Himachal Pradesh High Court
Parahlad Kumar Alias Raj Kumar vs State Of H.P And Others on 4 August, 2021
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CWP No. 1993 of 2019
Reserved on: 28.07.2021
Decided on: 04.08.2021
Parahlad Kumar alias Raj Kumar ......Petitioner
.
Versus
State of H.P and others ......Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1 Yes
For the petitioner: Mr. R.L. Chaudhary,
Advocate.
For the respondents: Mr. Ashok Sharma, Advocate
General with Mr. Vinod
Thakur, Mr. Shiv Pal
Manhans, Addl. A.Gs., Mr.
J.S. Guleria and Mr.
Bhupinder Thakur, Dy. A.Gs.
(Through video conferencing)
Satyen Vaidya, J.
Petitioner by way of instant petition, has prayed for the following substantive reliefs:
"(i) That writ of certiorari may kindly be issued, quashing and setting aside the certificate of imprisonment dated 27.10.2017 (Annexure P-5) whereby finding recorded by the Jail Authorities i.e. Respondent No.3 that the sentence of second case will commence after the expiry of sentence of first case. In case the sentences of the petitioner are 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 31/01/2022 22:48:46 :::CIS 2
ordered to run concurrently, w.e.f. 21.11.2008, in that event, the imprisonment of the petitioner will be over on 21.11.2018, but till date, he is in imprisonment of the respondent authorities."
(ii) That writ of mandamus may kindly be issued, directing .
the respondent authorities to run the sentences qua the petitioner concurrently w.e.f. 2011.2008, since w.e.f. 11.03.2003, the petitioner was undergoing the sentence of 10 years rigorous imprisonment in the jail of the respondent authorities imposed by Learned Additional Sessions Judge, Gurdaspur (Punjab) and for the second time, during imprisonment, the petitioner was convicted by Learned Special Judge, Fast Track Court Chamba, District Chamba, H.P. on 20.11.2008 in Sessions Case No. 37/2008 for 10 years rigorous imprisonment and to pay fine of Rs.1,00,000/- and thereafter, the petitioner was convicted on 21.02.2012 by Learned Special Judge, Mandi, H.P. in Session Case No. 39/2018 to undergo 2 years rigorous imprisonment and to pay fine of Rs.20,000/-, in view of the fact that fourth sentence dated 26.02.2013 passed by Learned Chief Judicial Magistrate, Kangra at Dharamshala in Criminal Case No. 49- III/2011, the sentence was ordered to run concurrently, but in Sessions Case No. 37/2008 as well as Sessions Case No.39/2008, there is no such order to run the sentence concurrently."
2. Undisputedly, petitioner has been convicted and sentenced in four cases, details whereof are as under:-
Sr. Case No. Date of Sentencing Sentence Sentence Sentence No. Judgment order awarded served remaining (including including remission) default sentence
1. FIR 10/03/2003 11/03/2003 10 years, 10 years Imprisonment No.45/2000 Fine Rs.01 I/d of Sessions Lakh I/D payment of ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 3 Case 01 year fine shall be No.25/2000, kept in P.S. Div. abeyance till No.01, the expiration Pathankot of all the substantive sentences of imprisonment .
2. FIR 20/11/2008 21/11/2008 10 years, 08 years 03 years, No.07/2008, Fine Rs.01 including fine S.T. Lakh I/D sentence, I/D No.37/2008, 01 years 01 years P.S. Tissa
3. FIR No. 21/02/2012 21/02/2012 02 years RI, Yet to be 02 years RI 43/2008, S.T Fine executed and 03 No.39/2008, Rs.20,000/- months I/D P.S. Sadar I/D 03 of fine Mandi months
4. FIR No. 26/02/2013 28/02/2013 06 months Sentence Undergone 163/2011, RI, Fine undergone.
Case No.49- Rs.1000/-
III/2011, I/D-01
P.S. month
Dharamshala
3. As regards the cases at Serial No. 1 and 2 of the above tabulated form (for short "table"), petitioner remained unsuccessful in both the cases in appeals filed before the High Courts and also Special Leave Petitions filed before the Apex Court. No appeal is stated to have been filed by petitioner in cases at serial numbers 3 and 4 of the table.
4. Presently, petitioner is undergoing sentence in case FIR No. 07/2008, Sessions trial No. 37 of 2008, in which conviction and sentence has been recorded/imposed by learned Special Judge, Chamba vide judgment dated 21.11.2008. Petitioner has already undergone the ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 4 sentence imposed in case detailed at Serial No. 4 of the table, whereas the sentence in case at serial number 3 of the table is yet to commence. The fact of the matter is that in all the above noted cases, except case at Serial No. 4 of .
the table, the substantive sentences passed against the petitioner were to run consecutively.
5. Petitioner has now sought the reliefs as detailed above from this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. In short, his prayer is that the remaining part of his sentences be set off by issuing directions to the effect that the sentence in case at Serial No.2 of the table be treated to run concurrently with the sentence passed in case at Serial No. 1 of the table.
Similarly, the sentence passed in case at Serial No.3 of the table be ordered to run concurrently with the sentence passed against him in case at Serial No. 2 of the table.
6. From the perusal of the details of table, it is evident that the petitioner is yet to serve the remaining substantive sentence in case at Serial No. 2 of the table and thereafter two years rigorous imprisonment in case at Serial No. 3 of the table. In addition, the petitioner is yet to undergo the default sentence in all the cases detailed at Serial Nos. 1 to 3 of the table.
::: Downloaded on - 31/01/2022 22:48:46 :::CIS 57. The provision with respect to sentencing of an offender already sentenced for another offence is contained in Section 427 of the Code of Criminal Procedure, 1973, which reads as under:-
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"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."
8. The case in hand falls under sub-section (1) of Section 427, which mandates that when a person already undergoing 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, however, the only exception that has been carved out is that the subsequent ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 6 sentence shall run concurrently with previous sentence if Court so directs.
9. On facts, there is no dispute that Courts having convicted/sentenced the petitioner in cases at Serial No. 2 .
and 3 of the table did not exercise such jurisdiction in favour of the petitioner as there was no order for the sentence passed in such cases to run concurrently with the sentence passed in previous case. Needless to say, that the Court under Section 427 would include the Appellate as well as Revisional Courts. As noted above, petitioner had assailed the conviction and sentence in case at Serial No. 2 of the table in appeal before the High Court and in Special Leave Petitions before the Apex Court with the same result. In case at Serial No.3, the petitioner did not choose to assail the judgment passed by learned trial Court either in appeal or in any other proceedings.
10. In the given situation, the question arises as to whether the petitioner can be granted the same relief in exercise of jurisdiction under Article 226 of the Constitution, which he had failed to get from the Courts in exercise of their jurisdiction under Section 427(I) of the Code. We have no hesitation to answer this question in negative. This is a case where the petitioner has ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 7 unsuccessfully availed the remedy in accordance with law or has waived his right to avail such remedy. It is trite that when the statutory remedy is available to a person, having availed such remedy, he cannot approach the .
Constitutional Court successfully without proving that the available remedy was not effective or the statutory had not acted in accordance with the provisions of enactment or there was defiance of fundamental right or judicial procedure and natural justice. Reference may be made to Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, 2014(1) SCC 603 in this behalf.
11. The proposition akin to the one in hand was dealt by the Apex Court in M.R. Kudva vs. State of A.P. (2007) 2 SCC 772, with the only difference that the petitioner in that case had approached the High Court under Section 482 Cr.P.C. Paragraph 12 of the judgment reads as under:-
"12. However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal. Section 482 of the Code was, therefore, not an ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 8 appropriate remedy having regard to the fact that neither the Trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted.
.
The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed.
12. A Co-ordinate Bench of this Court in Sushil Kumar alias Shashi vs. State of Himachal Pradesh, 2014 (1) Shim. LC 214 was also confronted with the same proposition, albeit in exercise of powers under Section 482 Cr.P.C of the Code. Placing reliance upon M.R. Kudva's case supra, while dismissing the petition, the Court held as under:-
"14. In the instant case, petitioner Suhsil Kumar was convicted for two offences in separate trials for attempted murder on a person and murdering another person at two different times. Both these transactions were different in time and separate and were also not interconnected with each other. Therefore, we are of the opinion that this Court cannot interfere with the sentences passed in two separate cases, tried and decided separately under its inherent jurisdiction, therefore, the petition is dismissed."
13. Learned counsel for the petitioner has placed reliance on judgment passed by the Apex Court in Vicky @ Vikas vs. State (NCT of Delhi), (2020) 11 SCC 540. With all deference to the above referred judgment, the same ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 9 cannot benefit the cause of the petitioner. The Hon'ble Apex Court in that case has exercised jurisdiction while hearing the appeal against the judgment passed by the High Court of Judicature at Delhi, whereby while .
dismissing the appeal of the appellant, the High Court had also dismissed the application to direct the sentences awarded to him to run concurrently.
14. In V.K. Bansal vs. State of Haryana, (2013) 7 SCC 211, subsequently followed in Benson vs. State of Kerala (2016) 10 SCC 307, it has been held that the discretion to be exercised in directing the sentence to run concurrently would depend upon the nature of the offence/offences and facts and circumstances of each case.
The Hon'ble Supreme Court in these cases had exercised the jurisdiction in favour of convict in the given facts and circumstances of each case by holding that the offences therein were having close proximity or relationship in terms of their nature and transaction etc. The above said discretion cannot be allowed in present case as the offences in all the cases are distinct and of serious nature.
It appears that the petitioner, whenever granted parole, misused the liberty and indulged in serious offences under the NDPS Act. Not only this, petitioner was convicted and ::: Downloaded on - 31/01/2022 22:48:46 :::CIS 10 sentenced to undergo 8 months and 6 months rigorous imprisonment respectively by learned Chief Judicial Magistrate, Gurdaspur (Punjab) under the Punjab Good Conduct Prisoners Act. There is no manner of doubt that .
the petitioner is a habitual offender, that too, of serious offences under the NDPS Act.
15. The hazard of drug abuse is one of the most perilous problems presently being faced by the society. A large number of students and adolescents have succumbed to the addiction of drugs. We feel it necessary to express that the persons like petitioner are responsible for hysterical following of young generation towards drug addiction. Petitioner cannot command any discretion much less any sympathy.
16. In view of the discussion made above, there is no merit in the instant petition and the same is accordingly dismissed. Pending application(s), if any, shall also stand dismissed.
(Tarlok Singh Chauhan)
Judge
August 4th, 2021 (Satyen Vaidya)
(GR/Naveen) Judge
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