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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
Sunil B. Shukre, S.M. Modak, JJ.
Akash Rashtrapal Deshpande – Appellant
Versus
State of Maharashtra – Respondent
Criminal Writ Petition No. 1036 of 2018
Decided On : 15-02-2019
Criminal Procedure Code,1973 – Sections 30 and 427 - Indian Penal Code,1860 - Sections 64 and 392 – Contingency –Appeal Against Conviction - Petitioners being convicted in different robbery cases by Magistrate Courts are praying for direction to run their sentences concurrently - Petitioner Nos. 1 & 2 both were tried jointly and convicted in all seven cases whereas petitioner No. 1 was tried individually in one case - Both were tried in four cases by Chief Judicial Magistrate whereas in two cases, both were tried together by Judicial Magistrate First Class and in one case petitioner No. 1 was tried by Judicial Magistrate First Class - For better understanding details of these cases - Held, No doubt there is onerous responsibility on constitutional Courts to protect right of citizen pending trial and post trial - This Court come across various petitions of convicted accused persons dealing with their rights of release till completion of their sentence - It includes furlough parole remission premature release - This Court is required to deal with these issues from broader perspective - There is a shift in focus to deal with rights of convicted accused persons - They still continue to be human being - Focus is to give their opportunity to meet relatives and to breathe fresh air - That is how theory of reformation plays a dominant role – So Court have looked to this issue from this angle - Writ petition is allowed
S.M. Modak, J.
1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties finally by consent.
2. The issue involved in this petition is about running of sentences of imprisonment inflicted on these two petitioners. There is a general rule to run the sentences consecutively. But, the Court has got power to direct the sentences to run concurrently.
3. Both these petitioners being convicted in different robbery cases by Magistrate Courts are praying for direction to run their sentences concurrently. Petitioner Nos. 1 & 2 both were tried jointly and convicted in all seven cases, whereas, petitioner No. 1 was tried individually in one case. Both were tried in four cases by the Chief Judicial Magistrate, Bhandara, whereas in two cases, both were tried together by the Judicial Magistrate First Class, Tumsar and in one case, petitioner No. 1 was tried by the Judicial Magistrate First Class, Tumsar. For better understanding, the details of these cases are given below in the mentioned chart:
| S. No. | Court's Name | R.C.C. No. | Date of Judgment | Conviction under Section | Punishment | Name of the accused |
| 1. | JMFC, Tumsar | 125/2016 | 15.11.2017 | 392 IPC | R.I. for 3 Yrs. with fine Rs. 5000/- I/d S.I. for 6 months | Akash Deshpande |
| 2. | JMFC, Tumsar | 25/2017 | 15.11.2017 | 392 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 5000/- each I/d S.I. for 6 months | Nikunj Sadhawani Akash Deshpande |
| 3. | JMFC, Tumsar | 26/2017 | 15.11.2017 | 392 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 5000/- each I/d S.I. for 6 months | Nikunj Sadhawani Akash Deshpande |
| 4. | CJM, Bhandara | 31/2017 | 03.05.2018 | 392 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 10000/- each I/d R.I. for 3 months | Nikunj Sadhawani Akash Deshpande |
| 5. | CJM, Bhandara | 33/2017 | 05.05.2018 | 392 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 10000/- each I/d R.I. for 3 months | Nikunj Sadhawani Akash Deshpande |
| 6. | CJM, Bhandara | 34/2017 | 03.05.2018 | 392 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 10000/- each I/d R.I. for 3 months | Nikunj Sadhawani Akash Deshpande |
| 7. | CJM, Bhandara | 35/2017 | 04.05.2018 | 393 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 10000/- each I/d R.I. for 3 months | Nikunj Sadhawani Akash Deshpande |
| 8. | CJM, Bhandara | 36/2017 | 04.05.2018 | 392 R/W 34 IPC | R.I. for 3 Yrs. with fine Rs. 10000/- each I/d R.I. for 3 months | Nikunj Sadhawani Akash Deshpande |
4. The petitioners heavily relied upon the provisions of Section 427 of the Code of Criminal Procedure. They also relied upon the judgment in case of Abidkhan @ Salman Mukhtar Khan Pathan vs. State of Maharashtra, (2014) AllMR (Cri) 1719, whereas the State insisted on consecutive running of sentences in view of charge-sheets arising out of different incidents, time, places and victims.
PROVISIONS OF SECTION 427 OF CR.P.C.
5. Instead of reproducing the section, we are narrating the ingredients of the Section 427(1) as follows:
(a) It presupposes two different sentences imposed in 2 different cases.
(b) Accused is already undergoing sentence.
(c) Accused is sentenced to imprisonment subsequently.
If the above conditions are fulfilled, section further says - Such imprisonment (awarded subsequently) shall commence to operate at the expiration of previous imprisonment.
Apart from laying down the general rule, sub-section (1) also lays down running of such sentences concurrently. Sub-section (1) gives such power to the Court.
6. Admittedly, petitioner No. 1-Akash was convicted by the J.M.F.C. Tumsar singly in one case as well as jointly with petitioner No. 2 Nikunj in two cases. It was on 15.11.2017 (RCC No. 126/2016, RCC No. 25/2017 and RCC No. 26/2017 respectively). Whereas, both were convicted jointly in the month of May, 2018 in four cases by the C.J.M. Bhandara (which is altogether different Court situated away from
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