RI for 1 year 6 Juna Rajwada Police Offence u/s 25.10.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR No. 454,457, r/w 34 RI for 290/2016 RCC 380 r/w 34 1 year No.112/2018 IPC u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI r/w 34 RI for 1 year Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 4/15 Judgement-Wp(St)-12437-2024.doc 7 Juna Rajwada Police offence u/s 25.10.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR NO.87/2017 454, 457, r/w 34 RI for RCC NO.110/2018 380 r/w 34 1 year IPC u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI r/w 34 RI for 1 year 8 Rajaram Puri Police Accused 09.03.2018 u/s. 457 IPC 10,000/- 3 months SI Stn. CR No.159/2017 No.5 offence r/w 34 RI for RCC No.331/2018 u/s 457, 2 years 5,000/- 3 months SI 380, r/w 34 u/s 380 IPC of IPC r/w 34 RI for 1 year 9 Rajaram Puri Police Offence u/s 22.08.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR No.14/2017, 454, 457, r/w 34 RI for RCC No.284/2018 380 r/w 34 1 year IPC u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI r/w 34 RI for 1 year 10 Juna Rajwada Police Offence u/s 31.08.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR 454,457, r/w 34 RI for NO.119/2017 RCC 380, 511 1 year No.317/2018 r/w 34 IPC u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI r/w 34 RI for 1 year u/s 511 of IPC r/w 34 RI for 1 year 11 Gandhi Nagar Police Offence u/s 04.10.2017 u/s 457 IPC 10,000/- 3 months SI Stn. CR NO.92/2017 457, 380 r/w 34 RI for RCC No.786/2018. r/w 34 IPC 2 years u/s 380 IPC 5,000/- 3 months SI r/w 34 RI for 1 year 12 Shahupuri Police Offence u/s 28.07.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR No.37/2017 454, 457, r/w 34 RI for RCC No.835/2018 380 r/w 34 1 year IPC u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI r/w 34 RI for 1 year 13 Rajarampuri Police offence u/s 29.08.2017 u/s. 454 IPC 5,000/- 3 months SI Stn. CR NO.61/2017 454,457, r/w 34 RI for RCC No.220/2018 380,411 r/w 1 year 34 IPC u/s 457 IPC 10,000/- 3 months SI r/w 34 RI for 2 years u/s 380 IPC 5000/- 3 months SI Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 5/15 Judgement-Wp(St)-12437-2024.doc r/w 34 RI for 1 year 14 Rajarampuri Police offence u/s 31.10.2017 U/s. 454 IPC 5,000/- 3 months SI Stn. 454, 457, r/w 34 RI for CR No.87/2017, 380 r/w 34 1 year 10,000/- 3 months SI RCC no.54/2018 IPC u/s 457 IPC r/w 34 RI for 2 years 5000/- 3 months SI u/s 380 IPC r/w 34 RI for 1 year
3. The Petitioners were also convicted in six more CRs vide Judgments dated 22.08.2019, wherein the maximum punishment imposed in all the offences is two years of rigorous imprisonment with fine of Rs.1,000/- It was further directed, in default of making payment of fine of Rs.1000/-, the convicts shall further undergo simple imprisonment for one year. The details of the sentence in four Judgments dated 22.08.2019 are given in a tabular form by the Petitioners which is as under
:
Sr. Police Conviction Fine
C.R. No. Case No. Sentence
No Station U/s. of IPC Status
1. 104/2016 Panhala 1. 457 r/w RCC No. 1. Two years Not
34 of IPC. 10/2018 R.I. with fine paid
Rs. 1,000/- (i.d.
1 month)
2. 380 r/w 2. Two years
34 of IPC. R.I. with fine
Rs. 1,000/- (i.d.
1 month)
2. 13/2017 Kale 1. 454 r/w RCC No. 1. Two years R.I Not
34 of IPC. 02/2018 with fine Rs. Paid
1,000/- (i.d. 1
month)
2. 457 r/w. 2. Two years R.I
34 of IPC. with fine Rs.
Chaitanya
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1,000/- (i.d. 31
month)
3. 380 r/w. 3.Two years R.I
34 of IPC with fine Rs.
1,000/- (i.d. 1
month)
3. 32/2017 Shahuwadi 1. 454 r/w. RCC No. 1. Two years R.I Not
34 of IPC. 14/2018 with fine Rs. Paid
1,000/- (i.d. 1
month)
2. 457 r/w. 2. Two years R.I
34 of IPC. with fine Rs.
1,000/- (i.d. 1
month)
3. 380 r/w. 3. One year R.I
34 of IPC. with fine Rs.
1,000/- (i.d. 1
month)
4. 20/2017 Kale 1. 454 r/w. RCC No. 1. Two years R.I Not
34 of IPC. 231/2018 with fine Rs. paid
1,000/- (i.d. 1
month)
2. 457 r/w. 2. Two years R.I
34 of IPC. with fine Rs.
1,000/- (i.d. 1
month)
3. 380 r/w. 3. Two years R.I
34 of IPC. with fine Rs.
1,000/- (i.d. 1
month)
5. 10/2017 Shahuwadi 1. 454 r/w. RCC No. 1. One year, Six No
34 of IPC. 78/2018 Months
2. 457 r/w. 2. One year, Six
34 of IPC. Months
3. 380 r/w. 3. One year, Six
34 of IPC. Months
6. 13/2017 Shahuwadi 1. 454 r/w. RCC No. 1. One year, Six No
34 of IPC. 07/2019 Months
2. 457 r/w. 2. One year, Six
34 of IPC. Months
3. 380 r/w. 3. One year, Six
34 of IPC. Months
Chaitanya
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4. It is the contention of the Petitioners that they were further convicted in two CRs by Judgment dated 22.11.2018. They were convicted and sentenced for maximum punishment of two years and all the sentences were directed to run concurrently with fine of Rs.1,000/- for each of the offences for which the Petitioners were convicted. In default of making payment of fine, it was directed that the convicts shall further undergo simple imprisonment for one month. The details of two Judgments whereby the punishment has been imposed are produced by the Petitioners which reads thus :
Sr. Police Conviction Fine
C.R. No. Case No. Sentence
No Station U/s. of IPC Status
1. 83/2017 Juna 1. 457 r/w RCC No. 1. Two years Not
Rajwada 34 of IPC. 935/2017 R.I. with fine paid
Rs. 1,000/- (i.d.
1 month)
2. 380 r/w 2. Two years
34 of IPC. R.I. with fine
Rs. 1,000/- (i.d.
1 month)
2. 37/2017 Juna 1. 457 r/w RCC No. 1. Two years Not
Rajwada 34 of IPC. 936/2017 R.I. with fine paid
Rs. 1,000/- (i.d.
1 month)
2. 380 r/w 2. Two years
34 of IPC. R.I. with fine
Rs. 1,000/- (i.d.
1 month)
5. It is contended by the Petitioners that in all the Judgments whereby they have been convicted, the maximum Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 8/15 Judgement-Wp(St)-12437-2024.doc punishment imposed is of two years imprisonment and all the punishments are directed to run concurrently. However, if the Petitioners make a default in payment of fine, they are required to undergo in-default sentence of 123 months i.e. 10 years and 3 months.
It is the contention of the Petitioners that they have completed the substantive sentence and they have already undergone the considerable period of in-default sentence which is more than 50% of the in-default sentence as on date.
6. The Petitioners have relied on the Judgment and order dated 09.05.2024 passed by this Court in Writ Petition No. 2704 of 2023. This Court has applied via-media while waiving off the period of in-default sentence by 50% and had directed the Jail Authority to release the co-accused No.3 i.e. Rameshwar @ Pamya Chhana Shinde after completion of 50% of in-default sentence. The Petitioners have placed on record the Judgment dated 09.05.2024 and are therefore seeking parity with the co-accused and has made a following prayer :
"a) This Hon'ble Court be pleased to wave-off the remaining sentence of in-default sentence and Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 9/15 Judgement-Wp(St)-12437-2024.doc direct the Respondent No.2 or such concerned authority of the State of Maharashtra to release the Petitioner's at the earliest."
7. On this background when the matter was heard by us on 23.09.2024, we had called upon the learned A.P.P. Ms. Kaushik to obtain necessary instructions in this regard. When the matter was listed on 11.10.2024, the learned A.P.P. on instructions of the Superintendent of Central Prison, Kolhapur, has informed us that, the Petitioner No.1 i.e. Sikandar Govind Kale has been already released from the prison. Therefore, by order dated 11.10.2024 we have directed the learned A.P.P. to seek instructions whether the Petitioner Nos.2 and 3 can be extended similar relief.
When the matter was listed on 19.11.2024, the learned A.P.P. has produced on record a communication addressed to the learned A.P.P. dated 12.11.2024, wherein it is informed that when co-accused Rameshwar @ Pamya Chana Shinde had approached this Court in Criminal Writ Petition No. 2704 of 2023, after taking into consideration that the Petitioner has already undergone substantive sentence and has also completed more than 50% of in-default imprisonment. Relying on the observations made by the Hon'ble Apex Court Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 10/15 Judgement-Wp(St)-12437-2024.doc in case of Ammavasai And Anr. V/s. Insector of Police, Valliyanur And Ors., reported in 2000(9) SCC 749 : AIR 2000 SC 4544, wherein the Hon'ble Apex Court had adopted the principle of via-media and had given benefit to the Appellants, by directing to undergo lesser sentence than prescribed by the trial Court in each case. This Court has also adopted a similar approach of via-media and released the co-accused who had already undergone more than 50% of total in-default sentence, by waiving off rest of the 50% of sentence.
8. The concerned authority has also brought to our notice that another co-accused that is the Petitioner No.1 in present Writ Petition i.e. Sikandar Govind Kale had also filed Criminal Writ Petition No. 1148 of 2024, wherein this Court has also taken a liberal approach and has been pleased to reduce the fine amount imposed upon him for the offence punishable under Section 457 of the IPC, from Rs.10,000/- to Rs.5,000/-, holding that the fine amount is excessive.
While considering the case of the Petitioner in the said Writ Petition who happens to be the co-accused of the present Petitioner, it is observed that while the Petitioner has undergone substantive sentence, due to his inability to pay fine Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 11/15 Judgement-Wp(St)-12437-2024.doc amount which comes to the tune of Rs. 2,65,000/- on account of abject poverty, he was not in a position to pay the said fine amount. As a result of which he would further require to undergo nine years imprisonment for making default in payment of fine imposed on him in various offences. Though the substantive sentence which was awarded to the accused could run concurrently, however considering the position of law it does not permit the default sentence to run concurrently. The convicts undergoing default imprisonment are required to remain incarcerated for a long period although they have already undergone substantive sentences.
9. This Court has observed that, in view of the decision of the Hon'ble Apex Court in case of Sharad Hiru Kolambe V/s. State of Maharashtra And Ors., reported in AIR OnLine 2018 SC 289, which was relied by the learned A.P.P. to oppose the relief prayed for, which lays down that it is not permissible that sentences in lieu of deposit of fine to run concurrently, as a result after convict undergoes the default sentence in one case for one offence he will have to undergo default sentence in other offence. This being the position of law. Considering that the Magistrate had imposed fine of Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 12/15 Judgement-Wp(St)-12437-2024.doc Rs.10,000/- on the Petitioner on being convicted under Section 457 of the IPC and Rs.5,000/- for conviction under Section 454 and 380 of the IPC, relying on Section 64 of the IPC, which reads thus :
"64. Sentence of imprisonment for non- payment of fine.--
[In every case, of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment, and in every case of an offence punishable with imprisonment or fine, or] with fine only, in which the offender is sentenced to a fine,] it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, in which 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."
This Court has observed that Section 64 of the IPC prescribe sentence of imprisonment for non payment of fine and in every case, of an offence punishable with imprisonment as well as fine, it shall be competent for the Court to prescribe Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 13/15 Judgement-Wp(St)-12437-2024.doc the sentence that the accused will undergo in default of fine with the only restriction, that the imprisonment so imposed shall not be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under commutation of sentence. Therefore, this being the reason the Petitioner was required to undergo three months of simple imprisonment for each offence in each case.
Therefore, taking into consideration the abject poverty which the Petitioner was facing due to which he could not pay fine and was required to further undergo imprisonment for a prolonged period, taking a sympathetic approach this Court has reduced the fine imposed, while recording conviction under Section 457 of the IPC from Rs.10,000/- to an appropriate amount of Rs.5,000/-, by issuing directions as under :
"Thus, by directing the reduction of fine amount on being convicted for offence under Section 457 to Rs.5,000/-, in the interest of justice, we deem it appropriate that the incarceration suffered by the Petitioner on undergoing substantive sentences imposed on him in 14 cases from May 2020, till the date of passing of this order, shall be considered to be the default sentence undergone by him for not paying the fine."
Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 14/15 Judgement-Wp(St)-12437-2024.doc As a result of the directions issued by this Court, the Petitioner No.1 has been released.
10. The Prison Authorities have produced before us the nominal table of Petitioner Nos.2 and 3. According to the said table, Petitioner No.2 is required to undergo imprisonment for a period of 10 years and 9 months for default in payment of fine and he has already undergone 7 years 1 month and 12 days. He has not paid the fine amount therefore he is required to further undergo 3 years 8 months and 12 days, of imprisonment for the default in payment of fine.
Similarly, the Petitioner No.3 Rajendra Aba Kale who is also required to undergo total imprisonment of 10 years 9 months for making default in payment of fine, has already undergone 7 years 1 months and 12 days default imprisonment. He has also not paid any fine amount therefore, he is required to further undergo 3 years 8 months and 12 days imprisonment for making default in payment of fine.
11. Since all the Petitioners in the present case as well as the Petitioners in the Writ Petition No. 2704 of 2023 and Writ Petition No.1148 of 2024, are co-accused in the same Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 ::: 15/15 Judgement-Wp(St)-12437-2024.doc offences, as observed herein above, we have already taken a view while deciding the Writ Petition No.1148 of 2024 dated 27.06.2024. Therefore we do not see why a different treatment should be given to them, as a result we direct the release of the Petitioners from the Jail by waiving off the rest of the in- default sentence by setting them at liberty.
As a result, Rule made absolute in terms of prayer clause (a).
The Jail Superintendent shall act upon the authenticated copy of this order and release the Petitioners forthwith.
(MANJUSHA DESHPANDE, J.) (BHARATI DANGRE, J.) Chaitanya ::: Uploaded on - 28/11/2024 ::: Downloaded on - 29/11/2024 00:28:17 :::