Gauhati High Court
Amir Uddin Barbhuyan And Anr vs The Government Of Assam And Ors on 3 September, 2012
THE GAUHATI HIGH COURT
(The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram &
Arunachal Pradesh)
WP(C)[Taken Up] No. 3193 of 2012
1. Amir Uddin Barbhuyan.
2. Safique Uddin @ Safiqur.
Presently lodged in the District Jail Hailakandi,
PO-Hailakandi.
......Applicants.
-Versus-
1. The Government of Assam,
represented by the Chief Secretary,
Dispur, Guwahati, Assam.
2. The LR & Secretary to the Govt. of Assam,
Judicial Department, Dispur,
Guwahati-6.
3. The Inspector General of Prisons,
Khanapara, Guwahati, Assam.
4. The Superintendent,
District Jail, Hailakandi.
......Respondents.
Advocate(s) for the Applicants :
Mr. P. Bora, Amicus Curiae.
Advocate(s) for the Respondents :
Mrs. B. Goyal, PP.
BEFORE
THE HON'BLE MR. JUSTICE B.P. KATAKEY
THE HON'BLE MR. JUSTICE C.R. SARMA
Dates of Hearing : 22.08.2012
Date of Judgment & Order : 3rd September, 2012
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JUDGMENT AND ORDER (CAV)
[Katakey, J.]
This writ petition is registered on the basis of the application dated 17.06.2012 addressed to the Hon'ble Chief Justice by two convicts lodged in Hailakandi District Jail, who had been convicted in Sessions Case Nos.20/2000 and 21/2000, praying for passing an order under Section 427 of the Criminal Procedure Code directing concurrent running of the sentence of imprisonment in Sessions Case No.21/2000 with the sentence imposed in Sessions Case No.20/2000.
2. The applicants were charged under Section 436/149 IPC in Sessions Case No.20/2000 for causing mischief to an extent of Rs.2,00,000/- by setting fire into the dwelling house of the informant in village Harishnagar Part-III under Katlicherra Police Station on the midnight of 12.12.1997, where all the household belonging including the paddy and some live-stocks like hens, goats etc. were burnt into ashes. On the basis of such allegation initially Katlicherra P.S. Case No.227/1997 was registered and upon completion of the investigation Charge-sheet dated 22.08.1998 was filed against 14 accused persons. The case was committed to the Court of Sessions for trial on 27.01.2000 and accordingly the charges against all the 14 accused persons were framed. The learned Sessions Judge, on conclusion of the trial, found all the accused persons, including the applicants, guilty of charge under Section 436/149 IPC vide judgment dated 06.03.2003 and sentenced them to under rigorous imprisonment for 10 years and to pay WP(C)[Taken Up] 3193/2012 Page 2 of 2 a find of Rs.5,000/- each, in default, to undergo rigorous imprisonment for a further period of 6 months, vide order dated 07.03.2003.
3. Prior to the occurrence of 12.12.1997, another F.I.R. was lodged on 10.05.1994, on the basis of which Katlicherra P.S. Case No.77/1994 under Section 147/148/149/ 325/326/307 IPC, alleging that on that date i.e. on 10.05.1994 at about 8 A.M. while the informant along with his father, uncle and brothers were ploughing on their field, 21 accused persons, including the applicants, being armed with dao, lathi, sphere and forming an unlawful assembly with common object of taking forcible possession committed riot trespassing into their land and assaulted them with the weapons, as a result of which the informant's father, uncle, brothers and grandmother sustained severe injuries on their persons. One of the injured, namely, Mainul Haque, the brother of the informant, however, died in the Silchar Medical College and Hospital on 16.05.1994 due to the head injury received by him and hence on the prayer of the investigating officer Section 302 IPC was added in the case. The investigating officer on completion of the investigation filed the charge-sheet on 23.02.1997 against 16 accused persons, including the applicants, under Section 147/148/149/325/447/302 IPC. The case was committed to the Court of Sessions on 27.01.2000 and accordingly Sessions Case No.21/2000 was registered against all the accused persons under Section 148/323/325/302 read with Section 149 IPC on 18.02.2000. The learned Sessions Judge on the basis of the evidences adduced has found the applicants and 6 others guilty and convicted them under Section 148/323/325/302 read with Section 149 IPC vide WP(C)[Taken Up] 3193/2012 Page 3 of 3 judgment dated 09.09.2003 and sentenced them to undergo rigorous imprisonment for 2 years and to pay a find of Rs.1,000/- each, in default, to under rigorous imprisonment for another term of 3 months, for the offence constituting under Section 148/149 IPC; to undergo rigorous imprisonment for 6 months and to pay a find of Rs.500/- each, in default, to undergo rigorous imprisonment for another period of 2 months for the conviction under Section 323/149 IPC; to undergo rigorous imprisonment for 3 years and to pay a find of Rs.1,000/- each, in default, to undergo rigorous imprisonment for another period of 3 months, for the offence committed under Section 325/149 IPC and to undergo imprisonment for life and to pay a find of Rs.5,000/- each, in default, to undergo rigorous imprisonment for another period of 6 months for the offence committed under Section 302/149 IPC. The learned Sessions Judge has also set off the period of detention of the accused persons in custody during investigation and trial under Section 428 IPC and directs that the sentences will run concurrently.
4. The learned Sessions Judge while convicting the accused persons, took note of their conviction in Sessions Case No.20/2000 and had also refused to give the benefit of Section 360 Cr.P.C. or any other analogous provisions of law, as they were found to be desperate and of daredevil character as well as their conduct coupled with previous enmity, grudge etc. and the commission of the offence in a planned manner by observing that they should be dealt with sternly to stop repeatation of such incidents.
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5. The accused persons filed two criminal appeals being Crl.A. Nos.178/2003 and 371/2003 challenging their conviction in Sessions Case Nos.20/2000 and 21/2000, respectively. Criminal Appeal No.178/2003 was heard on 29.11.2007 by a Single Bench of this Court, who vide judgment dated 29.02.2008 dismissed the same by upholding the conviction and sentence recorded by the learned Sessions Judge. Criminal Appeal No.371/2003 was heard by a Division Bench of this Court on 23.01.2009. Vide judgment dated 07.04.2009 the said appeal was partly allowed by altering their conviction of the applicants from Section 302 to Section 304 Part-II, while maintaining their conviction under Section 148/149/323/325 IPC. They were accordingly sentenced to undergo rigorous imprisonment for 8 years for their offence committed under Section 304 Part-II IPC read with Section 149 IPC and to pay a find of Rs.1,000/- each, in default, to undergo rigorous imprisonment for another period of 1(one) month. They were also sentenced to undergo imprisonment for 6 months and to pay a find of Rs.500/- each, in default, to undergo further imprisonment for 15 days for the offence committed by them under Section 323/325 read with Section 148 IPC. All the sentences were directed to run concurrently. The period already served has also been directed to set off from the sentence awarded.
6. The applicants, as noticed above, who were convicted both in Sessions Case Nos.20/2000 and 21/2000 and undergoing their sentence of imprisonment, have filed the present application addressed to the Hon'ble Chief Justice, praying for directing concurrent running of WP(C)[Taken Up] 3193/2012 Page 5 of 5 the sentence of imprisonment in Sessions Case No.21/2000 with the sentence imposed in Sessions Case No.20/2000.
7. Since the applicants are not represented, Shri P. Bora, learned advocate has been appointed as amicus curiae, who has rendered his valuable service to the cause of dispensation of justice. We have also heard Ms. B. Goyal, learned Public Prosecutor, Assam.
8. Mr. Bora, learned amicus curiae referring to the provisions of Section 427 Cr.P.C., has submitted that though when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to undergo imprisonment for any term, such imprisonment generally commence at the expiration of the imprisonment to which he has been previously sentenced, as the power has been conferred on the Court to direct concurrent running of the subsequent sentence with the previous sentence, the Court sentencing such person, who is already undergoing the imprisonment, on subsequent conviction to imprisonment is required to consider and pass necessary order as to whether the order under Section 427 Cr.P.C. for running the subsequent sentence concurrently with the previous sentence should be passed or not. In the instant case, according to the learned amicus curiae, such consideration has not been made by the learned Sessions Judge as well as by the High Court in the criminal appeals, for which the applicants have filed the application for passing necessary order by invoking the jurisdiction under Section 427 Cr.P.C. The learned amicus curiae referring to the facts involved in the WP(C)[Taken Up] 3193/2012 Page 6 of 6 aforesaid sessions cases, has submitted that since both the offences relate to same family, having regard to the object for which Section 427 Cr.P.C. has been enacted, direction may be issued for running the subsequent sentence in Sessions Case No.21/2000 concurrently with the previous sentence in Sessions Case No.20/2000. The learned amicus curiae referring to the Apex Court judgment in State of Punjab Vs. Madan Lal reported in (2009)5 SCC 238 has also submitted that such power can be invoked by the High Court in exercise of the power under Section 482 read with Section 427 Cr.P.C.
9. The learned Public Prosecutor, on the other hand, has submitted that as there were two distinct and different incidents, which constitute two offences under the Indian Penal Code, the power under Section 427 Cr.P.C. cannot be invoked by the Court to direct concurrent running of the sentence. It has also been submitted that while convicting the applicants in Sessions Case No.21/2000, the learned Sessions Judge had in mind their conviction in Sessions Case No.20/2000, which is evident from the judgment of conviction recorded by the learned Sessions Judge in Sessions Case No.21/2000. It has also been submitted that the learned Sessions Judge has in his judgment passed in Sessions Case No.21/2000 given the reason why the applicants should be dealt with sternly and should not given the benefit of Section 360 Cr.P.C. or any other enactment in this regard and hence according to the learned Public Prosecutor the learned Sessions Judge has given the reason for not invoking the power to direct concurrent running of the subsequent sentence in Sessions Case No.21/2000 with WP(C)[Taken Up] 3193/2012 Page 7 of 7 the previous sentence in Sessions Case No.20/2000, though the High Court while deciding the aforesaid criminal appeals did not mention anything relating to exercise of the jurisdiction under Section 427 Cr.P.C. The learned Public Prosecutor in support of her contention has placed reliance in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad & anr. reported in (1998)4 SCC 183. Ms. Goyal, learned Public Prosecutor placing reliance on another decision of the Apex Court in M.R. Kudva Vs. State of A.P. reported in (2007)2 SCC 772, has also submitted that since the learned Sessions Judge, for the reasons recorded, did not invoke the provisions of Section 427 Cr.P.C. and the said jurisdiction has also not been invoked by the High Court in the appeals, the present application filed by the applicants for invoking the said power is not maintainable.
10. We have considered the submissions of the learned amicus curiae as well as the learned Public Prosecutor. We have also perused the records of Criminal Appeal Nos.178/2003 and 371/2003, apart from the judgments and orders of conviction dated 06.03.2003 and 09.09.2003 passed by the learned Sessions Judge, Hailakandi in Sessions Case Nos.20/2000 and 21/2000, respectively.
11. As discussed above, the applicants were convicted under Section 436 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- each, in default, to suffer further period of imprisonment for 6 months, WP(C)[Taken Up] 3193/2012 Page 8 of 8 in Sessions Case No.20/2000, as they were found guilty for commission of said offences on the night of 12.12.1997 between the 12 midnight and 1.00 A.M., for setting the house of the informant on fire, thereby causing complete damage to the house including household goods and live-stocks kept therein. In Sessions Case No.21/2000 they were initially convicted under Section 148/149/323/325/302 IPC, which was, however, subsequently converted to 148/149/323/325/304 Part-II IPC by the High Court in the appeals, for the offence committed on 10.05.1994 i.e. about 3½ years before the date of commission of the offence in earlier Sessions case. In the subsequent case, the applicants were convicted for unlawful assembly, trespass armed with deadly weapons, inflicting injuries on the persons, which results in the death of Mainul Haque. Though the informant party, in both the cases is same, both the offences, however, were committed by the applicants and others on two different dates i.e. one on the night of 12.12.1997 and the other on 10.05.1994. The conviction of the applicants is not based on the single incident either under different enactment or for different offences in the same transaction but on two distinct and different facts constituting two different sets of offences on two different dates.
12. Section 427 Cr.P.C. provides the principle of sentencing an offender, who is undergoing a sentence of imprisonment. For better appreciation, Section 427 Cr.P.C. is reproduced below in its entirety:-
"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 WP(C)[Taken Up] 3193/2012 Page 9 of 9 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.
(2) When a person already undergoing 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."
13. While sub-section (2) of Section 427 Cr.P.C. provides that when a person already undergoing 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, sub-section (1) of Section 427, however, provides that the subsequent sentence of a person undergoing a sentence of imprisonment, unless of course the previous sentence of imprisonment is not the imprisonment for life, shall run consecutively, i.e. the subsequent sentence shall commence at the expiration of the imprisonment to which such person has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Hence if a person is already undergoing a sentence of imprisonment for life, his subsequent conviction to imprisonment, which may be for any term or for imprisonment for life, shall have to run concurrently with the previous sentence for which the Court's order is not necessary. On the reverse situation i.e. if a person is undergoing a sentence of imprisonment, but not the imprisonment for life, and he has been subsequently convicted to imprisonment for any term or imprisonment for life, to run the WP(C)[Taken Up] 3193/2012 Page 10 of 10 subsequent sentence concurrently with the previous sentence, there must be an order of the Court to that effect.
14. The Apex Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra) has opined that since Section 427 Cr.P.C. relates to administration of criminal justice and provides procedure for sentencing, the sentencing Court is required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run i.e. whether it should be concurrent or consecutive. It has also been opined that the basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences and if a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences and in that case it is proper and legitimate to have concurrent sentences. The Apex Court, however, has opined that the single transaction rule will have no application if the transaction relating to the offences is not the same or the facts constituting the two offences are quite different.
15. In M.R. Kudva (supra) the Apex Court has opined that when the trial court taking note of the previous conviction of the person has refused to pass an order for concurrent running of two sentences under Section 427 Cr.P.C., which was also not prayed for before the High Court as well as before the Apex Court, subsequent petition under Section 482 read with Section 427 Cr.P.C. is not maintainable. The Apex Court while rejecting such prayer, has also reiterated its earlier decision in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra), WP(C)[Taken Up] 3193/2012 Page 11 of 11 when the order for concurrent running of the sentence is to be made under Section 427 Cr.P.C.
16. In the instant case, as discussed above, the conviction of the applicants in Sessions Case Nos.20/2000 and 21/2000 are based on two completely different facts and transactions, one conviction for the offence committed on the night of 12.12.1997 and the other on 10.05.1994, though the informant party was the same. The learned Sessions Judge, while passing the judgment of conviction in Sessions Case No.21/2000 had also the notice their conviction in Sessions Case No.20/2000, which is evident from the judgment passed in Sessions Case No.21/2000. The learned Sessions Judge has also given the reason why the stern action is required to be taken against the applicants and other convicts, in his judgment passed in Sessions Case No.21/2000. The learned Sessions Judge though in so many words did not say that the order under Section 427 Cr.P.C. for concurrent running of the sentence cannot be passed, having in mind the facts involved in both the cases, from the observation made in the judgment passed in Sessions Case No.21/2000, as discussed, it is evident that the learned Sessions Judge, who had the notice of previous conviction of the applicants, virtually refused to pass an order under Section 427 Cr.P.C. The applicants also though filed two criminal appeals being Crl.A. Nos.178/2003 and 371/2003 in High Court, had never prayed for an order under Section 427 Cr.P.C.
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17. Having regard to the conviction of the applicants on two distinct and different sets of facts constituting two distinct and different offences committed on two different dates and also the fact that the learned Sessions Judge despite having notice of the applicants' conviction in Sessions Case No.20/2000 did not pass an order under Section 427 Cr.P.C., we are of the opinion that the applicants are not entitled to an order under Section 427 Cr.P.C.
18. Hence the application of the applicants is dismissed.
19. Before parting we place on record our appreciation to the assistance rendered by Mr. P. Bora, learned amicus curiae, as well as by Ms. B. Goyal, learned Public Prosecutor. The learned amicus curiae shall be paid Rs.5,000/- towards his fee for rendering his valuable service in assisting the Court.
JUDGE JUDGE
Roy
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