High Court
Legal Reasoning
CriAppeal-653-2024+-4- for 3 years and to pay a fine of Rs. 1,000/-[Rs. One Thousand ], indefault, he shall undergo further rigorous imprisonment for 06 month.05] An amount of Rs.25,000/- (Rs. Twenty five thousand only) out oftotal fine of Rs.26,500/-[Rs. Twenty Six Thousand and Five Hundred]be paid to victim or her guardian vide Section 357 of CriminalProcedure Code as compensation; after appeal period is over.06] All the substantive sentences shall run concurrently.07] The accused is in jail. The period of inquiry, investigation andtrial since 10-04-2016 till today undergone by the accused, be set offvide Section 428 of the Code of Criminal Procedure.08] The seized muddmel i.e red-black coloured motorcycle[ Passionpro] bearing No. MH-26-AH-8412 was already given to its registeredowner is made absolute and remaining seized muddemal beingworthless be destroyed; after appeal period is over.”6.Now, concern of the appellant is his inability to pay the fine tothe tune of Rs.26,500/-, and it is further case that, if he fails to paythe fine amount, he would be further required to undergo in defaultsentence. Recourse is taken to the judgment and order of this Court atits Principal Seat in the case of Sikandar Govind Kale (supra). Afterdealing with the legal precedents, this Court in the said case hadpassed detailed order assigning reasons for allowing the writ petition,and particularly in para 14 onward, we find discussion on theinability to deposit the fine amount. In the interest of justice, thisCourt is the said case, in para 16 and 17, has observed thus : CriAppeal-653-2024+-5- “16] Section 30 of the Code of Criminal Procedure, 1973, inaddition, prescribe that the sentence of imprisonment awarded indefault of fine may be in addition to a substantive sentence ofimprisonment, for the maximum term which is awardable by theMagistrate under Section 29 of the Code.Since it is not permissible to direct the concurrent running ofthe default sentences, and since we find that the fine imposed onrecording conviction under Section 457 i.e. Rs. 10,000/- is excessive,we deem it appropriate to reduce the same to Rs.5,000/-.In addition, taking into consideration the financial position ofthe Petitioner as he is unable to deposit the fine, we find that theimposition of default sentences of 3 months on each count is onhigher scale and we deem it appropriate, to direct that byconsidering his detention in prison above May 2020 should beconsidered as default sentence undergone, in lieu of the fineimposed in all the 14 cases, on all three counts i.e. Section 454, 457and 380 of the IPC.Thus, by directing the reduction of fine amount on beingconvicted for offence under Section 457 to Rs.5,000/-, in the interestof justice, we deem it appropriate that the incarceration suffered bythe Petitioner on undergoing substantive sentences imposed on himin 14 cases from May 2020, till the date of passing of this order, shallbe considered to be the default sentence undergone by him for notpaying the fine.17] We must keep in mind that alongwith the justice, magnanimityis one of the "twin peaks" of moral virtue and "Justice is not anartificial virtue", but it necessarily embrace magnanimity and inexercise of inherent jurisdiction vested in us, to prevent the abuse ofprocess of law, in favour of the Petitioner, who merely because of hisinability to pay the huge amount of fine continue to be incarcerated,we deem it appropriate to direct his release by reducing the sentenceof imprisonment, in default to the period of imprisonment alreadyundergone by him till the date of passing of the order. CriAppeal-653-2024+-6- We direct release of the Petitioner from Jail forthwith andfrom this moment, he shall be set at liberty.The learned APP shall communicate this order to the JailSuperintendent, Kalamba Central Prison, Karveer, Kolhapur, wherethe Petitioner is presently detained and the Jail Superintendent shallact upon the authenticated copy of this order and release thePetitioner forthwith.Petition is made absolute in the aforesaid terms.”7.Learned counsel for the applicant has made a statement acrossthe bar that applicant was a labour and he is behind bars since almostnine years, and therefore, he is not in position to raise the fineamount. Therefore, when facts in the case in hand and the facts in thecase relied upon being almost identical, there is no reason to refusethe prayer. Hence, the following order is passed : ORDERI.The appeal is hereby partly allowed. II.The conviction awarded to the appellant Sahebrao @ Chorbalyas/o Devidas Gajbhare by learned Additional Sessions Judge-3 &Special Judge, Nanded in Special Case [POCSO] No. 18 of 2016under Sections 376(2)(i) and (n), 377, 363, 366(A) of IPC andSections 4 and 6 of the Protection of Children from Sexual OffencesAct, 2012 on 13.03.2019 is hereby maintained. CriAppeal-653-2024+-7- III.The Substantive sentences imposed on the appellant videclauses [02], [03] and [04] of the operative part of the abovejudgment and order dated 13.03.2019 are also maintained.HOWEVERIV.The sentences regarding payment of fine vide clauses [02], [03]and [04] of the operative part of the above judgment and orderdated 13.03.2019, and in default, to undergo furtherimprisonment for six months, two months and six monthsrespectively, are hereby quashed and set aside.V.Rest of the impugned judgment and order is kept intact.VI.In view of disposal of the appeal, pending application also standsdisposed off.VII.Fees of the counsel appointed to represent the appellant, as wellas respondent no.2, be paid by the High Court Legal ServicesSub-Committee, Aurangabad as per Rules. [ABHAY S. WAGHWASE, J.]vre
Arguments
CriAppeal-653-2024+-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 653 OF 2024WITH CRIMINAL APPLICATION NO. 2926 OF 2024IN CRIMINAL APPEAL NO. 653 OF 2024Sahebrao @ Chorbalya s/o Devidas Gajbhare,Age 30 years, Occupation Nil,R/o In front of Baudhvihar,Dhanegaon, Taluka and District Nanded.At present Harsul Central Jail atAurangabad.… ApplicantVersus1.The State of MaharasthraThrough Police Station, Rural,Nanded, Taluka and District Nanded.2.X Y Z… Respondent…..Mr. G. A. Gadhe, Advocate for the Appellant/Applicant (appointed)Mrs. Vaishali S. Chaudhari, APP for Respondent No.1-State.Ms. Archana Jadhavar, Advocate for Respondent No.2 (appointed)..... CORAM :ABHAY S. WAGHWASE, J. DATED :13.03.2025ORDER : 1.Present appeal was received through jail and hence learnedcounsel Mr. G. A. Gadhe was appointed to represent the appellantvide order dated 10.07.2024. 2.Today, learned counsel appointed for the appellant hastendered across the bar written notes of arguments and has thereby CriAppeal-653-2024+-2- restricted the appeal only to the extent of waiving of fine amount, indefault of payment of which, further fourteen months imprisonmentis awarded. The said notes of arguments dated 10.03.2025 are takenon record and marked “X” for identification.3.Learned counsel for the appellant submitted that, the maximumsentence awarded to the appellant is of imprisonment for 10 yearsand he is behind bars since 10.04.2016 i.e. since almost nine years.That, appellant has no financial means and source to pay the fineamount. Therefore, prayers are confined to waiving of the payment offine amount. Learned counsel has sought reliance on the judgmentand order of this Court at its Principal Seat in Sikandar Govind Kalev. State of Maharashtra and another [Criminal Writ Petition No. 1148of 2024 decided on 27.06.2024] as, according to him, incarcerationdue to inability to pay fine is violative of Article 21 of the Constitutionof India, when substantive sentence is almost suffered and when thereis sentence to be suffered only in default on account of non-paymentof fine amount.4.Learned APP as well as learned counsel appointed to representrespondent no.2 formally opposed. Learned APP conceded to passappropriate order. CriAppeal-653-2024+-3- 5.Perused the papers. It appears that present appellant wasbooked for commission of offence punishable under Sections 363,366(A), 376(2)(i)(n), 377 of IPC and Sections 3, 4, 5 r/w 6 of theProtection of Children from Sexual Offences Act, 2012. By thejudgment and order dated 13.03.2019 passed in Special Case[POCSO] No. 18 of 2016, the learned trial Judge has convicted theappellant as under :“01] The accused Sahebrao @ Chorbalya S/o Devidas Gajbhare, Age22 Yrs, Occu. Nil R/o in front of Baudhvihar Dhanegaon Tq. and Dist.Nanded is found guilty of the offences punishable under Sections 376(2) (i) and (n), 377, 363, 366-A of the Indian Penal Code andSections 4 and 6 of The Protection of Children From Sexual OffencesAct, 2012 vide Section 235(2) of the Code of Criminal Procedure.02] The accused Sahebrao @ Chorbalya S/o Devidas Gajbhare isconvicted for the offence punishable under Section 376 (2) (i) and (n)of the Indian Penal Code vide Section 235 (2) of the Code of CriminalProcedure and sentenced to undergo rigorous imprisonment for 10years (Ten years) and to pay a fine of Rs.25,000/- [Rs. Twenty fivethousand only], in default, he shall undergo further rigorousimprisonment for six months.03] The accused is convicted for the offence punishable under Section363 of the Indian Penal Code vide Section 235(2) of the Code ofCriminal Procedure and sentenced to undergo Rigorous Imprisonmentfor 1 year and to pay a fine of Rs. 500/-[Rs. Five Hundred], in default,he shall undergo further rigorous imprisonment for 02 month.04] The accused is convicted for the offence punishable under Section366-A of the Indian Penal Code vide Section 235(2) of the Code ofCriminal Procedure and sentenced to undergo Rigorous Imprisonment