Madhya Pradesh High Court
Vikram @ Bheem vs The State Of Madhya Pradesh on 23 August, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
:1:
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
CRIMINAL APPEAL No. 1342 of 2016
Between:-
1. VIKRAM @ BHEEM S/O JUJHARSINGH,
AGED ABOUT 25 YEARS, VILLAGE NOALAYA
P.S.SALSALAI (MADHYA PRADESH)
2.ARJUN @ JEEVAN S/O JUJHARSINGH
PARMAR, AGED ABOUT 23 YEARS, VILLAGE
NOLALYA PS SALSALAI SHAJAPUR (MADHYA
PRADESH)
3.RAKESH S/O MANOHARSINGH PARMAR,
AGED ABOUT 23 YEARS, VILLAGE PIPLODA
ISMILE PS SALSSLAI SHAJAPUR (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI AKASH SHARMA, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER
THRU.P.S.KALAPIPAL(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA,GOVT. ADVOCATE )
....................................................................................................................
Reserved for orders on I.A.No.6554/2022 : 29.06.2022 Passed on : 23.08.2022 ............................................................................................................
:2:This appeal coming on for order this day, the Court following:
ORDER on I.A.No.6554/202201. Heard on I.A.No.6554/2022, which is an application under Section 427(1) of the Cr.P.C. filed on behalf of the appellants seeking directions be issued to run the sentence passed in S.T. No.245/2015 (Criminal Appeal No.1342/2016) concurrently with the sentence awarded to them in S.T. No.256/2015 (Criminal Appeal No.1004/2016). In other words, the incarceration period already spent in S.T.No.256/2015 be merged with the sentence awarded in S.T. No.245/2015.
02. The contention of the appellants is that they were convicted in two different Crimes viz; Crime No.113/2015 and Crime No.220/2015, both for commission of offences under Sections 392 r/w 34 and 397 r/w 34 of the I.P.C. and under Section 27 of the Arms Act and for which they were tried in two separate Sessions trial in ST No.245/2015 and S.T.No.256/2015.
03. It is stated that in Cr.A.No.1004/2016 (Vikram @ :3: Bheem vs. State of Madhya Pradesh) the appellants were convicted and sentenced in S.T. No.256/2015 on 15.7.2016 as under:-
Appellant Section Imprisonmen Fine Imprisonment in lieu of t Fine Vikram@ 392 r/w 34 IPC 10 years 5000/- 6 months Bheem 397 r/w 34 IPC 07 years 2000/- 6 months Rakesh 392 r/w 34 IPC 10 years 5000/- 6 months 397 r/w 34 IPC 07 years 2000/- 6 months And, in Cr.A. No.1342/2016 the appellants were again convicted and sentenced in ST No.245/2015 vide judgment dated 31.8.2016 as under:-
Appellant Section Imprisonment Fine Imprisonment in lieu of Fine Vikram@ 392 r/w 34 IPC 10 years 2000/- 6 months Bheem 397 r/w 34 IPC 07 years 2000/- 6 months 27 Arms Act 05 years 2000/- 6 months Rakesh 392 r/w 34 IPC 10 years 2000/- 6 months 397 r/w 34 IPC 07 years 2000/- 6 months
04. The contention of the appellants is that, as per the jail Authorities, the jail incarceration period of S.T. No.245/202015 :4: in which the present appeal bearing Criminal Appeal No.1342/2016 has been preferred, would commence only after the completion of the sentence in S.T.No.256/2015,which relates to Cr.A.No.1004/2016 and going by the jail Manual, the appellants would face incarceration period of 20 years; whereas even in the life imprisonment, a person is required to undergo around 14 years of jail sentence. Thus, the application under Section 427(1) of the Cr.P.C. has been filed.
05. Counsel for the appellants has also submitted that in S.T. No.256/2015 (in Cr.A.No.1004/2016) the appellants have already suffered the jail sentence of around 08 years and six months which in itself is substantive period. Thus, it is submitted that in both the Sessions Trials, the jail sentences be directed to run concurrently.
06. In support of his submissions, Shri Akash Sharma, learned counsel for the appellants has also relied upon the decisions rendered by the Apex Court in the case of Nagraja Rao vs. C.B.I. {Criminal Appeal No. 104/2015 (arising out of SLP (Crl.) No. 7551/2014); Ammavasai and another vs. Inspector of Police and others; Mohd. Akhtar Hussain Alias... vs. Assistant Collector of Customs; Senaul s/o Afsar :5: Shaikh vs State of Gujarat State of Maharashtra and another vs. Najakat Alia Mubarak Ali; Mamu Ram vs. State of Rajasthan.
07. Counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that the appellants have been convicted in two different cases of the same nature and thus, they cannot seek the benefit of the aforesaid provision.
08. Heard the counsel for the parties and also perused the record.
09. So far as Section 427 (1) of the Cr.P.C. is concerned under which the present application has been filed, the same 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 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.":6:
(emphasis supplied)
10. A bare perusal of the aforesaid Section clearly reveals that ordinarily, if 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 the subsequent sentence shall run concurrently with such previous sentence. Thus, it is purely the discretion of the Court under the facts and circumstances of the each case to decide whether in case of two convictions of a person the conviction shall run consecutively or concurrently. In such circumstances, it is necessary to see the gravity of the offences involved in the cases, committed by the said person.
11. So far as the gravity of the offence in the cases on hand is concerned, in both the cases the appellants have been convicted and sentenced under the serious charges of Sections 392 and 397 of the IPC, which refer to robbery and dacoity with attempt to cause death or grievous injury as the appellants were also having a fire arm with them at the time of the incident. But admittedly, the pistol was not used by them and no injury was suffered by the complainants in both the cases.:7:
The Supreme Court, in the case of Ammavasai and another vs. State of Inspector of Police and others (2000) 9 SCC 749, has held as under:-
" 2. Appellants in this case are two. 1st appellant-Ammavasai was convicted in 4 different cases the occurrence in all of which took place between 27-3-1990 and 7-5-1990. The offence found against him in all the cases was under Section 395 of the Indian Penal Code and in each case he was sentenced to undergo rigorous imprisonment for 7 years. If he is not given the benefit in exercise of the discretion conferred under Section 427 of the Criminal Procedure Code, he may have to undergo a very long period of 28 years in jail.
3. The 2nd appellant-Deivaraj was convicted in 5 different cases the occurrence in all of which took place between 21-10-1989 and 7-5-1990. He was also found guilty under Section 395 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of 7 years in each case. If the benefit conferred under Section 427 is not extended to him, he may have to undergo imprisonment for a total period of 35 years in jail.
4. On the other hand, we allow the appellants to have the benefit of all the sentences to run concurrently, he would be out by now after serving only imprisonment for a period of 7 years awarded in one case. Both courses are unacceptable to us and, therefore, we thought of a via-media which would be consistent with the administration of criminal justice. After bestowing our anxious consideration we thought that if the appellants would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice.
5. We, therefore, direct that the sentence imposed on the 1st appellant pursuant to the conviction passed by the Assistant Sessions Judge, Pondicherry in S. C. 66 of 1991 will run un telescoped by any other sentence imposed upon him subsequently. In other words, the sentence imposed in subsequent cases would start running only on the termination of the sentence imposed upon him in the afore-mentioned case (S. C. 66 of 1991 on the file of Assistant Sessions Judge, Pondicherry). We also order that the sentence imposed upon him in the following 3 cases will run concurrently :
1. S.C. 135/1993 in the Court of Sessions Judge, Tuticorin.
2. S.C. 69/1994 in the Court of Sessions Judge, Nagarcoil.
3. S.C. 197/1995 in the Court of Principal Sessions Judge, Nagapattinam.
6. Regarding the 2nd appellant also, we adopt the same measure and order that the sentences imposed upon him by the Assist ant Sessions :8: Judge, Pondicherry in S. C. 66 of 1991 will run unaffected by another sentence imposed upon him subsequently. Only on the termination of the aforesaid sentence the jail authorities would start reckoning the sentence imposed on him in respect of the remaining 4 cases, which are detailed below :
1. S. C. 32/1994 in the Court of Sessions Judge, Dindigul.
2. S.C. 135/1993 in the Court of Sessions Judge, Tuticorin.
3. S. C. 69/1994 in the Court of Assistant Sessions Judge, Nagarcoil.
4.S. C. 197/1995 in the Court of Assistant Sessions Judge, Nagapattinam.
7. We make it clear that we permit the sentences passed on the 2nd appellant in respect of above-mentioned 4 remaining cases to run concurrently.
8. Appeal is disposed of in the above terms."
12. However, on a close scrutiny of the case, it is found that admittedly the appellant has already undergone a sentence of around 08 years and six months as of now and thus, only two years are left out of the total period of 10 years whereas, in the other case, bearing Cr.A.No.1342/2016 the appellants' sentence is yet to commence.
13. In Cr.A.No.1342/2016 the appellants were convicted and sentenced in S.T. No.245/2015 on 31.8.2016, whereas, in Cr.A.No.1004/2016 arising out of S.T. No.256/2015,the appellants were again convicted and sentenced vide judgment dated 15.7.2016.
14. So far as the provision of Section 427 is concerned, it enables a court to direct to allow the two different sentences to :9: run concurrently. In other words it allows the two different sentences to overlap each other but, such overlapping would not be retrospective in nature but would be prospective, i.e. it would start from the date of the second conviction.
16. Thus, considering the nature of the case and the overt act of the appellants which has not resulted in any injury to the complainants in both the cases, in such circumstances, to meet the ends of justice, it is directed that only the substantive sentences awarded to the appellants would run concurrently and it is made clear that the award of fine and the default sentence would not be affected by this order in both the cases.
17. It is, therefore, direct that the sentence imposed on the appellants pursuant to the conviction passed by the learned District Judge will run concurrently thus, the sentences imposed upon them in two cases viz; S.T. No.245/2015 and S.T. No.256/2015 will run concurrently.
18. Accordingly, the application-I.A.No.6554/2022 stands disposed of.
(Subodh Abhyankar) JUDGE moni MONI Digitally signed by MONI RAJU DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=6fb601f03d4083a3289219d85392bac3bde1be8a53b d80aeba7af5a5244844c1, RAJU pseudonym=85E21E23646B47526A49E99D9182D0AE8ABD62 D1, serialNumber=3BFD07BEC0C790E4AEA8CB122D629549D1067 813B2AE8FB016F1BF08EE881126, cn=MONI RAJU Date: 2022.08.23 16:43:28 +05'30'