Rajasthan High Court - Jaipur
Kamal Kishore @ Chotiya vs State on 18 November, 2009
Author: K.S. Rathore
Bench: K.S. Rathore
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R S.B. CRIMINAL MISC. PETITION NO. 630/2009 KAMAL KISHORE @ CHOTIYA Vs. STATE OF RAJASTHAN Date: 18/11/2009. HON'BLE MR. JUSTICE K.S. RATHORE Ms. Sonia Shandilya, Advocate for the petitioner. Mr. Amit Punia, Public Prosecutor for the State.
**** The present criminal misc. petition under 482 Cr.P.C. is directed against the order dated 02.04.2009 passed by the District & Sessions Judge, Jaipur City, Jaipur in Criminal Misc. Application No. 828/2009 filed by the petitioner under Section 427 Cr.P.C., by which the Court below has dismissed the aforesaid application.
Brief facts of the case are that the petitioner vide judgment dated 19.04.2000 passed by the Special Judge, NDPS Cases, Jaipur in Sessions Case No. 20/1999, was convicted under Section 8/22 of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- and the said judgment of the trial Court was subsequently upheld in the appeal filed by the petitioner on 25.11.2004. Further, the SLP filed by the petitioner from the jail was also dismissed by the Hon'ble Supreme Court.
Similarly, vide judgment dated 14.05.2003 passed by the Additional Civil Judge (Jr. Division) & Judicial Magistrate, First Class No.17, Jaipur City, Jaipur in Criminal Case No. 479/2001, the petitioner was convicted under Section 3/25 of the Arms Act and sentenced to undergo simple imprisonment for one year with a fine of Rs. 1,000/-. Against the said judgment, appeal was also filed by the petitioner but the same came to be dismissed vide judgment dated 29.10.2004.
It is further submitted that in yet another criminal case i.e. Criminal Case No. 611/2001, the petitioner was convicted under Section 4/25 of the Arms Act by the Additional Civil Judge (Jr. Division) & Judicial Magistrate, First Class No.17, Jaipur City, Jaipur vide judgment dated 21.05.2003 and sentenced to undergo simple imprisonment for one year with a fine of Rs. 500/-. Against the said judgment the petitioner had preferred an appeal but the same was dismissed by the Appellate Court vide judgment dated 05.10.2004.
It is contended that the petitioner filed an application under Section 427 Cr.P.C. before the District & Sessions Judge, Jaipur City, Jaipur praying therein that the sentence awarded to the petitioner in the aforesaid criminal cases, be ordered to be run concurrently, but the said application has been rejected by the Court below vide order impugned dated 02.04.2009.
Therefore, this misc petition has been preferred by the petitioner on the ground that as per the provisions of Section 427 Cr.P.C., 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. These provisions have not been properly considered and examined by the Court below while rejecting the application of the petitioner.
It is submitted that in the case of Mukhtiar Singh Vs. State, reported in 1995 Cri.L.J. 2057, the High Court of Jammu & Kashmir held that where a convict, out of ignorance or because of default of his counsel or for any other reasons may omit to ask for running of the sentences concurrently in the subsequent trial, the High Court possess the inherent powers to pass appropriate directions to run the sentences concurrently and while doing so, it would not be altering any judgment or sentence in the process.
Learned counsel for the petitioner also placed reliance on the judgment of this Court passed in the case of Karamveer Vs. State of Rajasthan, reported 2006(3) WLC(Raj.) 386, wherein this Court while dealing with the provisions of Section 427 Cr.P.C., held that Conviction for two different offences committed in same transaction- Sentences under section 395 Penal Code and under sections 3, 25, 27 of Arms Act directed to run concurrently.
He further placed reliance on the judgment rendered by this Court in the case of Taslim Ahmed Vs. State of Rajasthan, reported in 2006(2) R.C.C. 1058, wherein the co-ordinate Bench of this Court has held as under:-
(1) Provisions of sub-section(1) of Section 427 CrPC are merely directory and not mandatory- Retributive theory of punishment no longer holds good, reformative theory is at fore front- The purpose is no longer to take revenge on the person but to reform the offender and to bring him back to main stream of society- Long periods of incarceration do not achieve any purpose except to add to frustration and pessimism to the life of the accused- Right of accused is as important as the right of the free citizen, therefore, punishment has to be humane and purposeful rather than being draconian and absolute- Keeping the accused incarcerated for 16 years for petty offence of theft would not do justice to him. (2) Relying on the cases referred, the sentences awarded in six cases are directed to run concurrently and not consecutively- In case, the petitioner has completed the sentence of punishment, he should be set at liberty forthwith.
I have heard learned counsel for the petitioner as well as learned Public Prosecutor and carefully gone through the order impugned dated 02.04.2009 passed by the Court below. I have also minutely gone through the provisions of Section 427 Cr.P.C.
A bare perusal of Section 427 Cr.P.C. reveals that 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.
Here in the instant case, a case for the offence under Section 8/18 of the NDPS Act was registered against the petitioner in the year 1999 and after trial the petitioner was convicted under Section 8/22 of the NDPS Act and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/-.
Further a case for the offence under section 3/25 of the Arms Act was registered against the petitioner on 24.07.1994, and subsequently also a case for the offence under Section 4/25 of the Arms Act was registered against him on 18.01.1997, meaning thereby that both the aforesaid cases under the Arms Act were registered against the petitioner prior to the case registered against him for the offence under Section 8/18 of the NDPS Act, which was registered in the year 1999.
I have also carefully and minutely gone through the judgments referred by the learned counsel for the petitioner in support of his submissions.
In the facts and circumstances of the present case, the ratio decided by the High Court of Jammu & Kashmir as well as by this Court in the judgments referred by the learned counsel for the petitioner, are not applicable to the facts and circumstances of this case. This Court do not find any illegality or error in the order impugned dated 02.04.2009 passed by the District & Sessions Judge, Jaipur City, Jaipur rejecting the application of the petitioner filed under Section 427 Cr.P.C. No interference whatsoever is required by this Court.
Consequently, the criminal misc. petition fails being devoid of merit and the same is hereby dismissed.
(K.S. RATHORE),J.
/KKC/ (Reserved