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IN THE HIGH COURT OF MADHYA PRADESH
Ravi Malimath, CJ, and Vishal Mishra, J.
Dheeraj @ Dhiru @ Dhuri @ Shahrukh @ Salman v. The State of Madhya Pradesh & Others
Writ Petition No. 5188 of 2023 (Jabalpur); Decided on 20.4.2023
(1) Criminal P.C. 1973 -- S. 427 (1) – concurrent running of sentences – only when exception is made -- trial Court would have to say that sentences would run concurrently -- all sentences shall run consecutively unless Court directs that they shall run concurrently. (2017) 8 SCC 757 followed. [Para 9]
(2) Constitution of India -- Art. 226 -- Criminal P.C. 1973 -- S. 427 (1) -- writ of habeas corpus -- three different convictions and sentences awarded in three different cases -- petitioner contends that sentences awarded in two cases have been suspended by appellate Court therefore custody that he has undergone has to be accounted in third case -- held -- sentences not made to run concurrently -- period spent by him for satisfying order of sentence in other two cases cannot be set off against sentence awarded in subsequent case -- holding that sentences shall run concurrently would amount to interfering with quantum of sentence awarded by trial Court – same can only be done in criminal appeal -- writ Court not entitled to go into entire merits of case and thereafter alter order of sentence -- petition dismissed. (2017) 8 SCC 757, (2013) 7 SCC 211, SLP (Criminal) No. 654 of 2018 decided on 14.10.2019 and (2007) 2 SCC 772 followed. Criminal Appeal No. 2319 of 2022 decided on 16.12.2022 and 2021 SCC Online SC 1183 distinguished. [Paras 12 to 14 & 16]
(3) Constitution of India -- Art. 226/227 -- scope of power -- modification of sentence awarded by trial Court -- not appropriate -- holding that sentences shall run concurrently would amount to interfering with quantum of sentence awarded by trial Court -- same can only be done in criminal appeal -- writ Court not entitled to go into entire merits of case and thereafter alter order of sentence -- this jurisdiction can only be exercised by appellate Court, not by writ Court under Art. 226 or 227. State of Punjab SLP (Criminal) No. 654 of 2018 decided on 14.10.2019 and M.R. Kundva (2007) 2 SCC 772 followed. [Para 14]
¼1½ naM çfØ;k lafgrk] 1973 & èkkjk 427¼1½ & naMkns'k¨a dk lkFk&lkFk pyuk & d¢oy tc viokn fd;k tkrk gS & fopkj.k U;k;ky; d¨ dguk g¨xk fd naMkns'k lkFk&lkFk pysaxs & lÒh naMkns'k ,d&d¢&ckn ,d pysaxs] tc rd fd U;k;ky; funsf'kr ugha djs fd og lkFk&lkFk pysaxsA ¼2017½ 8 ,l lh lh 757 vuqlfjrA ¼iSjk 9½
¼2½ Òkjr dk lafoèkku & vuqPNsn 226 & naM çfØ;k lafgrk] 1973 & èkkjk 427¼1½ & canh çR;{khdj.k fjV & rhu fÒUu çdj.k¨a esa rhu fÒUu n¨"kflf) rFkk naMkns'k vfèkfu.kÊr & ;kph dk ladFku fd n¨ çdj.k¨a esa vfèkfu.kÊr naMkns'k vihy U;k;ky; }kjk fuyafcr dj fn, x, gSa blfy, mlus t¨ vfÒj{kk Ò¨xh gS mldh lax.kuk r`rh; çdj.k esa dh tkuk pkfg, & vfÒfuèkkZfjr & naMkns'k lkFk&lkFk pyus dk vkns'k ugha & mld¢ }kjk vU; n¨ çdj.k¨a d¢ naMkns'k iwjk djus esa O;rhr vofèk ijorÊ çdj.k esa vfèkfu.kÊr naMkns'k d¢ fo#) eqtjk ugha dh tk ldrh & ;g vfÒfuèkkZfjr djuk fd naMkns'k lkFk&lkFk pysaxs] fopkj.k U;k;ky; }kjk vfèkfu.kÊr naMkns'k d¢ ifjek.k esa gLr{ksi djus d¢ leku g¨xk & ,slk nkafMd vihy esa gh fd;k tk ldrk gS & fjV U;k;ky; çdj.k d¢ laiw.kZ xq.kkxq.k ij fopkj djus v©j rRi'pkr~ naMkns'k ifjofrZr djus dk gdnkj ugha & ;kfpdk [kkfjtA ¼2017½ 8 ,l lh lh 757] ¼2013½ 7 ,l lh lh 211] fo'ks"k btktr ;kfpdk ¼nkafMd½ Øekad 654 lu~ 2018 fu.kÊr fnukad 14-10-2019 rFkk ¼2007½ 2 ,l lh lh 772 vuqlfjrA nkafMd vihy Øekad 2319 lu~ 2022 fu.kÊr fnukad 16-12-2022 rFkk 2021 ,l lh lh vkWuykbu ,l lh 1183 çÒsfnrA ¼iSjk 12 ls 14 ,oa 16½
¼3½ Òkjr dk lafoèkku & vuqPNsn 226@227 & 'kfDr dh O;kfIr & fopkj.k U;k;ky; }kjk vfèkfu.kÊr naMkns'k dk mikarj.k & leqfpr ugha & ;g vfÒfuèkkZfjr djuk fd naMkns'k lkFk&lkFk pysaxs] fopkj.k U;k;ky; }kjk vfèkfu.kÊr naMkns'k d¢ ifjek.k esa gLr{ksi djus d¢ leku g¨xk & ,slk nkafMd vihy esa gh fd;k tk ldrk gS & fjV U;k;ky; çdj.k d¢ laiw.kZ xq.kkxq.k ij fopkj djus v©j rRi'pkr~ naMkns'k ifjofrZr djus dk gdnkj ugha & ;g vfèkdkfjrk vihy U;k;ky; }kjk gh ç;qDr dh tk ldrh gS] vuqPNsn 226 ;k 227 d¢ vèkhu fjV U;k;ky; }kjk ughaA fo'ks"k btktr ;kfpdk ¼nkafMd½ Øekad 654 lu~ 2018 fu.kÊr fnukad 14-10-2019 rFkk ¼2007½ 2 ,l lh lh 772 vuqlfjrA ¼iSjk 14½
ORDER
1. The petitioner seeks the following reliefs:-
"a. To issue a writ in the of habeas corpus commanding respondents, to release the petitioner forthwith, since he has already undergone the sentence awarded to him.
b. To call for the relevant records, for kind perusal of this Hon'ble Court.
c. Any other relief's deemed fit on facts and circumstances of the instant case."
2. It is the case of the petitioner that he was convicted for the offence punishable under section 324 of the Indian Penal Code and under section 3(2)(v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in Special Case No.129 of 2016 by the judgment dated 18.1.2019 and sentenced for a period of 3 years R.I. with fine of Rs.1,000/- and 3 years R.I. with fine of Rs.1,000/- respectively. The same was challenged by filing Criminal Appeal No.1670 of 2019. Thereafter by the order dated 24.1.2022 the appeal was dismissed as not pressed.
3. Learned counsel for the petitioner submits that it was dismissed as not pressed since according to the petitioner he has already undergone the sentence awarded by the trial Court. The petitioner was also convicted for the offence punishable under section 394 of the Indian Penal Code in S.T. No.309 of 2017 by the judgment dated 3.7.2018 and sentenced to R.I. for 10 years and fine of Rs.5,000/-. The same was challenged in Criminal Appeal No.6353 of 2018. Thereafter by the order dated 16.9.2021 the sentence was suspended. The petitioner was also convicted for the offence punishable under section 392 of the Indian Penal Code in S.T. No.310 of 2017 by the judgment dated 3.7.2018 and sentenced to R.I. for 7 years with fine of Rs.5,000/-. However, the sentence passed in S.T. No.310 of 2017 was not made to run concurrent with sentence passed in S.T. No.309 of 2017. The judgment and sentence passed in S.T. No.310 of 2017 was challenged in Criminal Appeal No.6355 of 2018. Thereafter by the order dated 29.11.2021 the sentence was suspended.
4. Therefore, it is contended that so far as the sentence awarded in Special Case No.129 of 2016 is concerned, he has already undergone a sentence of 3 years as awarded in the said case. The plea of the petitioner is that in terms of the order dated 18.1.2019 where a sentence of 3 years was awarded, he has already completed the said period as on 18.1.2022. After the withdrawal of Criminal Appeal No.1670 of 2019 on 24.1.2022, he moved the trial Court by filing an application seeking his release on the ground that he has already undergone custody for a period of 3 years as awarded in Special Case No.129 of 2016. The trial Court by the order dated 14.2.2022 sought the information from the jail authorities. Thereafter communication was addressed vide Annexure P-3 indicating that the sentence which he has served is with reference to S.T. No.309 of 2017. Therefore, even though he has undergone custody of 3 years, it is not with reference to the sentence as awarded in Special Case No.129 of 2016. That the period of sentence in the second crime would commence after the period of sentence in first crime has been undergone or suspended. It is also indicated that in terms of calculating such period of custody, he still has to undergo a period of 2 years 7 months and 9 days as on 13.02.2022. Thereafter, the instant petition is filed. Three grounds are raised by the petitioner which reads as follows:-
"a. For that, the act and action of the respondent, is against the law, which cannot be sustained in the eye of law, hence the interference of this Hon'ble Court is warranted.
b. For that, the petitioner has completed his sentence in the case no.129/2016, since, the petitioner is under custody since from the date judgment i.e. 18/01/2019, hence, the non releasing of the petitioner amounts to illegal custody of petitioner and is against the constitutionality, hence interference
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