Sanjeev Moses Davidson vs Central Jail No. 2 Tihar, New Delhi

Pradeep Nandrajog, J.—Petitioner stands incarcenated at Tihar Jail pursuant to the warrant of commitment on a sentence of imprisonment issued by the District Consumer Forum. The warrant reads as under:- To the Officer-In-charge of Jail at Tihar Jail, New Delhi "Whereas on 5-3-1999 Sanjeev Moses Davidson S/o Shri I. Davidson R/o D-105, Vidisha Apartment, I.P. Extension, Plot No. 79, Delhi-100 092, as in cases No. 514/98, 515/98, 516/98, 587/98, 588/97, 589/98, 590/98, 591/98, 744/98, 745/98, 746/98, 747/98, 748/98 and 749/98 of the Calender Year for 1999, was convicted before this Forum to undergo Simple Imprisonment of 2 years in all cases and also to pay Rs. 7,500/- in each case and in default of payment of fine, to further undergo Simple Imprisonment of 1 year in each case. All sentences shall run concurrently. This is to authorize and require you to receive the said convict into your custody in the said jail, together with this warrant and thereby carry the aforesaid sentence into execution according to law.

Dated this 5th March, 1999.

The petition which has been received from the jail yields the information that the petitioner was taken into custody to serve out the sentence on 5.3.1999 and continues to be in prison till date. The sentence was passed by the District Consumer Forum, Bunkar Vihar, Nand Nagri, Delhi in exercise of power conferred upon the Forum by and u/s 27 of the Consumer Protection Act, 1986. 2. As per the petition, the sentences imposed upon the petitioner were to run concurrently as per the warrant of commitment and therefore on 5.3.2002, having undergone 3 years imprisonment, petitioner was entitled to be set free. As per the petition, the jail authorities were interpreting the warrant as requiring the petitioner to undergo imprisonment of 2 years of substantive sentence to run concurrently in all cases and 1 year of sentence in default of payment of fine to run consecutively i.e. 14 years in all cases. This interpretation means that the petitioner had to undergo 16 years of imprisonment.

This court, in a matter relating to parole, had come across a case where a person had against him a similar conviction in 64 cases. Would said person be required to undergo 66 years of imprisonment? Realising the far reaching consequence of law on the subject, on 24.7.2003 we directed issuance of notice to the Attorney General for 19.8.2003.

In response to the court notice, the learned Attorney General rendered valuable assistance on 5.9.2003 on which date we heard arguments by all the counsels as well as the learned Attorney General.

Ms. Mukta Gupta, learned Counsel for the State contended and the learned Attorney General concurred that in matters pertaining to imprisonment, Section 31, of the Code of Criminal Procedure 1973 and Section 69 and Section 71 of the Indian Penal Code 1860 are relevant. We accordingly note the same.

Section 31 Cr.P.C. - 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 therefor 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.

Section 69 of the Indian Penal Code:-

Termination of imprisonment on payment of proportional part of fine - If, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid, the imprisonment shall terminate.

Section 71 of the Indian Penal Code:-

Limit of punishment of offence made up of several offences:- Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expressly provided.

Here lies the problem. Can a sentence of fine run concurrently?

In 15 I.C. 263 Emperor-Vs.-Akidullah it was held that Section 35 of the Criminal Procedure Code 1898 (similar to Section 31 of Cr.P.C. 1973) did not permit the passing of concurrent sentences of imprisonment in default of fines imposed for two or more offences. It was remarked in the course of the judgment.

In case of part payment of the fine it would be difficult to estimate what portion of which term of imprisonment should terminate u/s 69, Indian Penal Code.

In Emperor Vs. Subrao Sesharao, following the Sind judgment aforesaid it was held:

We agree with this Ruling Section 35, sub-section (1), only authorises concurrent punishments in the case of imprisonment or transportation. It does not for instance authorize concurrent fines. And a Magistrate, if he wants to make the fine for a second or further offence extremely light, in consideration of the fine already imposed for another offence, can easily make it nominal. Then if a Magistrate imposes a sentence of imprisonment in default of payment of the u/s 64 Indian Penal Code, the provisions of the section require that that term of imprisonment "shall be in excess of any other imprisonment to which he may have been sentence."

This implies that it cannot be made to run concurrently with another term of imprisonment. Then, as pointed out in the Sind ruling, a difficulty will arise in regard to the apportionment of a part payment of fine against the term of imprisonment in default u/s 69, Indian Penal Code. Moreover, it is not incumbent upon a Magistrate to impose a term of imprisonment in default. Section 64 merely says that "it shall be competent to the Court" to pass such a direction, and if the Magistrate wants to avoid giving a second term of imprisonment in default, he can refrain from making a direction under that section. Therefore we agree with the view put forward by the District Magistrate and supported by the learned Government Pleader.

We accordingly quash the direction of the Magistrate u/s 35, Criminal Procedure Code, that the sentences should run concurrently, except so far as it covers the one day''s rigorous imprisonment imposed for each of the two offences.

In AIR 1929 Sindh 179a the view was reiterated. It was held:

Accordingly we direct that the sentences of the Additional City Magistrate, should be amended so as to make it clear that the sentences of imprisonment in default of payment of fines should not run concurrently.

The Madras High Court followed the view Perumal Mudaliar Vs. The South Indian Railway Company, Limited,

It is not competent for the court to direct that sentences of imprisonment imposed for default in payment of fines should run concurrently. Such order, if passed is illegal; such direction can only be given in respect of sentences of imprisonment or transportation.

Allahabad comes the next. InV The State of Uttar Pradesh Vs. Bati and Others, it was held:

Section 69, Penal Code provides that if, before the expiration of the term of imprisonment fixed in default of payment, such a proportion of the fine be paid or levied that the term of imprisonment suffered in default of payment is not less than proportional to the part of the fine still unpaid the imprisonment shall terminate.

The illustration given under that section makes the position still clearer. If imprisonments in default of the payment of fine imposed for several offences are to run concurrently the application of S.69, Penal Code, will become impossible. There is also S.35, Criminal P.C. which provides for direction of sentences of imprisonment to be concurrent but it will be seen that it relates to substantive sentences of imprisonment and not to imprisonments in default of payment of fine.

The last judgment on the point is the decision of the Patna High Court reported as Mrityunjoy Bose Vs. State of Bihar and Another, was held:

It is undisputed, rather conceded and if I may say so, rightly, on behalf of the petitioner that the sentence of imprisonment imposed upon the petitioner in default of payment of one fine cannot be made concurrent with the substantive sentence of imprisonment imposed otherwise. This had to be conceded in view of the provision of section 64 of the Penal Code as also in view of a Bench decision of this Court in Bhedu Tatma and Others Vs. Hari Jha, But the argument on behalf of the petitioner is that in case there are two sentences of fine followed by two sentences of imprisonment in default of payment of fine the said sentences of imprisonment should also run concurrently especially when this was the direction given by the trial court. We have no hesitation in rejecting this argument. The bar imposed by section 64 of the Penal Code in making the sentences of imprisonment in default of payment of fine concurrent is attracted even though there are more than one sentences of fine imposed, followed by sentences of imprisonment in default of payment of fine.

(emphasis ours).

In the teeth of the aforesaid judicial pronouncement, consistently followed now for nearly a century, the petition before us comes from a prisoner whose personal freedom stands chained for non payment of the fine in 14 cases and in default is being made to suffer in prison for 14 years, for this is the way the jail authorities are interpreting and applying the law, ex-facie supported by half a dozen judicial pronouncements.

Is such deprivation of liberty illegal? Let us telescope the Constitution and focus on the issue under the supreme law of the land. Article 21 of the Constitution reads:-

Article-21: Protection of life and liberty:- No person shall be deprived of his life or personal liberty except according to procedure established by law.

Giving a human meaning to "procedure established by law", the Supreme Court in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, developed further in Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, . laid own the proposition that procedure established by law had to be fair, just and reasonable in its procedural essence. In the teeth of said judicial pronouncements, it is too obvious and hardly needs any elaboration that human dignity and the worth of the human person is of the highest value protected by the Constitution under Article 21.

We have come across cases where multiple F.I.R.s have been registered against accused persons for offence of cheating (in agro plantation projects). We had dealt with them in the context of registration of F.I.R.s. The present petition has presented a reality. Do we quash the offending provisions or reinterpret them. In the teeth of the logic of the judgments noted above, without doing violence to the language of the statute which would amount to a virtual legislation, it may not be possible to interpret the sections contrary to the law laid down by the Sind, Bombay, Madras, Patna and Allahabad High Courts. Undoubtedly Section 31, Section 427 and Section 428 of the Cr.P.C., 1973 and Section 64, Section 69 and Section 71 of the Penal Code need to be relooked.

However, in the context of the facts of the present case, we have an alternative route to charter and we prefer to adopt the same.

Matters relating to civil detention would eminate out of two situations. Firstly where there is a decree or an order against a person in a civil proceedings and the substantive law governing said proceedings empower the executing court, tribunal or authority to commit to prison the person for not complying with the decree or order. Second situation would be where a person is convicted for having committed contempt of the Court. We in the present case are concerned with the former category of situation.

The Consumer Protection Act, 1986 (hereinafter referred to as the C.P. Act) was enacted pursuant to the resolution dated 9.04.1985 of the General Assembly of The United Nations Organisation being "Consumer Protection Resolution No. 39/248". India was a signatory to said resolution. The resolution was passed to protect the interest of the consumer in the wake of globalisation as it was noticed that the consumers face unbalances in economic terms, education level and bargaining power. Its aim was to promote just, equitable and sustainable economic growth without injuring social development by providing high level of ethical conduct for those engaged in the production and distribution of goods and services to consumers. Abusive business practices were intended to be curbed. The constitutional validity of the Consumer Protection Act, 1986 has been upheld by the Hon''ble Supreme Court in its judgment reported as State of Karnataka Vs. Vishwabarathi House Building Coop. Society and Others,

The C.P. Act has an hierarchy of authorities. At the lowest level is the Direct Consumer Forum, above it is the State Consumer Forum. The State and the National Forum exercise original as well as appellate jurisdiction. Section 13(3), (4) and (5) of the C.P. Act reads as under:-

Section 13(3) - No proceedings complying with the procedure laid down in sub-sections (1) and (2) shall be called in question in any Court on the ground that the principles of natural justice have not been complied with.

Section 13(4) - For the purposes of this section, the District Forum shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 while trying a suit in respect of the following matters, namely:-

(i) the summoning an enforcing the attendance of any defendant or witness and examining the witness on oath;

(ii) the discovery and production of any document or other material object producible as evidence;

(iii) the reception of evidence on affidavits;

(iv) the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;

(v) issuing of any commission for the examination of any witness; and

(vi) any other matter which may be prescribed.

Section 13(5) - Every proceeding before the District Forum shall be deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code, and the District Forum shall be deemed to be a Civil Court for the purposes of section 195, and Chapter XXVI of the Code of Criminal Procedure, 1973.

It flows from sub-sections (3), (4) and (5) of Section 13 that the District Forum shall have the same powers as are vested in the Civil Courts.

Section 18 of the C.P. Act reads as under:-

Procedure applicable to State Commissions � The procedure specified in sections 12, 13 and 14 and under the rules made thereunder for the disposal of complaints by the District Forum shall, be with such modifications as may be necessary applicable to the disposal of disputes by the State Commission.

By reason of Section 18, provisions of Sections 12, 13, and 14 of the Act apply mutatis mutandis to the State Commission. We then come to Section 25. It provides for the enforcement of the orders of the District, State and National Commission. Section 25 reads as follows:-

Enforcement of orders by the Forum, the State Commission or the National Commission. - Every order made by the District Forum, the State Commission or the National Commission may be enforced by the District Forum, the State Commission or the National Commission, as the case may be, in the same manner as if it were a decree or order made by a Court in a suit pending therein and it shall be lawful for the District Forum, the State Commission or the National Commission to send, in the event of its inability to execute it, such order to the Court within the local limits of whose jurisdiction.

(a) in the case of an order against a company, the registered office of the company is situated, or

(b) in the case of an order against any other person, the place where the person concerned voluntary resides or carries on business or personally works for gain, is situated,

and thereupon, the Court to which the order is so sent, shall execute the order as if it were a decree or order sent to it for execution.

Section 27 is the next relevant provision to be noted in our onward journey. It provides for penalties. It reads:-

Penalities - Where a trader or a person against whom a complaint is made fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be, such trader or person shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years, or with fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both:

Provided that the District Forum, the State Commission or the National Commission, as the case may be, may, if it is satisfied that the circumstances of any case so require, impose a sentence of imprisonment or fine, or both, for a term lesser than the minimum term and the amount lesser than the minimum amount, specified in this section.

A bare perusal of Section 25 of the Act shows that the legislature has created a legal fiction to the effect that orders made by the District Forum, State Commission or the National Commission will be deemed to be a decree or order made by a Civil Court in a suit. It was held by the Hon''ble Supreme Court in State of Karnataka''s case (supra) that the legal fiction so created has a specific purpose i.e., for the purpose of execution of the order passed by the Forum or Commission. It was held in Para 58 as under:-

Furthermore, Section 27 of the Act also confers an additional power upon the Forum and the Commission to execute its order. The said provision is akin to order 39 Rule 2A of the CPC or the provisions of the Contempt of Courts Act or Section 51 read with Order 21 Rule 37 of the Code of Civil Procedure. Section 25 should be read in conjunction with Section 27. A parliamentary statute indisputably can create a tribunal and might say that non compliance of its order would be punishable by way of imprisonment or fine, which can be in addition to any other mode of recovery.

If proceedings under the C.P. Act are civil and not criminal proceedings, question arises as to under what circumstances a personal should be committed to prison for not complying with the orders passed by the Forum or the Commission.

We have the illuminating judgment of Hon''ble Mr. Justice Krishna Iyer reported as Jolly George Varghese and Another Vs. The Bank of Cochin, was under threat of civil prison in execution proceedings for recovery of a money decree. Warrants for his arrest were issued. For non-payment of a money decree, petitioners was facing threat of imprisonment. The court took the aid of Article 11 of the International Covenant on Civil and Political Rights and Article 21 of the Constitution of India to humanize the law, being Section 51 and order 21 Rule 37 of the Civil Procedure Code.

It was held that ex-facie from the perspective of international law and Article 21 of the Constitution, in the enforcement of a contractual liability without determining whether the debtor had the mean to pay and yet was avoiding payments, it would be neither fair, nor just nor reasonable to commit the person to jail. It was held:

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 narayana, is no crime and to recover debts by the procedure of putting one is too flagrant violation 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 heat 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 new interpreted.

The Court read into the words "or has since the date of the decree, the means to pay the amount of the decree" in Section 51 CPC the requirement for the court to determine whether there was an element of bad faith beyond mere indifference to pay. Some deliberate or recusant disposition in the past or, alternately, current means to pay the decree or a substantial past thereof. Law was thus sauced with justice and harmonized with the Constitution.

We may note that as noticed in the judgment of Jolly George Varghese (supra), the Central Law Commission in its 54th report had noted:

The question to be considered is, whether this mode of execution should be retained on the statute book, particularly in view of the provisions in the International Covenant and Political Rights prohibiting imprisonment for a mere nonperformance of contract.

A little later in the report, the Law Commission observed:-

Imprisonment is not to be ordered because, like Shylock, the creditor says: I crave the law, the penalty and forfeit of my bond.

The law does recognize the principle that Mercy is reasonable in the time of affliction, as clouds of rain in the time of drought.

We have noted above the judgment of the Supreme Court in State of Maharashtra''s case (supra) upholding the virus of the C.P. Act, 1986. We have noted above that the judgment in Para 58 held that Section 27 of the Act is akin to Section 51 read with Order 21 Rule 37 C.P.C. We accordingly hold that indigence without intervening dishonesty or bad faith in liquidating the liability fastened by the District Forum or State/National Commission is no ground to incarcenate a person. Has an investigation been done by the District Consumer Forum regarding the current financial position of the petitioner. Does he have the means to pay and is still, with mala-fide intention refusing to comply with the directions? Nothing on record suggest this.

We are now left with two courses to follow. One, to remand the proceedings before the District Consumer Forum, Bunkar Vihar, Nand Nagri, Delhi to adjudicate after holding an enquiry whether the petitioner has a means to pay but is avoiding discharge of liability and if it is held that he has means to pay, pass a sentence, tempered in light of the observations made in Emperor Vs. Subrao Sesharao, The other is, to take note of the detention already undergone and pass an appropriate order. Admittedly, petitioner is in jail since 5.03.1999. He has already undergone detention for over four and half years. The substantive sentence was for two years, to run concurrently and there were 12 sentences of fine, in default to undergo further imprisonment, which, law does not permit to run concurrently. Thus, for non-payment of the fine, petitioner has already remained in detention for over two and half years, which sentence would be sufficient punishment.

Writ petition is allowed. Warrant of commitment on a sentence of imprisonment dated 5.3.1999 under which petitioner is in Tihar Jail is quashed. Petitioner shall be set at liberty if not required in some other case.

Copy of this order be sent to the Superintendent Central Jail, Tihar for compliance. Petition be intimated through jail authorities. Order be sent to the District Consumer Forum, Bunkar Vihar, Nand Nagri, Delhi.

Since a question may squarely arise in the near future regarding imprisonment for non-payment of fine in a number of convictions against same individual resulting in prolonged incarcenation, as in the present case of 16 years, copy of the judgment be sent to the Law Commission as well as to all the District Consumer Forums in Delhi. There shall be no order as to costs.