Rajasthan High Court - Jodhpur
Anil @ Leelu vs State on 5 May, 2018
Author: Vijay Bishnoi
Bench: Vijay Bishnoi
1
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.CRIMINAL MISC(PET.) NO.3340/2017
Anil @ Leelu s/o Shri Om Prakash, By caste Mali,
Resident of Near Halwas Gate, Bhiwani At present
Dayal Singh Colony, Hansi, Haryana
[Lodged in Central Jail, Bikaner]
----Petitioner
Versus
State of Rajasthan
-----Respondent
____________________________________________
For Petitioner(s) : Ms Laxmi Ramawat
For Respondent(s) : M.S.Panwar - PP
____________________________________________
HON'BLE MR JUSTICE VIJAY BISHNOI
ORDER
05/05/2018 This criminal misc. petition under section 482 CrPC has been preferred on behalf of the petitioner with a prayer that the sentences awarded to him in 3 different cases for the offences punishable under sections 457 and 380 IPC, details of which are being provided in later part of this order, may be ordered to run concurrently.
2
The facts necessary for disposal of the present misc. petition are that the petitioner was tried, convicted and sentenced by the Additional Chief Judicial Magistrate No.3, Bikaner (for short 'the trial court' hereinafter) for the offence punishable under Sections 457 and 380 IPC, details of which are given hereunder:
S. Case No. Court Date of Sentence default Appeal No decision
1. 924/12 ACJM No. 3, 1.08.2013 457,380 of IPC 5 Session (sentence Bikaner years SI Penalty 2000 Judge, complete) in default of penalty of Bikaner six months Appeal No. 148/13 Decision 18.12.13, Appellate Court Sentence 4 years
2. 926/12 ACJM No. 3, 3.12.13 457,380 of IPC 5 Session Bikaner years SI Penalty 3000 Judge, in default of penalty of Bikaner six months Appeal No. 2/14 Decision 19.6.14 Appeallate Court Sentence 4 years
3. 927/12 ACJM No. 3, 15.2.14 457,380 of IPC 5 No appeal Bikaner years SI Penalty 3000 filed in default of penalty of six months The petitioner was indulged in commission of theft and after filing of the complaints, FIRs were lodged against him at various police stations of Bikaner District and police after thorough investigation into the allegations levelled in the said FIRs, filed charge-sheets before the 3 concerned court and after completion of trial, the concerned court convicted and sentenced the petitioner as aforesaid.
Learned counsel for the petitioner has contended that as the sentences awarded to the petitioner are in 3 different cases, he is being made to suffer sentences one after another (consecutively), therefore, the present petition has been preferred by the petitioner with a prayer that a direction needs to be issued that the petitioner's sentences should run concurrently.
It is argued that going by the sentence calculation, which has been awarded to the petitioner would effectively mean that the total length of sentences in aggregate would be around 13 years.
As per the letter of the Superintendent, Central Jail, Bikaner dated 17.7.2017, learned counsel for the petitioner has submitted that the petitioner had already served the total sentence awarded in Cr. Case No.924/2012 and now he is undergoing sentence in Cr.Case No.926/2012 and till 30.04.2018, he has served 3 years, 1 month and 8 days in the said Cr. Case. Thus the petitioner has served more than 7 years out of total sentence of 13 years. It is further argued that though the petitioner was awarded aforesaid sentences in different cases but all the cases are of similar nature. It is also averred that the maximum sentence in respect of present kind of offence is 5 years' simple imprisonment and if all the sentences are 4 allowed to run consecutively petitioner would remain behind the bars up to year 2025.
Learned counsel for the petitioner has placed reliance on decision of this Court dated 17.02.2017 rendered in Rajender vs. State of Rajasthan, S.B.Cr.Misc. (Pet.) No.2883/2014.
Learned Public Prosecutor has opposed the prayer of the petitioner for concurrent running of all the sentences awarded to him in 3 different cases by the trial courts for the offence punishable under sections 457 and 380 IPC and prayed for dismissal of this criminal misc. petition.
Learned Public Prosecutor has placed reliance on decision of Division Bench of this Court rendered in Shimbhu Singh vs. State of Rajasthan, reported in (2016) 1 CriLR 467 and argued that as per the said decision passed by the Division Bench, a petition under Section 482 CrPC filed by the petitioner with a prayer for ordering that the sentences awarded in different cases be directed to run concurrently, is liable to be dismissed.
Heard learned counsel for the parties.
This Court in Rajender vs. State of Rajasthan (supra) has held as under:
"Section 427 CrPC is relevant in the context, which reads as under:5
"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."
As per sub-section (1) of section 427 CrPC when 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:
As per second proviso to sub-section (1) of section 427 CrPC where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, 6 whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
Sub-section (2) of section 427 CrPC provides that 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.
From the above, it can be gathered that the intention of legislature is that even the life convicts have been held entitled to benefit of subsequent sentence, being run concurrently, be it life term or of any lesser term then the different yardstick cannot be applied for those persons, who have been awarded sentence of lesser duration than life unless there are compelling reasons to do so. In this case, I do not see any compelling reason to order that all the sentences awarded to the petitioner in all cases would run consecutively."
It is noticed that all the complaints against the petitioner for commission of offences punishable under Sections 457 and 380 IPC were filed in the years running from 2011 to 2013, wherein, similar allegations of theft were levelled by the complainants against the petitioner.
In all the 3 cases filed against the petitioner, he has been convicted for the offences punishable under Section 457 and 380 IPC and has been sentenced as 7 aforesaid. The maximum sentence awarded to the petitioner is 5 years' simple imprisonment along with fine.
The substantive sentences awarded to the petitioner in all the 3 cases, if calculated jointly, come to 13 years and as per information supplied by the Deputy Superintendent, Central Jail, Bikaner vide letter dated 17.07.2017 sent to G.A. Office, the petitioner has already served more than seven years' sentence till 30.4.2018.
Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and in view of the decision of this Court rendered in Rajender vs. State of Rajasthan (supra), I am of the considered view that ends of justice would be met if the petitioner is granted benefit of section 427 of the CrPC and in my opinion, it would not be inconsistent with the administration of criminal justice.
In Shimbhu Singh vs. State of Rajasthan (supra), a petition under section 482 CrPC was filed after the decision of the High Court in the criminal appeal and, therefore, the Division Bench has held that after final decision in the appeal, the petition under section 482 CrPC with a prayer for issuing directions to run different sentences concurrently is not maintainable as this Court has become functus officio. However, in the present case, no revision is filed by the petitioner against the judgment of 8 the appellate court, whereby the sentences awarded to him by the trial court has been affirmed. As such, the above referred judgment has no applicability in the present case.
In such circumstances, the present misc. petition is allowed and it is ordered that the substantive sentences awarded to the petitioner in the above referred 3 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively. Needless to say, if the petitioner pays the fine/compensation now, he is not required to undergo default sentences (sentences awarded by the trial courts in default of payment of fine/compensation).
[VIJAY BISHNOI],J.
m.asif/PS