Supreme Court - Daily Orders
Shashi Shekar @ Neeraj @ Raju vs National Capital Territory Of Delhi on 5 February, 2015
Bench: Sudhansu Jyoti Mukhopadhaya, Rohinton Fali Nariman
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.676 OF 2009
SHASHI SHEKAR @ NEERAJ @ RAJU ...APPELLANT
Vs.
NATIONAL CAPITAL TERRITORY OF DELHI ...RESPONDENT
O R D E R
This appeal has been preferred by the appellant through Supreme Court Legal Aid Committee against the judgment dated 14th May, 2007 passed by the High Court of Delhi at New Delhi in Criminal Appeal No. 473 of 2004. By the impugned judgment, the High Court affirmed the Judgment of Conviction and the sentence passed by the Trial Court holding appellant guilty for the offence of robbery and murder.
In view of the stand taken by the appellant in Crl.M.P. No. 28672, Mr. Renjith B. Marar, learned counsel appeared on behalf of the appellant and assisted the Court as Amicus Curiae.
It appears that the appellant was convicted for the offence under Section 302 in some other cases also apart from the case in hand. In the present case, the Trial Court by its Judgment dated 23/28th April, 2014 in Sessions Case No. 385/1996 convicted the appellant for the offences under Sections 302 and 397 of the Indian Penal Code (hereinafter referred to as `IPC') and passed the following sentence:
Signature Not Verified“5. Keeping in view the above discussion the Digitally signed by Rajni Mukhi Date: 2015.02.23 convict is sentenced as under:
14:31:56 IST Reason:
(i) Convict is sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- under 1 Section 302 IPC, in default of payment of fine, convict shall further undergo RI for a period of two months.
(ii) Convict is sentenced to undergo RI for a period of ten year and a fine of Rs.1,000/- under Section 397 IPC. In default of payment of fine, convict shall undergo RI for a period of two months.
Sentences under Section 302 IPC and 397 IPC in this case shall run concurrently. No separate sentence is being awarded under Section 392 IPC as ingredients under Section 392 IPC are also the ingredients of section 397 IPC.
It is made clear that this sentence shall not be concurrent with the sentence I case FIR No.509/95 P.S. Vasant Kunj as awarding of concurrent sentences in both the case will amount to taking a very very lenient view against the convict which I do not think it expedient.” In Criminal Miscellaneous Petition No.28762 the appellant has intimated that the previous learned counsel has been designated as a Senior Counsel and hence prayer has been made for early hearing of the case through an Advocate on Record appointed by the appellant. It is further submitted as follows:
“4. It is pertinent to mention here that the Petitioner is a life convict having been convicted in three different FIRs and has till date completed more than 17 years 7 months of his actual (in total 21 years of his sentence including remission).
5. This application is necessitated in view of the compelling circumstances where the Petitioner at present is eligible for consideration of his name of premature release by the Sentence Reviewing Board but due to pendency of the instant appeal before this Hon'ble Court, he may not be considered or released by the Sentence Reviewing Board. Even otherwise, another SLP (Crl.) No. Crl.M.P.No. 8124 of 2008 filed by the appellant aginst an order of Hon'ble High Court challenging conviction in FIR No.509/95 has been dismissed by this Hon'ble Court on 13.5.2008.2
6. It is stated a Writ Petition being W.P. (Crl.) No. 1665 of 2013 is also pending before the Hon'ble Delhi igh Court seeking premature release of the petitioner and the Hon'ble High Court has been pleased to issue notice in the said Writ Petition.
7. It is stated that there is no other male member in the family of the petitioner which consists of his oold aged mother, wife and three daughters. Two daughters of the Applicant are marriageable. Apart from this, a gall bladder surgery of mother of the applicant is due and is slated for 31.12.2013 and a spinal cord surgery of daughter of the applicant is also due which is slated for December, 2013.
8. Furthermore, the Petitioner himself is a HIV patient.
9. Furthermore, curiously, the learned Trial Court while convicting the Petitioner in two FIRs namely 76/1996 and 509/95 had not granted benefit of Section 428 of the Cr.P.C. and had directed both the sentences would run consequently. This direction is completed contrary to Section 427 (2) of Cr.P.C. This important issue wasn ot raised either before the Hon'ble High Court in the appeal preferred on behalf of the Applicant or before this Hon'ble Court in the instant Appeal. The applicant seeks permission of this Hon'ble Court to raise this important legal issue and also grant of benefit of Section 428 Cr.P.C.
10. It may kindly be noted that during the entire period of incarceration, the Petitioner successfully completed computer course and para legal training. Apart from this petitioner was interested with the duties of Ward Munshi and Ward Numberdar who are responsible for maintaining peace in the jail ward and regular checking on the jail inmates/under-trials.
Therefore, the petitioner can successfully with minimal attempt join the mainstream of the society. The documents showing that the Petitioner, during incarceration, has completed various courses such as paralegal training, computer courses and that petitioner has rendered services like Ward Munshi, Numberdar etc.
11. It is submitted that the petitioner is a married having three female children in their 3 adolescence, out of which two are of marriageable age. The wife of the petitioner is working lady with further responsibility of looking after the children. It is pertinent to mention that while on parole, on two occasions petitioner has looked for suitable match for his daughter but during the interregnum due to expiry of parole period the petitioner had to surrender, the said attempts failed.
12. In a nutshell, looking at the present situation, the Petitioner most humbly and respectfully submits thus:-
a. The pendency of the instant Appeal may hamper/affect the premature release of the applicant, which is otherwise fruitless for the Petitioner -having undergone more than 21 years of his sentence-the Applicant does not wish to argue the appeal on merits and seeks withdrawal of the same.
b. The medical condition of applicant and his family requires his presence with the family for support at this crucial time.
13. In these circumstance, the petitioner most humbly submits that this Hon'ble Court be pleased to allow the Applicant to withdraw the instant appeal and grant benefit of Section 428 of Cr.P.C.
14. This application is made bonafide and in the interest of justice.
PRAYER It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:
a. Pass a direction thereby granting benefit/relief of Section 428 of the Cr.P.C. and b. pass such other or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.” The learned Amicus Curiae appearing on behalf of the appellant, submitted that the appellant is entitled for setting off the period of sentence already undergone prior 4 to the sentence passed by the Court under Section 428 of Cr.P.C. Apart from this, in view of sub-section 2 of Section 427 of Cr.P.C., as the appellant had been undergoing sentence of imprisonment for life, in connection with another case and subsequently another conviction of life imprisonment has been awarded, hence it should run concurrently with such previous sentence.
It is contended that the learned Trial Court wrongly observed that the sentence shall not be concurrent with the sentence I case FIR No. 509/1995 P.S. Vasant Kunj pursuant to which the appellant had been convicted for life imprisonment.
The learned counsel appearing on behalf of State referred to the decisions of this Court in State of Rajasthan Vs. Jamil Khan, (2013) 10 SCC 721 and Sanaullah Khan Vs. State of Bihar, (2013) 3 SCC 52 and submitted that they should be allowed to run consequently, otherwise, the State Government may remit the sentence as noticed by this Court. However, such submission cannot be accepted as it is for the State to decide whether to grant remission in an appropriate case or not.
Section 427 of Crl.P.C. reads as follows:
“Section 427.
1. When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence 5 immediately.
2. When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.” From sub-section 1 of Section 427 of the Crl.P.C., it is clear that if a person already undergoing sentence of imprisonment as different from a life imprisonment i.e. for a fixed period of subsequent conviction to imprisonment for life, the subsequent sentence shall commensurate at the expiry of the imprisonment which had been previously sentenced i.e. fixed period sentence.
It is only the Court which is empowered to direct that the subsequent sentence shall run concurrently with such previous sentence.
In the present case, as the appellant was convicted for the offence under Section 302 and was sentenced to imprisonment for life in a previous case as well, and hence he is already undergoing the sentence of imprisonment for life, the subsequent conviction of the imprisonment for a term i.e. fixed period or imprisonment for life should run concurrently with such previous sentence.
We are of the view that the Trial Court was not correct in directing that the sentence imposed pursuant to Sessions Case No.385/96 shall not be concurrent with the sentence I case FIR No. 509/95. The High Court also failed to notice the fact and affirmed the above portion of judgment.
For the reason aforesaid, we set aside the following part of the observation made by the Trial Court of the sentence as affirmed by the High Court:
“It is made clear that this sentence shall not 6 be concurrent with the sentence I case FIR No.509/95 P.S.Vasant Kunj as awarding of concurrent sentences in both the case will amount to taking a very very lenient view against the convict which I do not think it expedient.” The order of conviction and sentence passed by the Trial Court as affirmed by the High Court is upheld but last part of the observation is set aside.
The judgment and order passed by both the Courts stand modified to the extent above.
The appeal stands disposed of.
We appreciate the assistance given by the Amicus Curiae and direct the Registry to pay the cost as permissible under the Rules, to the Amicus Curiae.
...........................J. [SUDHANSU JYOTI MUKHOPADHAYA] ...........................J. [ROHINTON FALI NARIMAN] NEW DELHI;
FEBRUARY 05, 2015
7
ITEM NO.103 COURT NO.4 SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 676/2009
SHASHI SHEKAR @ NEERAJ @ RAJU Appellant(s)
VERSUS
NATIONAL CAPITAL TERRITORY OF DELHI Respondent(s)
(With appln. for exemption from filing clear copies of documents and directions and office report) Date : 05/02/2015 This appeal was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN For Appellant(s) Mr. R. C. Kohli,Adv.
Mr. Renjith B. Marar, Adv.(A.C.) For Respondent(s) Mr. P.K.Dey, Adv.
Ms.Kiran Bhardwaj, Adv.
Mr. D. S. Mahra,Adv.
UPON hearing the counsel the Court made the following O R D E R The appeal stands disposed of in terms of the Signed Order.
(Rajni Mukhi) (Suman Jain)
Sr. P.A. Court Master
(Signed Order is placed on the file) 8