Chattisgarh High Court
Dewa @ Taklu Dewar vs State Of Chhattisgarh on 1 April, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRMP No.1452 of 2021
Order Reserved on : 03.02.2022
Order Delivered on : 01.04.2022
Dewa @ Taklu Dewar, S/o Shri Kishore Dewar, Aged About 22 Years,
R/o Ward No.4, Edgahbhatha Mahasamund, Distt. Mahasamund,
Chhattisgarh
---- Petitioner
Versus
1. State of Chhattisgarh Through The District Magistrate, Mahasamund,
Distt. Mahasamund, Chhattisgarh
2. Superintendent of Jail, District Jail Mahasamund, Distt. Mahasamund,
Chhattisgarh
---- Respondents
For Petitioner Mr. Sumit Shrivastava, Advocate For Respondents Mr. Ali Asgar, Dy. AG Hon'ble Justice Smt. Rajani Dubey C A V Order
1. This petition under Section 482 read with Sections 427 & 428 of CrPC has been preferred by the petitioner challenging the order dated 28.10.2021 passed in Criminal Revision No.H-49/2021 passed by the learned Sessions Judge, Mahasamund, whereby the application of the petitioner dated 11.10.2021 has been rejected seeking concurrent running of sentence in 3 different crime numbers. The petitioner also prays for a direction to the respondent authorities that the jail sentence awarded to the petitioner in 3 different crime numbers be calculated 2 concurrently and after completion of 1 year and 2 months jail sentence, the petitioner be released.
2. Brief facts of the case are that the petitioner and others were prosecuted for the offence punishable under Sections 457 & 380 of IPC in 3 different cases registered at Police Station Mahasamund in Crime Nos.298/2020, 300/2020 & 303/2020 and after completion of investigation, charge sheet was filed before the learned CJM, Mahasamund. On the basis of material evidence available in the charge sheet, the charges under Sections 457 & 380 of IPC were framed against the petitioner and other accused persons. On petitioner and other accused persons' admitting the charges levelled against them for the aforesaid offences, learned CJM vide judgment dated 27.08.2021 in Criminal Case No.S - 622/2020, S-623/2020 & S-
624/2020 convicted and sentenced the petitioner and other accused.
For ready reference, conviction of petitioner is as under:-
Sr Accused Name Crime Criminal Date of Conviction and sentence No. Case No. Decision
1. Deva @ Taklu 303/2020 S-623/2020 27.08.2021 For offence For offence Dewar under Section under 457 of IPC, RI Section 380 for one year of IPC, RI and 2 months, for one year fine amount and 2 Rs.500/-, in months, fine default of fine amount amount, Rs.500/-, in additional RI default of for one month fine amount, additional RI for one month
2. Deva @ Taklu 300/2020 S-622/2020 27.08.2021 For offence For offence Dewar under Section under 457 of IPC, RI Section 380 for one year of IPC, RI and 2 months, for one year fine amount and 2 Rs.500/-, in months, fine default of fine amount 3 amount, Rs.500/-, in additional RI default of for one month fine amount, additional RI for one month
3. Deva @ Taklu 298/2020 S-624/2020 27.08.2021 For offence For offence Dewar under Section under 457 of IPC, RI Section 380 for one year of IPC, RI and 2 months, for one year fine amount and 2 Rs.500/-, in months, fine default of fine amount amount, Rs.500/-, in additional RI default of for one month fine amount, additional RI for one month Both the sentences were directed to run concurrently, however, no direction was issued whether both the sentences will also run concurrently in all the 3 aforesaid crime numbers or not.
3. The petitioner is in custody since 29.06.2020 and had already served 268 days jail sentence during trial till 23.03.2021. When the petitioner came to know about the fact that the sentences will run consecutively instead of concurrently, then the petitioner and another accused Semu @ Masum Dewar filed an application before the Jail Superintendent, Mahasamund under Section 427 (2) of CrPC on 29.09.2021 praying that the aforesaid sentences be run concurrently instead of consecutively. The application of the petitioner was dismissed by the Jail Superintendent vide order dated 11.10.2021, against which the petitioner and another accused Semu @ Masum Dewar filed criminal revision before the learned Sessions Judge, Mahasamund bearing Criminal Revision No.H-49/2021 praying that the sentences awarded to the petitioner and other accused be run concurrently in all 3 crime 4 numbers instead of consecutively, which was dismissed by the learned Sessions Judge affirming the order of the learned CJM. Thereafter, the appeal was also preferred by the petitioner before the learned Sessions Judge, Mahasamund challenging the said part of the judgment that the sentence should run concurrently, but the same was dismissed by the learned Session Judge vide order dated 26.11.2021 in Criminal Appeal No.H-72/2021 holding that the appeal is not maintainable, as the judgment of the Trial Court has not been challenged in its entirety and only the part of the judgment has been challenged.
4. Learned counsel for the petitioner submits that as per the provisions of Sections 219 & 427 of CrPC and guideline of the Hon'ble Apex Court, all the sentences are liable to run concurrently. The petitioner is in jail since 29.06.2020 and sentence of one year and 2 months has already completed. He further submits that the Trial Court as well as the Appellate Court have erred in not considering Section 427 of CrPC in its proper perspective, thereby the petitioner is unnecessarily kept behind the bars, which is in violation of Article 21 of the Constitution of India. Therefore, the impugned order is liable to be set aside and direction be issued to the respondent authorities to calculate the jail sentence awarded to the petitioner concurrently and he be released.
Learned counsel has placed reliance on the judgments rendered by the Hon'ble Apex Court in the matters of V. K. Bansal vs State of Haryana and another1 and Mohd. Akhtar Hussain vs Assistant Manager2 and further on the judgment of the Madras High Court in the matter of Sheik Madhar vs The State of Tamilnadu and others 3.
1 (2013) 7 SCC 211 2 AIR 1988 SC 2143 3 Crl OP (MD) No.18030/2019. 5
5. Learned State counsel opposes the prayer made by the petitioner.
6. Heard learned counsel for the parties and perused the material available on record.
7. Sections 427 and 219 of CrPC provides 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.
(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 concurrently with such previous sentence.
219. Three offences of same kind within year may be charged together.--(1) When a person is accused of more offences than one of the same kind committed within the space of twelve months from the first to the last of such offences, whether in respect of the same person or not, he may be charged with, and tried at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount of punishment under the same section of the Indian Penal Code (45 of 1860) or of any special or local laws:
Provided that, for the purposes of this section, an offence punishable under section 379 of the Indian Penal Code (45 of 1860) shall be deemed to be an offence of the same kind as an offence punishable under section 380 of the said Code, and that an offence punishable under any section of the said Code, or of any special or local law, shall be deemed to be an 6 offence of the same kind as an attempt to commit such offence, when such an attempt is an offence."
8. The Hon'ble Apex Court in the matter of Akhtar Hussain (supra) held that Section 427 of CrPC relates to administration of criminal Justice and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive.
9. The similar issue has been considered and decided by the High Court of Madras in the matter of Sheikh Madhar (supra) and it has been held in paras 7 to 13 as under:-
7. The relevant provision is Section 427 (1) of Cr.PC. It reads as under :
"Sentence on offender already sentenced for another offence. 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 :..." Let me now parse the provision and break it into its component parts.
(i) A person is already undergoing a sentence of imprisonment.
(ii) he is sentenced on a subsequent conviction to imprisonment or imprisonment for life.
(iii) such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced.
(iv) unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence.7
The aforesaid provision states that if the sentencing court fails to give a specific direction that the subsequent sentence shall run concurrently with the previous sentence, it would run only consecutively.
8. The question is whenever the sentencing court failed to pass any direction in terms of Section 427 of Cr.Pc, will the effect of consecutiveness kick in automatically ?. A closer reading of the provision would indicate that the condition precedent for the application of Section 427 of Cr.PC is that the person must be already undergoing a sentence of imprisonment when he is convicted on a subsequent occasion and sentenced. The whole issue turns on the expression "already undergoing a sentence of imprisonment".
"Already" means "before a particular time in the past or before now". "Undergoing" means "experiencing something" (Oxford Advanced Learner's Dictionary, New 9th Edition). One cannot be said to be undergoing a sentence of imprisonment unless warrant for its execution had been issued under Section 425 of Cr.Pc and it had taken effect. Only if the convict had been physically detained pursuant to such warrant, he can be said to be undergoing a sentence of imprisonment and not otherwise.
9. Thus, for Section 427 (1) of Cr.Pc to apply, the condition precedent must be that the person convicted and sentenced on the subsequent occasion was already undergoing a sentence of imprisonment in the previous case. If he was not so undergoing a sentence in the previous case, Section 427 (1) will not apply at all. I must emphasize that Section 427 of Cr.PC does not talk of a person already sentenced to a term of imprisonment being sentenced on a subsequent conviction to a term of imprisonment. The legislature has carefully added the words "already undergoing". This is significant. No word occurring in a statutory provision can be ignored. Each expression has to be given its full effect.
10. The expression "undergoing" is also found in Section 426 of Cr.PC dealing with sentence on escaped convict. Only a person undergoing sentence in a prison can escape and that would be an independent offence by itself. Section 428 of Cr.Pc is about setting off the period of detention already undergone by the accused against the sentence of imprisonment.
11. Suppose on a single day, an accused is found guilty in more than one case and sentenced. It is for the court concerned to clarify as to when the sentence in the subsequent case will take effect. If the court is silent on this aspect, the sentences will start running from the 8 date when they were given effect to. Section 427 (1) has prescribed the manner in which the sentence will run. It states that if the court is silent and had not given any direction that the sentence given in the subsequent case will run concurrently, it will run only consecutively. Such an adverse consequence emanating from the silence of the court has a serious implication for personal liberty. The Constitution attaches a very high value to personal liberty. Therefore, such a provision must be construed in a manner that is at once fair, just and reasonable. Only by giving full effect to the expression "already undergoing" such a result can be obtained.
12. The case on hand is a classic proof. The petitioner was accused in five successive but different occurrences. The final reports were taken on file in C.C Nos.296 of 2017 to 300 of 2017 by the learned Judicial Magistrate No.V, Tiruchirappalli. In all the cases, the petitioner pleaded guilty. Judgment of conviction and sentence was imposed in all the cases on a single day ie., 30.01.2018. Even according to the prosecution, the total amount involved is Rs.16,700/-. Both the trial court as well as the appellate court failed to give the direction contemplated in Section 427(1) of Cr.Pc. If Section 427(1) is not understood as interpreted above, the result will be that the petitioner will rot in prison for ten long consecutive years. In my view, it would be a monstrous situation.
13.When the petitioner was convicted and sentenced in C.C No.297 of 2017 on the file of the Judicial Magistrate No.V, Tiruchirappalli, he had already been convicted and sentenced in C.C No.296 of 2017. But then, he had only been convicted and sentenced. He was not undergoing any sentence of imprisonment. The same logic and reason will govern the sentences in the subsequent cases in C.C Nos.298 to 300 of 2017. Therefore, even if no specific direction had been passed that the subsequent sentence shall run concurrently with the previous sentence, in view of the construction now placed on Section 427 of Cr.Pc, they will necessarily run only concurrently. In any event, considering the overall facts and circumstances, I have no hesitation to direct that the sentences imposed on the petitioner will run concurrently."
10. In the case in hand, the judgment of conviction and sentence was passed on a single day i.e. on 27.08.2021 in all 3 crime numbers i.e. Crime Nos.303/2020, 300/2020 & 298/2020 and all the offences are of within the same year i.e. 28.04.2020, 26.05.2020 & 02.05.2020 and in 9 all the cases the petitioner pleaded guilty. The petitioner was sentenced RI for 1 year and 2 months in all three aforesaid crime numbers for the offence punishable under Sections 457 and 380 of IPC and both the sentences were directed to run concurrently, however, no direction was issued as to whether both the offences will also run concurrently in all three crime numbers or not. When the petitioner challenged the said part of the judgment by way of filing application, revision and appeal, the same were dismissed, meaning thereby the petitioner was required to undergo the sentences consecutively in all 3 crime numbers. The petitioner is in jail since 29.06.2020, meaning thereby as on date the petitioner has already undergone more than 21 months jail sentence, whereas he was only required to undergo 14 months jail sentence and if one month's period of default of fine amount is also calculated, then also he was required to undergo only 15 month's jail sentence, thus he has already undergone more than 6 months' jail sentence as on date.
11. Applying the principles laid down by the Supreme Court in the matter of Sheikh Madhar (supra) as well as of the High Court of Madras in the matter of Sheik Madhar (supra) and construing Section 427 (1) of CrPC in its true perspective, it is quite vivid that the judgment of conviction and sentence was passed on a single a day i.e. on 27.08.2021 and previously the petitioner was not convicted for any of the offence and was not undergoing any sentence of imprisonment.
Therefore, even if no specific direction was issued as to whether both sentences under Sections 457 and 380 of IPC will run concurrently in all three crime numbers or not, they shall necessarily run concurrently in all three crime numbers in view of construction now placed on 10 Section 427 (1) of CrPC. Thus, in my considered view, the Trial Court as well as the Appellate Court have completely failed to give direction contemplated in Section 427 (1) of CrPC. Accordingly, the impugned order dated 28.10.2021 is hereby set aside. The petitioner be released forthwith in all 3 crime numbers, if he is not required to be detained in any other offence.
12. The CRMP stands allowed.
Sd/-
Rajani Dubey Judge Nirala