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High Court of Judicature at Bombay
S.C. DHARMADHIKARI & S.B. SHUKRE, JJ.
Abidkhan @ Salman Mukhtar Khan Pathan
Versus
State of Maharashtra & Another
Criminal Writ Petition No.1437 of 2013
Decided On : 22-07-2013
It is obvious that sub-section (1) of Section 427 confers power upon the Court to order concurrent running of subsequent sentence with the previous sentence of imprisonment for a term and this power being discretionary in nature, has to be exercised prudently in appropriate cases. So, when the power exists, it becomes a part of public duty of the Court to apply its mind to the question of exercise of the power one way or the other.
Performance of such a public duty becomes all the more necessary when there is a specific prayer made in that regard or the circumstances peculiar to that case demand it. In the instant case, the circumstances of the case, position of the petitioner and his prayer made before appellate Court required both Courts below to perform the public duty. But unfortunately that was not so. It may be stressed here that there were certain circumstances which could not have escaped attention of any prudent and diligent Court. The petitioner was already in custody when he had pleaded guilty before the trial Court and the trial Court, as it appears from the impugned judgments, had not even offered any legal aid to the petitioner. The petitioner had no way to know that sentences in all cases might run consecutively.
In these circumstances, it fell upon the Metropolitan Magistrate to be particular in applying his mind to the necessity of making the subsequent sentences run concurrently with the previous sentences or otherwise. The fact that the judgments and orders of the convictions and sentences in three cases were delivered on the same day of 11th June, 2012 could not have been the ground for non-exercise of such a power, for, they were so delivered one after another separately and, therefore, it could not have been said that none of them could be considered as either previous or subsequent convictions and sentences.
It is well settled rule of criminal jurisprudence that when a person is convicted and sentenced to suffer imprisonment, the sentence of imprisonment commences immediately-upon its pronouncement by the Court unless otherwise directed. It is nobody‘s case that after the first batch of sentences in Criminal Case No. 664/ PW/2011 came out, the operation of the sentences was stayed and the petitioner was directed to be released on bail. Therefore, the order of sentences passed in the first case has to be taken as the one of previous sentences in relation to orders of sentences passed in Criminal Case Nos. 665/PW/2011 and 666/PW/2011. Therefore, Section 427 power ought to have been considered by the Magistrate for its appropriate exercise in the present case.
Criminal Procedure Code, 1973 - Section 427 - Concurrent sentence. - Where petitioner was convicted and sentenced in three distinct cases on same day therefore all sentences directed to run concurrently.
Criminal Procedure Code, 1973 - Section 427 - Concurrent sentence. - Where petitioner was convicted in three distinct cases on same day on pleading guilty voluntarily therefore all sentences passed in three distinct cases directed to run concurrently.
Criminal Procedure Code, 1973 - Sections 427 and 482 - Constitution of India, Article 226 - Concurrent sentence. - Where Courts below failed to exercise its discretion under Section 427(1) of CrPC therefore High Court can invoke its power either under Article 226 of Constitution or under Section 482 of CrPC. - Counsel for the petitioner is right when he submits that both the Courts below ought to have given to the petitioner the benefit of discretionary power under sub-section (1) of Section 427 of Code of Criminal Procedure. For these very reasons, Court does not find substance in the arguments of A.P.P. for the State canvassed in this regard.
S.B. Shukre, J.
1. In this Petition, the petitioner seeks direction to modify the orders of his sentences given on conviction in three distinct and separate cases so that the sentences in subsequent cases are made to run concurrently along with the previous sentences.
2. This petition has been heard finally at the stage of admission with the consent of the parties. Hence, Rule, returnable forthwith. Respondents waive service.
3. The petitioner No.1 was original accused No.1 in three Criminal Cases bearing C.C. Nos.664/PW/2011, C.C. No.665/PW/2011 and C.C. No.666/PW/2011. He was prosecuted in all these cases along with six other accused for offences punishable under Sections 379, 465, 467, 468, 469, 471, 420 read with 34 of the Indian Penal Code. In all these cases, the offences involved were identical, but, the incidents were of three different dates namely, 25th November, 2010, 5th January, 2011 and 29th August, 2009, all relating to different transactions. When this petitioner and other accused persons were charged with these offences, they pleaded not guilty and claimed to be tried. Lateron, the petitioner and all other accused persons, on 11th June, 2012, upon their production before the trial Court, expressed their desire to plead guilty and accordingly, they pleaded guilty voluntarily to all the offences with which they were charged.
4. Since, we are in this petition, concerned only with the petitioner, we would now confine ourselves to the facts relevant to the case of the present petitioner only. The petitioner submitted before the trial Court that he hailed from a poor family and his family members being dependent upon him, prayed for leniency in the matter of awarding of sentences to him. Considering the overall facts and the submissions of the petitioner, the learned Metropolitan Magistrate, Mumbai by his three separate orders passed on the same day, i.e. 11th June, 2012, convicted the petitioner, so also accused Nos.3, 4, 5 & 6 for all the offences and awarded separate sentences to them. The learned Magistrate, however, directed the sentences to run concurrently only for offences within individual cases and not for all offences in all the three cases, although, he gave the benefit of set off as per the provisions of Section 428 of the Criminal Procedure Code. The sentences in all the three cases were identical for each of the counts of the offences involved therein. A summary of these sentences identically passed in three different cases against the petitioner is as follows:-
a. U/sec. 379 r/w 34, 120(B) of IPC to suffer S.I. for 1 year 3 months.
b. U/sec. 465 r/w 34, 120(B) of IPC to suffer S.I. for 1 year.
c. U/sec. 467 r/w 34, 120(B) of IPC to suffer S.I. for 1 year 9 months.
d. U/sec. 468 r/w 34, 120(B) of IPC to suffer S.I. for 1 year.
e. U/sec. 471 r/w 34, 120(B) of IPC to suffer S.I. for 1 year.
f. U/sec. 420 r/w 34, 120(B) of IPC to suffer S.I. for 1 year. Not satisfied, the petitioner challenged the nature of the sentences awarded to him by the trial Court by filing three appeals before the Sessions Court for Greater Mumbai, at Mumbai. The appeals, however, after hearing both sides, were dismissed by the learned Additional Sessions Judge for Greater Mumbai, by her three separate orders passed on the same day i.e. 7th March, 2013. The learned Additional Sessions Judge found that there was no provision under the Code of Criminal Procedure permitting different sentences passed in different cases to run concurrently and that the petitioner having been convicted in three cases, was, in her opinion, a habitual offender. Being aggrieved by these orders of the trial Court and the first Appellate Court, the petitioner has filed the present writ petition seeking interference of this Court in order to make the sentences passed in two subsequent cases run concurrently along with the sentences passed in the previous case.
5. We have heard learned counsel for the petitioner and learned A.P.P. for the State and
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