Madras High Court
M. Balasubramanian vs State Rep By on 27 March, 2012
Bench: K. Mohan Ram, G.M. Akbar Ali
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.3.2012
CORAM
THE HON'BLE MR.JUSTICE K. MOHAN RAM
AND
THE HON'BLE MR.JUSTICE G.M. AKBAR ALI
Habeas Corpus Petition No.960 of 2011
M. Balasubramanian ... Petitioner
Vs.
State rep by
1. The Inspector of Police
SPE/CBI/ACB
Chennai, (RC 18(A)/93)
2. The Superintendent
Central Prison 1, Puzhal
Chennai-66 .. Respondents
-----
Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus directing the 2nd respondent to produce M. Balasubramanian S/o Marimuthupillai, aged about 54 years who is convicted as per the judgment made in C.C.No.9/2000 to 11/20000, C.C.23/2000 to 51/2000 by the learned Additional Special Judge for CBI Cases, Chennai as convict prisoner under illegal detention more than 6 years and 4 months.
For Petitioner : Mr.M. Radhakrishnan for
P.K. Ilavarasan
For Respondent : Mr.A.N. Thambi Durai
Addl.Public Prosecutor
O R D E R
G.M. AKBAR ALI,J., The petitioner was confined in Central Prison, Puzhal, Chennai on the basis of common judgment made in C.C No.9 of 2000 to C.C No.11 of 2000 and C.C.No.13 of 2000 to 51 of 2000 by the learned Additional Special Judge for CBI for offences under Sec.477-A, 468, r/w 471, 420 IPC and under Sec.13 (1)(d) r/w 13(1) (2) of PC Act. There are 41 cases. The conviction and sentence passed against the appellant in each case is detailed hereunder:
S.No Convicted for offences Sentence Fine (Rs.) Default Sentence 1 477-A IPC
2 yrs R.I 2 468 IPC 2 yrs R.I 1500/-
2 Months R.I 3 468 r/w 471 IPC 2 yrs R.I 1500/-
2 Months R.I 4 13(1)(d) r/w 13(2) of P.C. Act 2 years R.I 2000/-in each case The sentence of imprisonment in all the cases are ordered to run concurrently with a benefit of set off under Sec.428 Cr.P.C. However the total fine amount payable was Rs. 2,10,000/- The default sentence will run to 252 months. The relief sought in this petition is to order the default sentence to run concurrently.
2. The facts of the case, in brief, is as follows:
The petitioner is in jail from 16.12.2002 till date i.e., for more than 8 = years. The maximum punishment imposed on the above cases is only 2 years R.I for each offence and all the sentences were ordered to run concurrently. However, the fine amount imposed in each calender case was Rs.5000/-, thereby a total sum of Rs.2,10,000/- has became payable. Since the fine amount could not be paid as the petitioner is poor, he is undergoing the imprisonment .
3. According to the petitioner the benefit of Sec.428 Cr.P.C applies not only to the substantive sentence, but also to the imprisonment in default of payment of fine. The petitioner is in judicial custody for more than two years, which is the maximum sentence, but he was undergoing imprisonment for the past six and half years, which is illegal and therefore, the petition is filed.
4. On notice, the respondent filed a counter. The main contention raised by the respondent is that as per the common judgment, in all the Calendar cases, the appellant was sentenced to undergo 2 years RI for all the offences and in all the cases the sentences were ordered to run concurrently. However, he has been imposed a fine of Rs.2,10,000/- with default clause.
5. The total sentence works out to be 2 years and 252 months of default sentence for non payment of fine. The due date of the petitioner's release is only on 15.12.2025.
6. As per Rule 242 (1) of the Tamil Nadu Prison Manual Vol.II sentences imposed in default of payment of fine cannot run concurrently. Therefore, the petition is liable to be dismissed.
7. Supporting the contention of the petitioner, Mr.Radhakrishnan, learned counsel for the petitioner submitted that Sec.428 Cr.P.C applies not only in relation to a substantive sentence of imprisonment but also in relation to a sentence of imprisonment in default of payment of fine amount. The learned counsel pointed out that for default in payment of fine amount if consecutive sentence is imposed, the petitioner has to undergo 252 months imprisonment, equivalent to 21 years, which is against the law of the land. The maximum substantive sentence imposed was only 2 years, which was ordered to run concurrently and while imposing the fine the trial court has stated that in default, the petitioner has to undergo sentence of two months for each default. When the judgment is silent about whether the default period is to run either concurrently or consecutively it has to be construed that the default sentences also to run concurrently.
8. The learned counsel pointed out that in any event, the default sentence cannot exceed < of the term of imprisonment and in the case on hand, when the maximum sentence imposed was only two years, the petitioner is in custody for more than 8= years and the contention of the authorities that he has to undergo further sentence till 2025 is against law and therefore illegal detention.
9. The learned counsel relied on a decision reported in AIR 1975 SC 164 (Boucher Pierre Andre vs Superintendent, Central Jail, Tihar, New Delhi and another) where the Apex Court has considered Sec.428 Cr.P.C and has held as follows:
Section 428 applies not only in relation to a substantive sentence of imprisonment but also in relation to a sentence of imprisonment in default of payment of fine. The period for which an accused person has been detained during investigation, inquiry or trial of the case is liable to be set off not only against the term of substantive imprisonment but also against the term of imprisonment in default of payment of fine. The set off, however, does not absolve the accused person from the liability to pay the fine imposed on him.
10. He also relied on a decision reported in AIR 1987 SC 1333, (Ram Das Ram vs State of Bihar and another), wherein the Apex Court has held thus:
Held, that the petitioner was wrongfully detained in Jail without any lawful justification. After his acquittal in both the Sessions Cases there was no warrant for detaining him in Jail. The production warrant issued by the Judicial Magistrate for trial under Ss.147, 148, 323, 324 of IPC was without justification. The petitioner had been in jail for more than eight years and even if he were to be convicted for having committed the alleged offences punishable under Ss,147, 148, 323 and 324 of the Penal Code, he would have in the meanwhile served, out the sentence.
11. He also relied on a decision reported in 2007 (11) SCC 243 (Shantilal vs State of M.P), wherein the Apex Court has held as follows:
It appears to us that the punishment of fine is a peculiarly appropriate punishment for all offences to which men are prompted by cupidity; for it is a punishment which operates directly on the very feeling which impels men to such offences. A man who has been guilty of great offences arising from cupidity, of forging a bill of exchange, for example, of keeping a receptacle for stolen goods, or of extensive embezzlement, ought, we conceive, to be so fined as to reduce him to poverty. That such a man should, when his imprisonment is over, return to the enjoyment of three-fourths of his property, a property which may be very large and can be laid down, it being a matter of discretion which is to be guided by a variety of considerations but the Court must always bear in mind the necessity of maintaining a proportion between the offence and the penalty proposed for it.
12. The learned counsel further relied on a decision reported in 1984 Crl L.J 447 (Chinnasamy vs State of Tamil Nadu and Others),wherein the Division Bench of this Court has held as follows:
In view of this position, it follows that the benefit of set-off given to the petitioner in the first case cannot be denied to him in the second and third cases as well
13. On the contrary, the Mr.A.N. Thambi Durai, the learned Additional Public Prosecutor submitted that while calculating the sentence of imprisonment in default of payment of fine, the sentence cannot run concurrently and relied on Rule 242 (1) of Tamil Nadu Prison manuals which reads follows:
(1) Sentences imposed in default of payment of fines cannot run concurrently.
14. We have carefully considered the submissions made on either side and heard and perused the materials available on record.
15. The facts are admitted and the petitioner is convicted in 41 cases. The maximum sentence imposed was only two years in all the forty one cases for each offence and the substantive sentence of imprisonment were ordered to run concurrently.
16. However, the Court has imposed fine ranging from Rs.1500/- to Rs.2000/- for some of the offences. The default sentences comes to 252 months and the amount of fine arrived at Rs.2,10,000/-.
17. While considering the minimum fine that could be imposed the Apex court in 2007 (11) SCC 243 (Shantilal vs State of M.P), cited supra, has considered Sec.30(1)(b) of Cr.P.C which authorises the Court to award imprisonment in default of payment of fine upto < term of imprisonment which the court is competent to inflict as punishment for the offence.
18. In AIR 1975 SC 164 (Boucher Pierre Andre vs Superintendent, Central Jail, Tihar, New Delhi and another) cited supra, the Apex Court had dealt with Sec.428 Cr.P.C and has held that Sec.428 Cr.P.C applies not only in relation to the substantive sentence of imprisonment but also in relation to the sentence of imprisonment in default of payment of fine and further held that the set off however, does not absolve the accused persons from the liability to pay fine imposed on him.
19. In 1984 Crl L.J 447 (Chinnasamy vs State of Tamil Nadu and Others cited supra a Division Bench of this Court had considered a case of an accused convicted on the same trial on all the cases and ordered the sentences to run concurrently.
20. It is relevant to point out the provisions of law. Sec.30 and 31 of Cr.P.C reads as follows:
30. Sentence of imprisonment in default of fine.
(1) The court of a Magistrate may award such term of imprisonment in default of payment of fine as is authorised by law: Provided that the term-
(a) Is not in excess of the powers of the Magistrate under section 29;
(b) Shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of the fine. (2) The imprisonment awarded under this section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under section 29.
31. Sentence in cases of conviction of several offences at one trial.
(1) When a person is convicted at one trial of two or more offences, the court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments, prescribed therefore which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the court may direct, unless the court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment, which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court:
Provided that-
(a) In no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) The aggregate punishment shall not exceed twice the amount of punishment, which the court is competent to inflict for a single offence. (3) For the purpose of 'appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence.
21. Under Sec.30 the Court may award such term of imprisonment in default of payment of fine but which shall not exceed < of the term of imprisonment which the competent court can inflict as punishment for that offence. Sec.31 empowers the court to order a concurrent undergoing of imprisonment when a person is convicted at one trial for two or more offences. If there are more than one trial, as per the decision reported in 1984 Crl L.J 447 (Chinnasamy vs State of Tamil Nadu and Others cited supra the sentences awarded can also be directed to run concurrently in all the cases.
22. Sec.427 of Cr.P.C deals with the power of the Court to direct the subsequent sentence to run concurrently with a previous sentence when a person is already undergoing a sentence of imprisonment in a previous case.
23. Sec.428 Cr.P.C deals with the period of detention already undergone by the accused to be set off against the sentence of imprisonment. However, Sec.428 has a rider which states that where an accused person has, on conviction, been sentenced to imprisonment for a term, not being an imprisonment in default of payment of fine, the period of detention undergone during the investigation, inquiry or trial shall be set off. Therefore, an imprisonment in default of payment of fine is excluded.
24. Obviously, Sec.428 Cr.P.C is not applicable for the reason that in the present case we are not considering the period already undergone by an accused during the remand or trial period .
25. Under Sec.31 of Cr.P.C, if a person is convicted and sentenced for several punishments such punishment commences one after the other unless the court directs such punishment shall run concurrently. There is no prohibition for the court to order the default sentences also to run concurrently either under Sec.30 or 31 of Cr.P.C. However, Rule 242 of Prison Manual alone would state that while calculating the sentence of imprisonment, sentence imposed in default of payment of fine, cannot run concurrently.
26. In our considered opinion, the Rule cannot prevail over the provision under the statute of Code of Criminal Procedure. The fine is imposed as an appropriate punishment which operates directly on the very feeling which impelled a person to commit such offene. However, Sec.30 of the Code makes a reasonable restriction.
27. When a person is very poor and because of his poverty he could not pay the fine amount and is ordered to remain in jail even after the period of substantive sentence of imprisonment is over, a serious prejudice would be caused to the person. This principle has been laid down by the Apex Court in 2007 (11) SCC 243 (Shantilal vs State of M.P),
28. In the words of Justice V.R. Krishna Iyer, Equally meaningful is the import of Article 21 of the Constitution in the context of imprisonment for non-payment of debts. The high value of human dignity and the worth of the human person enshrined in Article 21, read with Articles 14 and 19, obligates the State not to incarcerate except under law which is fair, just and reasonable in its procedural essence.
It is too obvious to need elaboration that to cast a person in prison because of his poverty and consequent inability to meet his contractual liability is appalling. To be poor, in this land of Daridra Narayanans (land of poverty) 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 and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to section 51, C.P.C and the lethal blow of Article 21 cannot strike down the provision, as now interpreted.
29. When this land is of more of Daridranarayanans and when the petitioner has committed such offences under Secs. 477-A, 468, 468 r/w 471 IPC and 13(1)(d) r/w 13(2) of P.C.Act 1988, driven by some impulsion or greed, allowing him to remain in jail even after the period of substantive sentence, is affront to Article 21 of Constitution of India. Therefore, we are of the considered view, that after completion of substantive sentence of imprisonment of two years, the petitioner had already undergone a further period of 6= years, which is more than enough to satisfy the default period. Otherwise, he has to undergo imprisonment for a further period of 13 years till 2025, which is nothing but a mockery on the life and liberty of an individual, a fundamental right as enshrined in Part III of the Constitution of India.
30. Under Article 226 of the Constitution, this Court has a power to enforce the fundamental rights by passing suitable orders. Therefore, we are of the considered view that the detenue is in illegal detention after completion of substantive sentence of imprisonment of two years and a further 6= years towards default of payment of fine amount and entitled to be set at liberty.
31. In the result, the petition is allowed and petitioner is set at liberty and ordered to be released unless he is required in connection with any other case or cause.
(K.M.J.,) (G.M.A.J.,)
27-03-2012
sr
Index:yes
website:yes
Note: Issue order copy today
To
1. The Inspector of Police
SPE/CBI/ACB
Chennai, (RC 18(A)/93)
2. The Superintendent
Central Prison 1, Puzhal
Chennai-66
K. MOHAN RAM,J.,
AND
G.M. AKBAR ALI,J.,
sr
Pre-Delivery Order in HCP No.960 of 2011
27-03-2012