High Court · 2012

Since the applicants are not represented, Shri P. Bora, learned advocate has been appointed as amicus curiae, who has rendered his valuable service to t he cause of dispensation of justice. We have also heard Ms. B. Goyal, learned Pu blic Prosecutor, Assam. Mr. Bora, learned amicus curiae referring to the provisions of Section 4 8. 27 Cr.P.C., has submitted that though when a person already undergoing a sentenc e of imprisonment is sentenced on a subsequent conviction to undergo imprisonmen t for any term, such imprisonment generally commence at the expiration of the im prisonment to which he has been previously sentenced, as the power has been conf erred on the Court to direct concurrent running of the subsequent sentence with the previous sentence, the Court sentencing such person, who is already undergoi ng the imprisonment, on subsequent conviction to imprisonment is required to con sider and pass necessary order as to whether the order under Section 427 Cr.P.C. for running the subsequent sentence concurrently with the previous sentence sho uld be passed or not. In the instant case, according to the learned amicus curia e, such consideration has not been made by the learned Sessions Judge as well as by the High Court in the criminal appeals, for which the applicants have filed the application for passing necessary order by invoking the jurisdiction under S ection 427 Cr.P.C. The learned amicus curiae referring to the facts involved in the aforesaid sessions cases, has submitted that since both the offences relate to same family, having regard to the object for which Section 427 Cr.P.C. has be en enacted, direction may be issued for running the subsequent sentence in Sessi ons Case No.21/2000 concurrently with the previous sentence in Sessions Case No. 20/2000. The learned amicus curiae referring to the Apex Court judgment in State of Punjab Vs. Madan Lal reported in (2009)5 SCC 238 has also submitted that suc h power can be invoked by the High Court in exercise of the power under Section 482 read with Section 427 Cr.P.C.

9. The learned Public Prosecutor, on the other hand, has submitted that as there were two distinct and different incidents, which constitute two offences u nder the Indian Penal Code, the power under Section 427 Cr.P.C. cannot be invoke d by the Court to direct concurrent running of the sentence. It has also been su bmitted that while convicting the applicants in Sessions Case No.21/2000, the le arned Sessions Judge had in mind their conviction in Sessions Case No.20/2000, w hich is evident from the judgment of conviction recorded by the learned Sessions Judge in Sessions Case No.21/2000. It has also been submitted that the learned Sessions Judge has in his judgment passed in Sessions Case No.21/2000 given the reason why the applicants should be dealt with sternly and should not given the benefit of Section 360 Cr.P.C. or any other enactment in this regard and hence a ccording to the learned Public Prosecutor the learned Sessions Judge has given t he reason for not invoking the power to direct concurrent running of the subsequ ent sentence in Sessions Case No.21/2000 with the previous sentence in Sessions Case No.20/2000, though the High Court while deciding the aforesaid criminal app eals did not mention anything relating to exercise of the jurisdiction under Sec tion 427 Cr.P.C. The learned Public Prosecutor in support of her contention has placed reliance in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad & anr. reported in (1998)4 SCC 183 . Ms. Goyal, learned Public Prosecutor placing reliance on another decision of t he Apex Court in M.R. Kudva Vs. State of A.P. reported in (2007)2 SCC 772, has a lso submitted that since the learned Sessions Judge, for the reasons recorded, d id not invoke the provisions of Section 427 Cr.P.C. and the said jurisdiction ha s also not been invoked by the High Court in the appeals, the present applicatio n filed by the applicants for invoking the said power is not maintainable.

10. We have considered the submissions of the learned amicus curiae as well as the learned Public Prosecutor. We have also perused the records of Criminal A ppeal Nos.178/2003 and 371/2003, apart from the judgments and orders of convicti on dated 06.03.2003 and 09.09.2003 passed by the learned Sessions Judge, Hailaka ndi in Sessions Case Nos.20/2000 and 21/2000, respectively.

11. As discussed above, the applicants were convicted under Section 436 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for 10 year s and to pay a fine of Rs.5,000/- each, in default, to suffer further period of imprisonment for 6 months, in Sessions Case No.20/2000, as they were found guilt y for commission of said offences on the night of 12.12.1997 between the 12 midn ight and 1.00 A.M., for setting the house of the informant on fire, thereby caus ing complete damage to the house including household goods and live-stocks kept therein. In Sessions Case No.21/2000 they were initially convicted under Section 148/149/323/325/302 IPC, which was, however, subsequently converted to 148/149/ 323/325/304 Part-II IPC by the High Court in the appeals, for the offence commit ted on 10.05.1994 i.e. about 3‰ years before the date of commission of the offen ce in earlier Sessions case. In the subsequent case, the applicants were convict ed for unlawful assembly, trespass armed with deadly weapons, inflicting injurie s on the persons, which results in the death of Mainul Haque. Though the informa nt party, in both the cases is same, both the offences, however, were committed by the applicants and others on two different dates i.e. one on the night of 12. 12.1997 and the other on 10.05.1994. The conviction of the applicants is not bas ed on the single incident either under different enactment or for different offe nces in the same transaction but on two distinct and different facts constitutin g two different sets of offences on two different dates.

12. Section 427 Cr.P.C. provides the principle of sentencing an offender, wh o is undergoing a sentence of imprisonment. For better appreciation, Section 427 Cr.P.C. is reproduced below in its entirety:- Sentence on offender already sentenced for another offence.-(1) When a p (cid:28)427. erson already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or impri sonment for life shall commence at the expiration of the imprisonment to which h e has been previously sentenced, unless the Court directs that the subsequent se ntence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by a n order under section 122 in default of furnishing security is, whilst undergoin g such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing of imprisonment for life is sentenc ed on a subsequent conviction to imprisonment for a term or imprisonment for lif e, the subsequent sentence shall run concurrently with such previous sentence. (cid:29)

13. While sub-section (2) of Section 427 Cr.P.C. provides that when a person already undergoing imprisonment for life, is sentenced on a subsequent convicti on to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence, sub-section (1) of Section 4 27, however, provides that the subsequent sentence of a person undergoing a sent ence of imprisonment, unless of course the previous sentence of imprisonment is not the imprisonment for life, shall run consecutively, i.e. the subsequent sent ence shall commence at the expiration of the imprisonment to which such person h as been previously sentenced, unless the Court directs that the subsequent sente nce shall run concurrently with the previous sentence. Hence if a person is alre ady undergoing a sentence of imprisonment for life, his subsequent conviction to imprisonment, which may be for any term or for imprisonment for life, shall hav e to run concurrently with the previous sentence for which the Court’s order is not necessary. On the reverse situation i.e. if a person is undergoing a sentenc e of imprisonment, but not the imprisonment for life, and he has been subsequent ly convicted to imprisonment for any term or imprisonment for life, to run the s ubsequent sentence concurrently with the previous sentence, there must be an ord er of the Court to that effect.

14. The Apex Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra ) has opined that since Section 427 Cr.P.C. relates to administration of crimina l justice and provides procedure for sentencing, the sentencing Court is require d to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run i.e. whether it should be concurrent or consecutive. It has also been opined that the basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences and if a given trans action constitutes two offences under two enactments generally, it is wrong to h ave consecutive sentences and in that case it is proper and legitimate to have c oncurrent sentences. The Apex Court, however, has opined that the single transac tion rule will have no application if the transaction relating to the offences i s not the same or the facts constituting the two offences are quite different.

15. In M.R. Kudva (supra) the Apex Court has opined that when the trial cour t taking note of the previous conviction of the person has refused to pass an or der for concurrent running of two sentences under Section 427 Cr.P.C., which was also not prayed for before the High Court as well as before the Apex Court, sub sequent petition under Section 482 read with Section 427 Cr.P.C. is not maintain able. The Apex Court while rejecting such prayer, has also reiterated its earlie r decision in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra), when the order for concurrent running of the sentence is to be made under Section 427 Cr. P.C. In the instant case, as discussed above, the conviction of the applicant 16. s in Sessions Case Nos.20/2000 and 21/2000 are based on two completely different facts and transactions, one conviction for the offence committed on the night o f 12.12.1997 and the other on 10.05.1994, though the informant party was the sam e. The learned Sessions Judge, while passing the judgment of conviction in Sessi ons Case No.21/2000 had also the notice their conviction in Sessions Case No.20/ 2000, which is evident from the judgment passed in Sessions Case No.21/2000. The learned Sessions Judge has also given the reason why the stern action is requir ed to be taken against the applicants and other convicts, in his judgment passed in Sessions Case No.21/2000. The learned Sessions Judge though in so many words did not say that the order under Section 427 Cr.P.C. for concurrent running of the sentence cannot be passed, having in mind the facts involved in both the cas es, from the observation made in the judgment passed in Sessions Case No.21/2000 , as discussed, it is evident that the learned Sessions Judge, who had the notic e of previous conviction of the applicants, virtually refused to pass an order u nder Section 427 Cr.P.C. The applicants also though filed two criminal appeals b eing Crl.A. Nos.178/2003 and 371/2003 in High Court, had never prayed for an ord er under Section 427 Cr.P.C. Having regard to the conviction of the applicants on two distinct and di 17. fferent sets of facts constituting two distinct and different offences committed on two different dates and also the fact that the learned Sessions Judge despit e having notice of the applicants’ conviction in Sessions Case No.20/2000 did no t pass an order under Section 427 Cr.P.C., we are of the opinion that the applic ants are not entitled to an order under Section 427 Cr.P.C.

18. Hence the application of the applicants is dismissed.

19. Before parting we place on record our appreciation to the assistance ren dered by Mr. P. Bora, learned amicus curiae, as well as by Ms. B. Goyal, learned Public Prosecutor. The learned amicus curiae shall be paid Rs.5,000/- towards h is fee for rendering his valuable service in assisting the Court.