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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Tarlok Singh Chauhan, Satyen Vaidya, JJ.
Parahlad Kumar Alias Raj Kumar - Appellant
Versus
State Of H P & Ors. - Respondents
C.W.P. No. 1993 of 2019
Decided On : 04-08-2021
Sentencing - Section 427 of the Code of Criminal Procedure, 1973 - The court discussed the application of Section 427 of the Code of Criminal Procedure, 1973, which mandates that 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. The court highlighted 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 court also emphasized that the statutory remedy must be availed before approaching the Constitutional Court.
Fact of the Case:
The petitioner sought to quash and set aside the certificate of imprisonment dated 27.10.2017 and requested the respondent authorities to run the sentences concurrently. The petitioner had been convicted and sentenced in four cases, and was currently undergoing sentence in one of the cases. The substantive sentences passed against the petitioner were to run consecutively, and the petitioner sought relief under Article 226 of the Constitution of India.
Finding of the Court:
The court found that the petitioner had unsuccessfully availed the remedy in accordance with law or had waived his right to avail such remedy. The court held 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.
Issues: The issues involved the application of Section 427 of the Code of Criminal Procedure, 1973, and the petitioner's request for relief under Article 226 of the Constitution of India despite having unsuccessfully availed the statutory remedy.
Ratio Decidendi: The court held that the statutory remedy must be availed before approaching the Constitutional Court, and 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.
Final Decision: The court dismissed the instant petition, stating that there was no merit in the petitioner's claim and that the same was accordingly dismissed. Pending application(s), if any, shall also stand dismissed.
JUDGMENT
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 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. No. | Case No. | Date of Judgment | Sentencing order | Sentence awarded | Sentence served (including remission) | Sentence remaining including default sentence |
1. | FIR No.45/2000 Sessions No.25/2000, P.S. Div. No.01, Pathankot | 10/03/2003 | 11/03/2003 | 10 years, Fine Rs.01 Lakh I/D0 1 year | 10 years | Imprisonment I/d of payment of fine shall be kept in abeyance till the expiration of all the substantive sentences of imprisonment |
2. | FIR No.07/2008, S.T. No.37/2008, P.S. Tissa | 20/11/2008 | 21/11/2008 | 10 years, Fine Rs.01 Lakh I/D 01 years | 08 years | 03 years, including fine sentence, I/D 01 years |
3. | FIR No. 43/2008, S.T No.39/2008, P.S. Sadar Mandi | 21/02/2012 | 21/02/2012 | 02 years RI, Fine Rs.20,000/- I/D 03 months | Yet to be executed | 02 years RI and 03 months I/D of fine |
4. | FIR No. 163/2011, Case No.49- III/2011, P.S. Dharamshala | 26/02/2013 | 28/02/2013 | 06 months RI, Fine Rs.1000/- I/D-01 month | Sentence undergone. | Undergone |
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 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 t
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