Rajasthan High Court - Jaipur
Hansraj Urf Pintu vs State Of Rajasthan Through Pp on 14 August, 2012
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Cr. Misc. Petition No.1151/2012 Hansraj alias Pintu Vs. The State of Rajasthan through the Public Prosecutor Date of Order ::: 14.08.2012 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Harendra Singh Sinsinwar, counsel for petitioner Shri G.S. Fauzdar, Public Prosecutor #### //Reportable// By the Court:-
This petition u/s.482 Cr.P.C. has been filed by accused-petitioner Hansraj alias Pintu, praying that the sentences awarded to petitioner in two criminal cases, reference of which is given below, be ordered to run concurrently. Petitioner has been convicted and sentenced in two different criminal cases in following manner:
Criminal Case No. Judgment Dated Offence Sentence to undergo Criminal Case No.374/2006 27.06.2008 Under Section 224/34 IPC and 3 of PDPP Act
2 Years simple imprisonment for each offence with fine of Rs.100/- in each, which has been affirmed by the appellate court Sessions Case No.109/2007 29.08.2008 Under Section 395 IPC 10 Years rigorous imprisonment with fine of Rs.10,000/-, which has been reduced by this court vide judgment dated 03.09.2009 in Criminal Appeal No.1178/2008, to a period of seven years RI Learned counsel for petitioner contended that sentences awarded to petitioner in all two cases, referred above, are not running concurrently, while petitioner is serving the same one by one, therefore, he has not been released in any case. Learned counsel for petitioner has submitted that petitioner has served out sentence of more than six years. Petitioner moved an application under Section 427 Cr.P.C. praying for an order to run both the sentences concurrently. Learned Additional District and Sessions Judge (Fast Track), Tijara, vide its order dated 06.05.2011 rejected that application holding that though two sentences could be ordered to run concurrently, but since the sentences have been awarded by different courts in two different criminal matters therefore it would not be just and proper to order for that. Petitioner has now been required to undergo full term of sentence consecutively in each of these cases, which in effect would mean that despite there being a common and overlapping period of confinement in all two cases, he would have to separately undergo the sentence of seven years.
Learned counsel citing provisions of Section 427 of the Code of Criminal Procedure argued that even if sentences have been awarded in different trials by separate judgments, they are nevertheless required to run concurrently because it is the same person who is convicted. Learned counsel in support of this argument has cited judgment of Supreme Court in State of Punjab vs. Madan Lal - (2009) 5 SCC 238, division bench judgment of this Court in Vimal Mehra vs. State & Ors.-2008 (3) WLC (Raj.) 624, and single bench judgments of this Court in Achalchand Sancheti vs. State of Raj.-2010 (3) WLC (Raj.) 304, Mahavir Sharma vs. State-2007 WLC (Raj.) UC 786, Hardeva & Ors. vs. State -2004 (1) WLC (Raj.) 295. and Mahavir Sharma Vs. State of Rajasthan 2007 (2) R.C.C. 500 and Shishram @ Shisho Vs. State of Rajasthan 2011 (2) Cr.L.R. (Raj.) 892.
Learned Public Prosecutor opposed the petition. He, however, could not justify why in the face of specific provisions of Section 427, sentences awarded to petitioner in different two trials by different judgments, should not be ordered to run concurrently.
A perusal of Section 427 of the Code of Criminal Procedure shows that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that subsequent sentence shall run concurrently with such previous sentence. There is however a proviso to Section 427 of Cr.P.C. to the effect 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 immediately.
A coordinate bench of this Court in Mahavir Sharma, supra, was called upon to decide similar question wherein accused was convicted for different spells in ten separate trials. Following ratio of various earlier judgments of this Court and division bench of Calcutta High Court in Janta Kumar Banerjee Vs. State of West Bengal - AIR 1955 Cal. 632, sentences awarded to accused in that case were ordered to run concurrently.
In Achalchand Sancheti, supra also it was observed that allowing sentences to run consecutively would be too harsh on the accused. Sentences as awarded to the accused in more than one case was therefore ordered to run concurrently.
In the case of Madan Lal, supra the Supreme Court was dealing with the case where all the transactions related to the family of the accused-respondent and matter pertained to different cheques issued by the respondent to complainant, for which purpose, separate complaints were filed. The accused was convicted in three different trials and sentenced to undergo sentence for different durations. High Court allowing the petition filed by the accused u/s.482 Cr.P.C. directed the sentenced awarded in those cases to run concurrently. State of Punjab filed appeal against the aforesaid judgment. Supreme Court in those facts rejected the appeal holding that the discretion exercised by High Court in directing sentences in all the three cases to run concurrently was just and proper.
There is another angle to the matter which needs to be noticed which is that sub-section (2) of Section 427 has provided that 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. This underlines the intention of the legislature that even the life convicts have been held entitled to benefit of subsequent sentence, be it life term or of any lesser term, being run concurrently. In the case of those, who have been awarded sentence of lesser duration than life, obviously a different yardstick cannot be applied unless there are compelling reasons to do so. For the convicts who have been awarded imprisonment of life, however, the benefit of set off under Section 428 has been held to be not admissible by judgment of Supreme Court in Kartar Singh vs. State of Haryana-AIR 1982 SC 1433. But in this case, the petitioner would also be entitled to avail the benefit of set off as far as period of his confinement during investigation or trial of each case in which he has been eventually convicted, against the term of imprisonment awarded to him in terms of Section 428 Cr.P.C. However, such benefit of setting off the period of confinement as against the sentence awarded to the petitioner in respective case should start running from the date, he was formally shown arrested in that particular case and counting from that date onwards when he completes maximum period of sentence, in each of the two cases, he would be entitled to release.
In the result, this petition is allowed and it is ordered that substantive sentences awarded to petitioner in Criminal Case No.374/2006 and Sessions Case No.109/2007, vide judgments dated 27.06.2008 and 29.08.2008 respectively, as mentioned above, shall run concurrently. However, the sentences imposed upon petitioner in case of default of payment of fine in all two cases shall remain intact and shall be undergone by him separately if the fines are not deposited.
(Mohammad Rafiq) J.
//Jaiman//92 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Giriraj Prasad Jaiman PS-cum-JW