Orissa High Court
Dharmananda Behera vs State Of Orissa on 29 April, 1994
Equivalent citations: 1994(II)OLR114
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. The petitioner prays for a direction to grant him benefit of detention in custody in a case which ended in acquittal, in another case for which he is presently in custody
2. The case presents some interesting features. Filtering out unnecessary details, fact situation which is undisputed is as follows :
The petitioner is in custody having been convicted to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, with default stipulation of six months rigorous imprisonment, in S. T. No. 110 of 1979 arising out of G.R. Case No.B61 of 1978. The original judgment passed by the Asst. Sessions Judge, Cuttack was confirmed in appeal by the learned Sessions Judge, Cuttack in Criminal Appeal No. 31 of 1981. This Court did not interfere in Criminal Revision No. 547 of 1981. Apex Court affirmed the conviction and sentence in Criminal Appeal No. 377 of 1986. In the above case, he was in custody as an under-trial prisoner from 22-7-1979 to 22-11-1979. After his special leave petition was dismissed by Apex Court, he is in custody since 13 3-1991. In between he was in custody in some other cases, details of which are as follows :
(1) GR Case No. 892 of 1980-From 1-10-1989 to 3-2-1990. (2) GR Case No. 133 of 1938-From 1-10-1989 to 3-2-1990. (3) ST No. 138 of 1990-From 1-6-1937 to 18-4-1988. (4) GR Case Nos. 422 of 1980 : From 29-8 1380 to and 216 of 1980 : 16-1-1932 (5) GR Case No. 124 of 1980 ; From 19-3-1990 to 21-9-lSSiO.
It is submitted that petitioner was also in detention under National Security Act (in short, the 'Act') and was in custody from (a) 10-6-1987 to 18-4-1988, (b) from 4-5-1989 to 20-6-1989 and (c) from 28-2-1990 to 22-9-1990, It is stated that period during which the petitioner was in custody in connection with GR Case No. 8 2 of 1980 should be taken into consideration, and a direction should be given that the said period should be set off against sentence awarded in ST No. 110 of 1979, for which the petitioner is in custody presently. It is submitted that by exercise of powers conferred under Sections 427, 428 and 482 of the Code of Criminal Procedure, 1973 (in short, Cr PC) such a direction can be given. Learned counsel for State on the other hand submitted that the petition is misconceived, and in any event looking at the antecedent of the petitioner which is over-flowing with criminal activities, direction as sought for should not be granted, even if it is conceded for the sake of argument that such a direction can be given under Section 482, Cr PC.
3. At this juncture, it is relevant to take a bird's eye view of the provisions contained in Sections 427 and 428, Cr PC. The former deals with sentence on an offender already sentenced for another offence. It fixes time from which a sentence car, be passed on an offender. It states that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprison- for life shall commence at he 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. The general rule is that sentences commence to run from the time of their being passed and this section makes an exception in the case of persons already undergoing imprisonment i. e. subsequent sentence shall commence at the expiration of the previous sentence, unless the Court directs that it shall run concurrently with the previous sentence. This rule has no application if (a) the transaction relating to the offence is not the same, or (b) if facts constituted two offences are quite different. Unless Court directs that such sentence shall run concurrently with such previous sentence, the imprisonment shall) emmence at the expiration of sentence to which offender has been previously sentenced. Sub-section (1) of Sec 427 contemplates a sentence anterior in time to the one which 3 person is undergoing, and also a subsequent sentence on a subsequent conviction. A concurrent sentence carries the inbuilt conception of the prisoner undergoing the sentences in connection with two different punishments imposed in two different cases simultaneously or concurrently at the same time. Law has resorted to a fiction and has treated the sentence being undergone by the prisoner as being undergone for both the offences simultaneously or concurrently. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constituted 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 application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. No single consideration can definitely determine the proper sentence. In arriving at an appropriate sentence, the Court must consider, and sometimes reject many factors. In consecutive sentences, in particular, the Court cannot afford to be blind to imprisonment which the accused is already undergoing. Similar view was expressed by apex Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v.Asst.Collector of Customs (Prevention).Ahmedabad and Ors., AIFU988 SC 2143. The Court must apply its mind to the facts and circumstances and should not make it a meaningless exercise, missing and nuances of the case The Court in exercise of power under Section 482 can direct sentence to run concurrently. Such an order can be passed to secure ends of justice. But the power should not be used in a routine manner.
4. Section 428 comes into operation in a different setting. Section is a new one which was introduced for the first time in the Cr PC on the basis of the recommendation of the Joint Select Committee. The objection of Section 428 was to relieve the anguish of prolonged detention of undertrials and to avoid over-crowding in jails. To dispense with slow motion justice and long distance investigation and trial proceedings the wholesome provision has been introduced. It simply aims at setting off or crediting the period of pre-conviction detention of the accused of a case towards the sentence ultimately awarded to him after his conviction in that very case. By granting set-off credit is given to the convict only in the calculation of the term of imprisonment awarded to him for the period he was in detention. The section applies only to a stags before conviction. Ses. 428 emphatically states that the period of detention which is allowed to be set-off against term of impri- sonment imposed on the ground of conviction must be one undergoie by him during investigation, inquiry or trial in connection with "same case" in which he can be convicted. Where one period does not relate to the same case, the accused is not entitled to benefit of set-off A situation may arise when a person is undergoing sentence in one case in which he has been convicted may be tried in another case tor another offence. If the latter results in conviction, the period of detention in the former case cannot be counted for set-off. That is to say a person cannot have double benefit under Sections 428. In Raghbir Singh v. State of Haryana, 1984 SC 1796 it was observed that Section 428 provides for the setting off of the period of detention as an under-trial prisoner against the sentence of imprisonment imposed on him. Hence in order to secure the benefit of Sac. 423 the prisoner should show that he had been detained in prison for the purpose of investigation, inquiry or trial of the case in which he is later on convicted and sentenced. It follows that if a person is undergoing the sentence of imprisonment imposed by a Court of law on being convicted of an offence in one casa during the period of investigation. inquiry of some other case. he cannot claim that the period occupied by such investigation, inquiry or trial should be set off against the sentence of imprisonment to be imposed in the flatter case, even though he was under detention during such period. In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is latter on convicted and sentenced to undergo imprisonment Such a person cannot claim a double benefit under Section 428 i.e. the same period being counted as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for committing the latter offence as well learned counsel for petitioner accepts that Sections 427 and 428 CrCP strictly have no application to the facts of the present case. But he submits that period of detention during investigation, inquiry or trial in another case where he has been acquitted should, be reckoned and due credit should be given for it, even though there is no specific provision in Cr PC. It is submitted that by exercise of power under Section 432 to secure ends of justice, such a direction should be given.
5. Section 482 Cr PC is statutory recognition of age-old and well- established principle that every Court has inherent power to act ex deb to justitiae to do that real and substantial justice for the admini- stration of which alone it exists or to prevent abuse of process of Court. The authority of Court exists for the advancement of justice and if any attempt is made to abuse that authority, so as to prevent justice, the Court must have power to prevent that abuse. The rule of inherent powers has its source in a Latin maxim guando lex aliquid ahout concedit, concedera videture id, sine quo res ipsa ease non potest" which means that "when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist." What are ends of justice ? To the particular result in any particular case, justice is indifferent. It is justice by ascertainment of truth as to the facts on a balance of plus and minus factors.
6. It is submitted that direction can be given for concurrent running of the sentence by exercise of power under Section 482 Cr PC and by the same analogy, direction can be given under Section 482 for set-off of period suffered in custody in one case against sentence imposed in another, without entering into controversial arena about jurisdiction to exercise power under Section 482, it can be looked at from another angle. Even while exercising discretion conferred under Sections 427 the same has to be exercised on judicial principles. If a situation arises for invoking inherent power under Section 482, Court has to see whether circumstances and the object for which inherent power is to be exercised are in existence and can be achieved. It has to be equally established that inherent power is to be exercised to do right and not to do wrong under it. It can be exercised sparingly only when the Court feels furtherance of ends of justice requires it, and not as a matter of routine. In a case of hardened criminals, and habitual offenders, benefit was refused by Kerala High Court, it was observed that ends of justice requires that sentence should be run consecutively. (See Sukumaran Nair v. State of Kerala, (1968) 2 KLT 1018. Section 427 Cr PC directs that one sente- nce takes effect after the other. The sentencing Court. has discretion to direct concurrency. The investiture of such discretion carries with it inbuilt requirement to exercise it on sound principles and not in a routine manner. Unprincipled exercise or unregulated benevolence of such discretion may ultimately go against statutory intents.
7. Geming to the antecedents of the petitioner at indicated above, there were three orders of detention passed against him under the Act. In addition as records produced before me shows that he is involved in large number of cases, True, he has been acquitted in some cases, but others are still pending in different stages. The application is without any merit and is dismissed.