Uttarakhand High Court
Mohd. Salman vs State Of Uttarakhand on 24 September, 2020
Equivalent citations: AIRONLINE 2020 UTR 457
Author: N.S. Dhanik
Bench: N.S. Dhanik
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Appeal No. 507 of 2013
Mohd. Salman ...Appellant
Vs.
State of Uttarakhand ...Respondent
Mr. Tarun Prakash Takuli, learned counsel for the appellant.
Mrs. Manisha Rana Singh, learned A.G.A. for the State.
Dated: 24th September, 2020
Hon'ble N.S. Dhanik, J.
This criminal appeal is preferred by the appellant against the judgment and order dated 15.02.2013 passed by the learned District & Sessions Judge, Pithoragarh in Session Trial No. 05 of 2013, "State vs. Mohd. Salman" whereby the appellant has been convicted for the offence punishable under Section 366-A IPC and sentenced to undergo ten years rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment fine, he shall serve the additional six months imprisonment; the appellant has also been convicted for the offence punishable under Section 376 IPC and sentenced to undergo ten years rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment, he shall serve the additional six months imprisonment and the appellant has further been convicted for the offence punishable under Section 506 (2) IPC and sentenced to undergo four years rigorous imprisonment.
2. Learned counsel for the appellant does not press this appeal on merits. He submits his arguments only on the quantum of sentence. Since the revisionist's counsel does not challenge the conviction, this Court need not go into the merits 2 of the case and, accordingly, the conviction in the aforementioned offences is maintained.
3. Learned State Counsel does not seriously object to the prayer made on behalf of the appellant. She fairly concedes that appellant has served about nine years nine months in the jail.
4. Learned counsel for the appellant submits that the sentenced awarded to the appellant in the instant case in which he was found guilty ought to run concurrently and not consecutively. In support of his argument, learned counsel for the appellant relied upon the judgment of Hon'ble Supreme Court in the case of V.K. Bansal vs. State of Haryana & another; reported in (2013) 7 SCC 211. Relevant paragraph nos. 10 & 16 of the said judgment are being reproduced herein below:
"10. We are in the case at hand concerned more with the nature of power available to the Court under Section 427(1) of the Code, which in our opinion stipulates a general rule to be followed except in three situations: one falling under the proviso to sub-section (1) to Section 427; the second falling under sub-section (2) thereof; and the third where the Court directs that the sentences shall run concurrently. It is manifest from Section 427(1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the Courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises.3
16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor."
5. Section 427 of the Code of Criminal Procedure reads as under:
"427. Sentence on offender already sentenced for another offence.
(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 imprison- ment 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.
(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 con- currently with such previous sentence."
6. Section 427 of the Cr.P.C. deals with situations where an offender who is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life. It provides that 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.
7. Considering the aforesaid submissions advanced by learned counsel for the parties and perused the judgment of 4 Hon'ble Apex Court in V.K. Bansal vs. State of Haryana & another; reported in (2013) 7 SCC 211, this Court is of the view that the ends of justice would be sub-served. Consequently, the criminal appeal is dismissed on merit. However, the part of the judgment is modified to the extent that the sentence awarded to the appellant under Section 366-A IPC for ten years rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment fine, he shall serve the additional six months imprisonment and under Section 376 IPC for ten years rigorous imprisonment and a fine of Rs. 5,000/- and in default of payment, he shall serve the additional six months imprisonment and under Section 506 (2) IPC for four years rigorous imprisonment is hereby affirmed, however all the sentences are directed to run concurrently. The impugned judgment and order stands modified to the extent indicated above.
8. Let a copy of this judgment and order, along with the LCR be sent back to the Court concerned for doing the needful.
(N.S. Dhanik, J.) 24.09.2020 AK