High Court · 2007

HIGH COURT OF CHHATTISGARH, SILASPUR Cr.M.P. N0.192/2007 PETITIONER RESPONDENT PETITIONER RESPONDENT Saiiieet Pal, Sou of Vii'endra Kuinar Pal, aged about 38 years, Resident., of Village Sankra Bangala, Police Station Balod District Durg (C.G.) 7crsus State of Chhattisgarh, Tbroiigh; Incharge, Police Station Of&cer District Dhamtari Dham.tafi, (C.G.) \- Cr.M.P. N0.193/2007 Sanieet i, Pal, Son of Vii'endra Kuiri.ar Pal, aged about 38 years, of ViUage Saiikra Resideut Bangala, PoUce Station Balod Distl-ictDurgfC.G.) Vcrsus State of Chhartisgarh, Through: Incbarge, Police Station Officer Dhamtari, Distnct Dhamtari (C.G.) PETITIONS UNDER SECTION 482 Cr.P.C. Appearauce: Shri Uttam Paudey, Counsel for tiie petitioner in bofh tlie petitions. Sliri M.P.S. Bhatia, Paael Lawyer for fhe State tn botli tlie petitions. OR&L ORDER 119.07.2007i SUNILJ<UMAR SINHA^J. Heard finally with the cousent ofboth the parties. Conuaon order passed as follows ; "A raised for consideration is as to whefb.er tlie sentences question . awarded to tlie sole accused ui two diBereiit Cr.M.P. No.192/2007 and Cr.M.P. No.193/2007 Ci-un.inal Cases on tlie same dav shaU be seived concun'eutly consecutively, where fliere dii'ection iii tlie judgiaents iii tliis i-egai'd and tlw judgiiients are silent on Uiis poiat". Petitioner - Sanjeet Pal vvas accused in 2 ditierent ci-une nuiubers registered as Ci±tae No. 152/1993 aad 155/1993 aud ta~o ditTereiit charge sheets wei-e tiled agam.st him. Crttaiaal Case No.948/1999 relates to Cnme No. 152/1993, whereas, CiTUimal Case. No.949/1999 rclates to Crime No. 155/1993. In both. tliese Ciiminal Cases, the petitioner was convicted under Section 420 aild 468 ofIPC aiid senteiiced to uadereo R.I. for 2- 2 years on each count aiid to pay a fuie ol' Rs.500-500/-, iii default of payment of &a.e luidergo additioaal im.pi'isonment for 2-2 niontlis witli a furtb.er direction to n-in the to furfher sente.nc.es concuiTeiitly. These judgnients were passed toy tlie Judicial Magisti-ate Fii'st Class, Dfasumtaii on 22/8/2000 in both tlie cases, after conductiiig two difierent ciim.aial tiials. Agauiyt each of tlie judgxnents i.e. judgiaent passed in as well as Cmninal C,ase Criniuial Case No.948/1999 ^ No.949/1999, fb.e petitioner pi-eterred 2 difiei-ent Crimiaal Appeals. The appeat peitaitiuig to Cnaiinal Case No. 948/99 is Criminal Appe.al No.26/2000 aiid appeal pertamiiig to other Criauiial Case No.949/1999 is Crunmal AppealNo. 27/2000. These two appeals were also heai'd sepai'ately and fhey were decided by hvo separate judgmeats passed by Uie Additioiial Sessions Judge, Dhamtari on 27/1/2005. The conceiTied Additional Sessions Judge disiaissed bofh tlie appeals and coiifinmed the judgment of conviction aiid order of senteiice passed by tiie tiial Court. That is to say fhat fhe judgment aad order passed by tiie trial Court remamed as it is aiid no chaiige ia it was iriacte by tfae Appettate C.ourt. It appears tliat in consequence ot' tiie atbresaid judgineiits, passed iti o Criminal Cases aiid mei-eat'ter iii two ditTerent for serviag fbe flie-.petitioner was seiit Cruamal Appeals, seiitences. After compleuon of the senteaces of 2-2 years, which Cr.M.P. No.192/2007 and Cr.M.P. No.193/2007 were to run conciirrently for a partici.dar case, when the petitioner was not released finaUy, he has lUed fhese petitions before the High Court for necessary direction and to pass aa ttie facts and iclease liolding fhat. oi-der for his final circuiiistances of his hvo cmituial trials, the sentences had to iTLa concuiTenUy iu bofh ttie cases aiid by flie end of 2 years, he should have finally been released iti bofh fhe cases, whereas, tlie iaa» Jail Authorities are not i-eleasiug him holding tliat tiie senteiices conIiiTued iii tlie two Crixauial Appeals arc to be served consecutively, tlierefoi^, he hds to be retauied for another block of 2 years after providiiig set. off as weU as concun-ent i-unniag facility, as has been awarded sepai-ately in the t\vo judgraents. Leanued counsel for the petitioner submits that since tlie sentences were awarded on tiie same day aad tlie appeals were also decided on flie same day, therefore, Tlie sentences in botti the Cruuiual Cases ai-e required to be sen'ed concurrently aiid the petitioner was required to be released in botb the cases on 26.1.2007, which is Qie date of coinpletion of his 2 years of sentence. He refers to fhe decision ofthe Apex Court rendered in tlie matter of JHbhd. Akhtw Bussaln (% Sircihim Ahined BhecKti vs. Assistant Collector of Customs (Prevention) Ahmcdabad & others 1988 f31Cnmes PageJ291. On fhe other haiid, leanied counsel for the State subnuts that since fherc 1s no du-ectiou ia ttie tw-o sepa-fate judginents, passed by the tiial Court, as well as the Appellate Court, sentences are to n.ui consecutively and the State is not at fault, when it has not l-eleased fhe petitioner at fhe end of coiupletion of Uie sentences awarded iu one case I have heard leamed couasel for the parties at leugfti and have also perused the paper books of both the Crim.uial Misc. Petitions. So fai~ as factual aspect of inatter is concenied, it has not beea'-disputed by bofli the counsel, therefore, it is an admitt.ed position Uiat tlie jietitioner was an'ested i& two diQerent. Criine two difierent:^ Ciiminal Cases were registered nunibers ajild -against -bini in tlie PoUce Station vide tivo different Criiue ' J' Cr.M.P. No.192/2007 and Cr.M.P. No.193/2007 Nuinbers i.e. Crune No. 152/93 aiid Criiae No. 155/93, forwliich, two diffei'eut charge-sheets werc filed before tlie Magistrate, on which, two dtfferent Criiaiiial Cases vide No.948/1999 aiid 949/1999 were prosecuted and two diffei-ent judgiaents were deUvered in fhese cases. Then, agaiast fhese two judgiaents, two separate appeals were IHed aiid tliey were also disiaissed by two dift'ei'ent judgruents rendered by fhe AppeUate Coiirt. Section 427 Cr.P.C. provides for sentence on offend.er ali'eady sentenced for anotlier offence. Sub-section (1) provides fhat when a person Edready undergotag a sentence of is senteaced *on a. subsequent conviction to imprisoninent imprisonment or imprisoiunen,t for Ufe, such iiaprisomnent or iiilprisonraent unprisoruuent for lit'e shali coAuieiice at the. expiration of the to which he has been previously senteiiced, unless the Court direct tliat the subsequent sentence shall run concun'enti.y wifh such previous sentence. A proviso is also there wluch shows tliat where a person who has been sentenced to unprisorLment by an order under Sectioa 122 iii default of fiimishing secuxity is, whilst undergoiag such sentence, senteaced to iiaprisoruiient for aii offence couimitted prior to fhe the latter sentence shail conunence niakiag of such order, iiuinediately. Sub-section (2) provides fliat when a persou for Ufe is ah-eady i.indergoiiig a sentence of iaiprisoninent sentenced on a subsequent conviction to iinprisoninent for a term or imprisoiiBient for life, tlie subsequent sentence shall run concuiTently wifh such previous sentence. to adininistration of cnm.iaa! The provisions of fhis Section have been talcen note of by the Apex Court in fbe matter of Mobd. Akhtai' Hussain (Supra), ili wbich, fhe Apex Coiul, vide para 5^ held tliat this Secuoii justice aud provides relates thei~efore, procedvire for sentenciiig. The sentenciag Court is, reqiiired to cpnsider aad niake an appropriate order as to how tlie sentence passed ia fhe subseqneat case is to nui. Whetih.er it should be concurrent or consecutive? The Apex Coiu-t further said.that the basic n.ile of thuinb over ttie veai's lias beeu Qie so If a , caUed smgle transaction rule for concurrenf sentences. Cr.M.P. No.192/2007 and Cr.M.P. No.193/2007 giveu transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no appUcation if the transaction rclatuig to offence is not fhe same or the facts constituting the two ofiences are qilite different. The judginent rendered by fhe Apex Court tn Mohd. Akhtar Hussaia's case is in coruiection wifh two different crimes, which were registered agaiast fhe same person, out of which, in fhe former, he was alt-eady convicted for 7 years and was uadei^oiiig tbe sentence of uuprisonnient aad ia the later, fhe conviction was awarded teonie lesser after takiug note of the former sentence, which was chaUeaged by the State as weB as fhe accused before fhe High Court. accused appealed against fhe sentence on the ground tliat tlie sentence should have been m.ade concuiTent aad fhe State In the High Court, contended Uiat the Baaximuai sentence should have been awarded to fhe accused. The High Court accepted fhe State appeal axid enhaticed flie sentence frora 4 to 7 years aacl m.ade It was this order, which was challenged before it consecutive. in which, fhe aforesaid judgment was fhe Supreine Court, passed aad the Suprenie C-oui-t wliile going on the raerits of the sentence awarded, set aside tlie jiidgxneut of fhe High Coiirt aad restored fhe judgsaent of fhe tdal Court. The ratio of fhe judginent rendered by fhe Apex Coiirt in fhe said inatter is not helpful to the petitioner in ftiis case. The i-atio is not on Uie poiat fhat if the two sentences are awarded separately iu bvo cases and fhere is no direction about tlieir servuig upon fh.e accused, they shaU esseutially be served B Further, concurrently. distuiguishable on the pomt fhat iu fhe judgnient of the Apex Court, fhere was a direction by fhe trial Court as to how ttie sentence would run, but ia case of fhe petitioner, there is no such direction aiid fhe judginent is silent on this poiut. petitioner The key words used m Section 427 Cr.P.C. ai'e fhat "Unless the Court db-ects that fhe subsequent sentence shall j •-^ Cr.M.P. No.192/2007 and Cr.M.P. No.193/2007 i-un concuiTently with such previous sentence", that means by necessanr iinplication, if two sentences ai-e awai-ded to EUI accused ia two different Crmiiual Cases aild fhere is no direction iii fhe judginents fhat how fhe sentences awarded shaU be suSered, fhat m.eaiis whether it shall be sufFered concurrenfly or consecutively, tlien, by necessan' unplication, it shail be ineaat sentences run consecutivelv aad not concuiTently. At fhis stage, Shri Pandey raises a poiat that fhis is a iil Sectiori. 427 Cr.P.C. pertataiag to a provision niade subsequent coaviction, AS is ettivisaged ui flie eai-Uer part of the Section, but when the.'conviction is simultaaeous, provisions pet-tauuilg to du'ection of the Couit contaiaed ui the later pai~t of tlie Section would not prevail. The argiunents advanced by leai-aed counsel petitioner appeai~s to be niisconceived. The words used by the legislature clearly inean thereby tfaat m. aiiy case, unless •theie is a du~ection of fhe Court, a sentence is to i-un separately froni another sentence, which has been awai~ded to Uie same accused in a different case. There inay be a situation that an accused is ah-eady undergouig a sentence aad fhere ruay also be a sitaation in which the sentences are beiag awarded on tlie sam.e siiaultaneously in t\vo dtfferent crmies, but iffhe court itselfhas not taken notice of fhis tact by not providing for a direction •to iiin fhe sentences of tavo different cases concurrently, sentences are to run s.epa-t-ately aiid tiie factor that convictions were awarded saniiltaiieously on fhe same day would not come in fhe way of appUcation of provisions contained iii fhe later part of sub-section (1) of Sectioa 427 of It is more so because in all cases even where the Cr.P.C. decisions ai-e, ruade simultaueously, ui absence of anv statutoiy provisions ili fhis regai'd, af'ter tlie one aU shall always' be subse.quent'to it for flie pui-pose of fhis Section. At fhis stage, we sEoiild also take note of Section 429 (l) Cr.P.C., which desils wiTli saviiig clause sayiiig that nofhitig in Section 426 or 427 shall be held to excuse asy person fi-oia aiiy part of tlie II- 'o^ Cr.M.P. No.192/2007 and Cr.M.P. No.193/2007 pUnishiuent for which he is Uable upon his fonncr or subsequent eonviction. In light of fhe above discussions aad fuifher ia light of the observations inade ia Mohd. Akhtar Hussain's case, I do not fhid aiiy inerit in tliese two petitions and in view of ttie two separate judgments passed agaiiist tlie petitioner, the directions desired can not be issued ia favour of the petitioner ia light of tlie - The qiiestion raised is provisions of Section 427 Cr.'P.C. answered fhat ia such situatioili tlie sentences shall be seived consecutivelv. The petitions ai-e niiscouceived aad tlie same are accordingly disiaissed. 5hyn< Sd/- Sunil Kumar Sinha Judge