Karnataka High Court
Ambarish S Kapadia vs State By Cbi on 16 December, 2016
Equivalent citations: 2017 (1) AKR 573
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2016
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.3865 OF 2016
CONNECTED WITH
CRIMINAL PETITION No.6918 OF 2016
IN CRL.P.No.3865/2016
BETWEEN:
Ambarish S Kapadia,
Son of Sundarlal,
Aged about 64 years,
Residing at No.9,
Ashish Suvarna Nagar,
North South Road,
No.5, JVPD Scheme,
Mumbai - 400 056.
...PETITIONER
(By Shri Mohammed Tahir, Advocate)
AND:
State by CBI,
CBI Karnataka State Head Quarters,
Ganganagar,
Bangalore - 560 032.
2
...RESPONDENT
(By Shri P. Prasanna Kumar, Advocate)
*****
This Criminal Petition filed under Section 482 of the code
of Criminal Procedure, 1973, by the advocate for the petitioner
praying to run the sentences concurrently imposed in
Spl.C.C.No.18/1987 wherein petitioner arrayed as accused No.2,
in Spl.C.C.No.128/1993 wherein petitioner arrayed as accused
No.2, in C.C.No.1943/1987 wherein petitioner arrayed as accused
No.1 in C.C.No.6567/1989 wherein petitioner arrayed as accused
No.1, in C.C.No.6568/1989 wherein petitioner arrayed as accused
No.1.
IN CRL.P.No.6918/2016
BETWEEN:
Rama @ Ramaiah,
Son of Kalasaiah,
Aged about 33 years,
No.488, Brahmaputra Nadi Road,
Srinagara,
Bengaluru - 560 050.
...PETITIONER
(By Shri Gireesha J.T., Advocate)
AND:
The State of Karnataka by
State Public Prosecutor,
High Court Buildings,
Bangalore - 560 001.
...RESPONDENT
(By Shri Chetan Desai, Government Pleader)
*****
This Criminal Petition filed under Section 482 of the code
of Criminal Procedure, 1973, by the advocate for the petitioner
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praying to extend the benefit under Section 427(2) Cr.P.C. and
direct that the sentence run concurrently and collectively in
respect of: 1) order dated 10.2.2010 passed by this Hon'ble Court
in Crl.A.No.2241/2006 (Fast Track Court-II, Bangalore City in
S.C.No.642/2003) 2) order dated 23.9.2014 passed by this
Hon'ble Court in Crl.A.No.737/2013 (V Additional District and
Sessions Judge, Tiptur in S.C.No.55/2011).
These Criminal Petitions having been heard and reserved on
24.11.2016 and coming on for pronouncement of Orders this day,
the Court delivered the following:-
ORDER
Heard the arguments on both sides.
2. These petitions involve a similar question of law and hence are disposed of together.
3. The moot question in these petitions is whether, substantive sentences running consecutively due to multiple convictions in different cases could be ordered to run concurrently by this Court, in exercise of power under Section 482 of the Code of Criminal Procedure, 1973 (Hereinafter referred to as 'CrPC', for brevity).
4CRIMINAL PETITION 3865/2016
The petitioner in this petition has been convicted and sentenced to imprisonment in six different cases which are as follows:
The petitioner was arraigned as accused No.2 in Spl.C.C.No.18/1987 before the XXI Additional City Civil and Sessions Judge for CBI Cases, Bangalore, wherein the petitioner was convicted and sentenced to undergo simple imprisonment for a term of 4 years for an offence punishable under Section 120B read with Section 420 of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC', for brevity) and to pay a fine of Rs. 20,000/-. The petitioner was further convicted and sentenced to undergo simple imprisonment for a period of 4 years for an offence punishable under Section 468 IPC and to pay a fine of Rs.20,000/-The petitioner was also convicted for an offence punishable under Section 471 IPC and sentenced to undergo simple imprisonment for a period of 1 year and to pay a fine of Rs.20,000/-. The substantive sentences were directed to run concurrently.5
The petitioner proceeded to file an appeal against the aforesaid conviction under Section 374(2) of the CrPC.,1973 before this Court in Criminal Appeal No. 1758/2003 wherein the appeal was allowed in part and the sentence was modified by sentencing the petitioner to undergo imprisonment for a period of two years and pay a fine of Rs. 20,000/- for the offence punishable under Section 120B r/w 420 IPC; He was further sentenced to imprisonment for a period of two years with a fine amount of Rs.20,000/- for offence punishable under section 468 IPC; and to serve a further sentence of imprisonment for a period of one year and pay fine of Rs. 20,000/- for offence punishable under Section 471 of the IPC. This Court has ordered the sentence of imprisonment to run concurrently and further ordered set-off against the term of imprisonment already served by the petitioner during trial, under Section 428 of the CrPC., 1973.
The petitioner was arraigned as accused No 2 in Spl. C.C. No 128/1993 before the XXI Addl. City Civil and Sessions Judge for CBI Cases, Bangalore, wherein the petitioner was convicted and sentenced to undergo simple imprisonment for a term of 3 6 Years and to pay a fine amount of Rs. 50,000/-, for an offence punishable under section 120B IPC; Rigorous imprisonment for a term of 3 years and pay a fine amount of Rs. 50,000/-, for an offence punishable under Section 420 IPC. The Court further ordered that the substantive sentence of imprisonment shall run concurrently.
The petitioner had preferred an appeal under Section 374(2) of the CrPC, against the said judgment in Crl.A No.1527/2004 wherein this Court has dismissed the appeal, confirming the judgment of conviction and sentence passed by the Court below.
The petitioner was arraigned as accused no.1 in C.C.No.1943/1987 before the XVII Additional Chief Metropolitan Magistrate, Bangalore. The learned Magistrate has passed an order of conviction and sentenced the petitioner to undergo simple imprisonment for a period of one year for the offences under Sections 120B, 465, 467, 471 and 420 IPC and imposed a fine of Rs.2,000/- in respect of each of the aforesaid offences and further ordered that the sentence of imprisonment was to run concurrently.
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Aggrieved by the said conviction, an appeal was filed before the XXI Additional City Civil & Sessions Judge & Principal Judge for CBI Cases, Bangalore City in Crl.A No.432/2007, which was allowed in part, acquitting the appellant of the offence under Section 120-B and maintaining the conviction insofar as offences under Sections 420, 465, 468 and 471 IPC. The Court below further ordered that the sentence imposed shall be served by the petitioner after serving the sentence in other conviction warrants pending against the appellant.
The petitioner was arraigned as accused no.1 in C.C.No.6567/1989 before the XVII Additional Chief Metropolitan Magistrate, Bangalore. The learned Magistrate passed an order of conviction and sentenced the petitioner to undergo simple imprisonment for a period of one year and also to pay a fine amount of Rs.2000/- in respect of each of the offences under Sections 120B, 465, 467, 471 and 420 IPC.
Aggrieved by the said conviction, an appeal was filed before the XXI Additional City Civil & Sessions Judge & Principal Judge for CBI Cases, Bangalore City in Cr.A 8 No.431/2007, which was allowed in part, acquitting the appellant of the offence under Section 120B and maintaining the conviction insofar as offences under Sections 420, 465, 467 and 471 IPC. The Court below further ordered that the sentence imposed shall be served by the petitioner after serving the sentence in other conviction warrants pending against the appellant.
The petitioner was arraigned as accused no.1 in C.C.No.6568/1989 before the XVII Additional Chief Metropolitan Magistrate, Bangalore. The learned Magistrate passed an order of conviction and sentenced the petitioner to undergo simple imprisonment for a period of one year for offences under Sections 120B, 467, 471 and 420 IPC and imposed a fine of Rs. 2000/- in respect of each of the aforesaid offences and further ordered that the sentence of imprisonment was to run concurrently.
Aggrieved by the said conviction, an appeal was filed before the XXI Additional City Civil & Sessions Judge & Principal Judge for CBI Cases, Bangalore City in Cr.A No.430/2007, which was dismissed, confirming the order passed by the Magistrate.
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The petitioner was arraigned as accused No.4 in Spl.Case No.10/1994 wherein the petitioner has been convicted under Section 467 IPC read with Section 120B IPC and sentenced to undergo imprisonment for a term of 7 years and to pay a fine amount of Rs.50,000/-; imprisonment for 5 years and payment of fine amounting to Rs.50,000/- for an offence under Section 468 IPC; imprisonment for a term of 7 years and a fine amount of Rs.50,000/- for an offence punishable under Section 471 IPC; imprisonment for a period of 3 years and fine of Rs. 25,000/- for an offence punishable under Section 420 IPC. The sentence of imprisonment under these Sections has been ordered to run concurrently. Aggrieved by the said order of the Special Court, the petitioner has preferred an appeal before the High Court of Gujarat in Cr.A No.460/2014 which is said to be pending before that Court.
4. It is contended by the petitioner that he is 64 years old and unable to bear the hardship of imprisonment. It is also contended that he has been denied the benefit under Section 427 of the CrPC due to lack of an express order by the Court below. 10
5. The learned Counsel for the respondent contends that the petitioner is the prime accused in several cases wherein he has been convicted and sentenced to imprisonment for allegedly creating and depositing forged documents in various banks, thereby defrauding the banks of public money.
Reliance is placed on the decisions of the Supreme Court and of various High Courts in support of his contention that the petitioner cannot claim the benefit under Section 427(1) of the CrPC, by recourse to an independent application under Section 482 of the CrPC and such relief could only be considered in the original case or in an appeal thereof. It is further contended that the benefit under Section 427 CrPC can only be exercised by the Courts with respect to offences committed under a single transaction.
6. It is to be noticed that the petitioner in the instant case had made a plea before the XXI Additional City Civil & Sessions Judge & Principal Judge for CBI Cases, Bangalore City in Cr.A.No.430/2007, for the sentence passed in the appeal to run concurrently with the earlier sentences of imprisonment. The plea, 11 however was rejected by the Special Court, which held that the same could not be countenanced as no such provision was available in law. It further held that the charges against the appellant in each of the cases was of distinct criminal acts and that the same cannot be clubbed together to give the benefit of concurrent running of the sentences. The Special Court also took into account the criminal background of the petitioner and held that the same did not warrant the granting of such relief to the petitioner. Aggrieved by the aforesaid order passed by Special Court, the petitioner has approached this Court.
In so far as the decision relied upon by the Counsel for the petitioner in Arjun Ram and Others v. State of Rajasthan and Ors., [2016]1 WLN 481, decided by a Division Bench of the Rajasthan High Court on 19-01-2016, is concerned, it is laid down as follows:-
"We are of the considered opinion that to meet the ends of justice and to rectify the gross error the powers under Section 482 of the CrPC. can be exercised, if Court arrives at a conclusion that the Trial Court, Appellate Court or the Revisional Court, as the case 12 may be, failed in completing the circuit of justice while invoking or not invoking the discretion vested with it as per Section 427 CrPC. The Court while doing so must keep in mind all necessary ingredients and precedents which are to be taken into consideration to exercise the discretion as per Section 427 of the CrPC."
Though the Division Bench has held that the use of the inherent power under Section 482 CrPC is justified for an order under Section 427 CrPC, such power can only be exercised if the Trial Court, Appellate Court or the Revisional Court has failed in its duty in securing the ends of justice, which would again be subject to consideration of the facts and circumstances of the case.
It cannot be said that the Court below in the present case has failed in its duty to ensure justice to the petitioner while rejecting the plea of the petitioner. The Special Court in Cr.A.No.430/2007 while rejecting the petitioner's plea, has taken into consideration all the relevant circumstances and observed that the charge against the petitioner in each of the charge sheets was a distinct criminal act and that the same cannot be clubbed together. 13 Therefore, the petitioner cannot be given the benefit as sought for by him.
The Special Court has also observed the background of the petitioner who has been convicted under 6 different cases, which would indicate that the petitioner is a habitual offender. It is apposite here to refer to a Judgment of the High Court of Punjab and Haryana in the case of Jang Singh v. State of Punjab, ILR (2007)2 P&H 550, wherein it was observed that:-
"It may also have to be kept in view that if principle of concurrency is applied in cases where the offender is habitual, it may repel the very basic and normal rules as laid down in Section 427 CrPC. If such principles are universally applied unmindful to such consideration of the offender being habitual, then it may lead to hostile discrimination negatively because then it would amount to giving similar treatment to a normal as well as a habitual offender."
Further, the Counsel for the petitioner has also relied upon three judgments of this Court, where it has exercised its inherent power in passing the orders directing concurrent running of 14 sentences. However, the facts in each of the cases are considerably different from the facts and circumstances as in the present case.
In the case of Vazeer Ahmed Salik v. State by CBI, in Criminal Petition No.7868/2015 decided on 22/3/2016, the petitioner was convicted and sentenced to imprisonment under 5 different cases for seven to ten years in each of the cases for offences punishable under various Sections of the IPC. The petitioner therein had already undergone imprisonment for a period of 14 years. He was aged about 72 years and if this Court had not passed an order under Section 427(1) of the Code for the sentences to run concurrently, the petitioner would have had to undergo imprisonment for a total period of 35 years, which would have resulted in a grave miscarriage of justice as he would have to undergo imprisonment till his death.
In the case of Sunil Kumar and Ors. v. State of Karnataka, Criminal Petition No. 6346/2015 decided on 10/12/2015, the petitioners were convicted and sentenced to imprisonment under seven different cases. They were under judicial custody for a period of 7 years. This Court observed that if the sentences were 15 to run consecutively, they would have to undergo imprisonment for a total period of 39 years, as if they were serving a major punishment for life. Therefore, to prevent such miscarriage of justice, the various sentences of imprisonment were ordered to run concurrently.
In the case of Vadiraja v. State, Criminal Petition No.6974/2015, decided on 23/11/2015, the petitioner was convicted and sentenced to serve imprisonment by the Sessions Court in three different cases for offences punishable under Sections 392 and 413 IPC for a term of 7 years for each case. However, on appeal before this Court the sentence was modified by reducing the period of imprisonment to 5 years. The petitioner therein filed a separate application under Section 482 praying for the sentences to run concurrently. This Court took into consideration the fact that the petitioner was a poor person who had the responsibility of maintaining his family. The Court thus considered it appropriate to exercise the inherent power and give effect to Section 427(1) and thereby ordered the different cases to run concurrently.
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Section 482 CrPC being an extraordinary power, cannot be pressed in aid except for remedying a flagrant abuse by a Subordinate Court of its powers. However, in the instant case, the Court below has exercised its powers reasonably and has provided sufficient reasons for the exercise of its discretion.
Therefore, the refusal of the Court below to direct the sentences to run concurrently with the previous sentence cannot be said to have caused any miscarriage of justice.
In Rajendra B. Choudhari v. State of Maharashtra and Anr. 2007 CriLJ 844, which has been relied upon by the respondent, a Division Bench of the Bombay High Court, expressing its opinion with regard to the exercise of discretionary power under Section 427 has stated thus "However, the Court has to be cautious in exercising such a power and has to ensure that the deterrent effect of the sentence is not lost. The sentences should not be directed to run concurrently if to do so would make the sentences ineffective or the crime inconsequential. If several sentences are allowed to run concurrently the crime may go unpunished." 17 Reliance is also placed on M.R.Kudva v. State of A.P., (2007) 2 SCC 772, wherein it is laid down that when Sub-section (1) of Section 427 has not been invoked for the concurrent running of the sentences either in the original case or in the appeal, a separate application for the same cannot be made before the High Court under Section 482 of the CrPC. It was laid down that the High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgment in appeal.
It was also observed with reference to Mohd. Akhtar Hussain v. Asst. Collector of Customs, (1988) 4 SCC 183, that if a given transaction constitutes two offences under two enactments generally, it is wrong to have two consecutive sentences. It was, however, opined that it would be proper and legitimate to have concurrent sentences; but at the same time it was held that the rule would have no application if the facts constituting the same offences are quite different.
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In the present case, there is no error of law apparent on the face of the record, nor can it be said that the order of the Trial Court has led to any miscarriage of justice.
Therefore, the petition is dismissed.
CRIMINAL PETITION 6918/2016 In this petition, the petitioner has been convicted and sentenced to imprisonment in two cases, namely:
The petitioner was arraigned as accused No.1 in S.C. No. 642/2003 before the Fast Track Court-II Bangalore City. The petitioner has been convicted along with 6 other offenders by order dated 7.8.2006 under Section 302 read with Section 149 of IPC and sentenced to serve life imprisonment and to pay a fine amount of Rs. 1000/-. Aggrieved by the said order the petitioner has filed an appeal before this Court in Crl.A.No. 2241/2006. This Court dismissed the appeal upholding the conviction and sentence as sound and proper.
The petitioner was arraigned as accused No.1 in S.C. No.55/2011 before the V Additional District & Sessions Judge, 19 Tiptur. The petitioner was convicted and sentenced to undergo Rigorous imprisonment of 7 years for offences punishable under Sections 395 read with Section 397 IPC and to pay a fine of Rs.50,000/-. Aggrieved by the said order, the petitioner filed an appeal in Cr.A.No.764/2013 before this Court. This Court had confirmed the order passed by the Sessions Court and dismissed the appeal without any direction as to whether the sentence was to run consecutively or concurrently.
7. It is contended that the petitioner has been in judicial custody since 3.07.2003 till the date of conviction and by virtue of these sentences the petitioner faces the ignominy of serving these sentences consecutively in the absence of an order indicating that the sentences shall run concurrently.
8. In the above background, it is relevant to notice Section 427(2) of the CrPC, which reads as under:
"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."20
The meaning of a sentence of imprisonment for life is no longer res integra. In the case of Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600, the Apex Court has laid down that a sentence of imprisonment for life must prima facie be treated as a sentence of imprisonment for the whole of the remaining period of the convicted person's natural life unless commuted or remitted by the appropriate authority. In such a situation the question of a subsequent sentence running consecutively does not arise and consequently, the subsequent sentence, irrespective of whether the sentence is an imprisonment for life or an imprisonment for a specific term can only be superimposed upon the earlier sentence of life imprisonment and certainly not added to it.
Insofar as the legal position is concerned, the Apex Court in the case of Ranjit Singh v. State of Chandigarh, (1991) 4 SCC 304, which was approved by the Constitution bench of the Supreme Court in the recent case of Muthuramalingam v. State, (2016) 8 SCC 313, the Apex Court has laid down that Sub-section 21 (2) of Section 427 is in the form of an exception to the General Rule enacted in sub-section (1) and that the sentence on the subsequent conviction commences on expiry of the first sentence unless otherwise directed by the Court for it to run concurrently. It was further observed by the Apex Court as follows:
"The only situation in which no direction of the Court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub-section (2) which has been enacted to avoid any possible controversy based on sub-section (1) if there be no express direction of the Court to that effect."
In light of the above observation made by the Supreme Court, the requirement of an express order on the part of the Court in cases falling squarely within the ambit of Section 427(2) of the CrPC, 1973 is not a prerequisite for the subsequent sentence to run concurrently.
Having regard to the settled legal position, the petition is allowed and the subsequent sentence of 7 years would run 22 concurrently with the sentence of life imprisonment imposed in the first case.
Sd/-
JUDGE nv/mh*