STATE OF GUJARAT v. ZAVERBHAI KABABHAI — 1995 DIGILAW 10 (GUJ)

D. G. KARIA, J. ( 1 ) MR. S. R. Divetia, learned Additional Public Prosecutor, appearing for the petitioner-State requests to convert this application into Criminal revision Application. Request granted. ( 2 ) THE neat question of law that arises in this Criminal Revision Application is whether the respondent, who was already undergoing a sentence of imprisonment, could be sentenced to suffer the imprisonment imposed on a subsequent conviction, concurrently or consecutively. ( 3 ) THE relevant facts giving rise to the petition may be stated thus : the respondent-accused was convicted for the offence under Sec. 376 of the indian Penal Code and was sentenced to undergo rigorous imprisonment for a term of seven years in the Sessions Case No. 29 of 1982 of the Court of the learned assistant Judge, Rajkot at Gondal. Thereafter, the petitioner was also convicted for the offence under Sec. 376 of the Indian Penal Code and other offences of the Indian penal Code in Sessions Case No. 69 of 1982 by the learned Assistant Sessions Judge, rajkot District at Gondal and was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000. 00, in deault to undergo rigorous imprisonment for one year. In the said Sessions Case No. 69 of 1982, the respondentaccused was also convicted for the offences under Sec. 363, 367 and 452 of the indian Penal Code and was sentenced to undergo rigorous imprisonment for one year and two years respectively for the said offences. The respondent was also convicted and sentenced under Sec. 25 of the Indian Arms Act and was sentenced to undergo rigorous imprisonment for six months for the said offences. All these sentences were ordered to run concurrently. The learned Judge had ordered to pay rs. 500/- to the prosecutrix, out of the amount of the fine. It appears that the other three accused persons were acquitted in the said Sessions Case. The learned Assistant Sessions Judge, Rajkot District at Gondal, passed the aforesaid order of conviction and sentence on August 27, 1984. ( 4 ) THE respondent-accused preferred Criminal Appeal No. 35 of 1986 against the aforesaid judgment and order of conviction and sentence rendered in Sessions case No. 69 of 1982 in the Court of the Additional Sessions Judge, Rajkot District at Gondal. By Purshis, Exh. ( 4 ) THE respondent-accused preferred Criminal Appeal No. 35 of 1986 against the aforesaid judgment and order of conviction and sentence rendered in Sessions case No. 69 of 1982 in the Court of the Additional Sessions Judge, Rajkot District at Gondal. By Purshis, Exh. 23, the learned Advocate for the respondent-accused declared that the accused-appellant did not intend to contest the appeal on merits. The only contention that was raised in the appeal was that the sentence imposed on the respondent-accused in the Sessions Case No. 29 of 1982 should be ordered to run concurrently with the sentence imposed on the respondent-accused in Sessions case No. 69 of 1982. It may be mentioned at this stage that the learned Assistant sessions Judge, while passing the judgment in Sessions Case No. 69 of 1982, negatived the contention of the respondent-accused that the sentence imposed in earlier Sessions Case No. 29 of 1982 should run concurrently with the sentence imposed in Sessions Case No. 69 of 1982. The learned Judge has dealt with this aspect in paras 111, 112 and 113 of his judgment. The learned Additional Sessions judge, Rajkot District at Gondal, by his judgment and order dated June 10, 1987, rendered in the aforesaid appeal No. 35 of 1986, without dealing with the aforesaid finding, rendered in para 111 onwards in the judgment of the Sessions Case No. 69 of 1982, partly allowed the appeal and ordered that the sentence imposed on the respondent-accused in Sessions Case No. 69 of 1982 should run concurrently with the sentence imposed on accused in Sessions Case No. 29 of 1982. The State has preferred this Criminal Revision Application against this order of the learned additional Sessions Judge rendered in Criminal Appeal No. 35 of 1986. ( 5 ) SECTION 31 of the Code of Criminal Procedure, 1973 enacts rule that the sentence are to run consecutively, unless the Court directs that they should run concurrently, where a person is convicted at one trial of two or more offences and several sentences are ordered. ( 6 ) SECTION 427 of the Code of Criminal Procedure, 1973 providing for sentence on offender already sentenced for another offence, reads as under :"427. ( 6 ) SECTION 427 of the Code of Criminal Procedure, 1973 providing for sentence on offender already sentenced for another offence, reads as under :"427. (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 Sec. 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. "thus, the aforesaid provision of Sec. 427 of the Code enacts the rule where a person already undergoing the sentence is sentenced to imprisonment, etc. Section 427 of the Code thus relates to administration of criminal justice. It provides procedure for sentencing. The sentencing Court has, therefore, to consider and make an appropriate order as to how the sentence passed in subsequent case is to run, i. e. , whether it should be concurrent or consecutive. ( 7 ) WHAT is contemplated by the aforesaid provision of Sec. 427 of the Code is where several sentences are passed against the same person, such sentences should run consecutively, one after the expiration of the other, unless the Court directs that such sentences should run concurrently. The normal rule or the rule under Sec. 427 of the Code is consecutive sentences. Discretion is, however, given to the sentencing Court to direct the concurrency. However, if concurrency is applied in case of habitual offenders, it defeats the rule contained in Sec. 427 and would also lead to hostile discrimination negatively. Segregation of hostile offenders by consecutive sentences is thus an accepted principle. ( 8 ) A reference may be made in this connection to the case of Mohd. Akhtar hussain @ Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), ahmedabad and Ors. Segregation of hostile offenders by consecutive sentences is thus an accepted principle. ( 8 ) A reference may be made in this connection to the case of Mohd. Akhtar hussain @ Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), ahmedabad and Ors. , reported in AIR 1988 SC 2143 : [1988 (2) GLR 1436 (SC)]. The essential facts of the case were that appellant, Mohd. Akhtar Hussain @ Ibrahim ahmed Bhatti, a Pakistani national, unauthorisedly and illegally possessed the gold weighing 7,000 tolas of foreign mark of the value of Rs. 1. 4 crores. The said gold was seized from the appellant on April 15, 1982 at Ahmedabad. A case for the offence under Sec. 85 (1) (ii) of the Gold (Control) Act, 1968 was registered against the appellant, to which he pleaded guilty. On January 11, 1984 he was convicted and sentenced to imprisonment for seven years and a fine of rupees ten lakhs. It was the maximum punishment prescribed under the Gold (Control) Act. On appeal, the appellate Court confirmed the sentence, but reduced the amount of fine from rs. 10 lakhs to Rs. 5 lakhs. The Special Leave Petition filed by the appellant came to be dismissed by the Supreme Court. Thus, the conviction and sentence had become final. The appellant, while he was under judicial custody in the aforesaid case, was again prosecuted along with 18 others under Sec. 135 of the Customs Act, 1962. It was alleged that the appellant had imported gold worth Rs. 12. 5 crores and smuggled out of India silver worth Rs. 11. 5 crores, during December 1981 to february 1982. The appellant also pleaded guilty in this case, too. On January 6, 1987, the learned trial Magistrate, on the aforesaid plea of guilty by the appellant, convicted and sentenced the appellant for the offence under Sec. 135 of the Customs act. The appellant was sentenced for four years rigorous imprisonment and a fine of Rs. 2 lakhs, in default further rigorous imprisonment for six months. It was ordered that the said sentence was to be undergone on expiration of the sentence in the earlier Criminal Case for the offence under Sec. 85 (1) (ii) of the Gold (Control) act, 1968. ( 9 ) AGAINST the aforesaid order of conviction and sentence, there were appeals and counter-appeals before the High Court of Gujarat. It was ordered that the said sentence was to be undergone on expiration of the sentence in the earlier Criminal Case for the offence under Sec. 85 (1) (ii) of the Gold (Control) act, 1968. ( 9 ) AGAINST the aforesaid order of conviction and sentence, there were appeals and counter-appeals before the High Court of Gujarat. The appellant appealed amongst the sentence on the ground that the sentences should have been made to run concurrently. The State, on the other hand, demanded the maximum sentence again, being R. I. for seven years for the offence under Sec. 135 of the Customs act. The State contended that in view of the enormity of the economic crime committed by the appellant, he should be given the maximum and consecutive sentence. The High Court accepted the State appeal, enhanced the sentence from 4 years to 7 years and made it consecutive. The High Court dismissed the appeal of the appellant. The appellant preferred Special Leave Petition in the Supreme Court against the aforesaid order of the High Court. The Supreme Court, while dealing with Sec. 427 of the Code of Criminal Procedure, observed as under :"10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. "in the present case, the two offences for which the respondent-accused was prosecuted are quite distinct and different. The respondent-accused was tried and convicted for the offence of rape in Sessions Case No. 29 of 1982. He was also tried and convicted for the offence of rape under Sec. 376 and also under Secs. 363, 367 and 452 of the Indian Penal Code in Sessions Case No. 69 of 1982. The learned Additional Sessions Judge, Gondal, while allowing Criminal Appeal No. 35 of 1986 of the respondent-accused did not resort to the principles laid down in Sec. 427 of the Code of Criminal Procedure. 363, 367 and 452 of the Indian Penal Code in Sessions Case No. 69 of 1982. The learned Additional Sessions Judge, Gondal, while allowing Criminal Appeal No. 35 of 1986 of the respondent-accused did not resort to the principles laid down in Sec. 427 of the Code of Criminal Procedure. It also appears that the learned judge has not taken notice of the reasonings and the findings recorded in paragraph 111 onwards in the judgment rendered in Sessions Case No. 69 of 1982. What has weighed with the learned Judge while allowing and ordering to run the sentences of the above two different cases concurrently was that the period of sentence, if ordered to run consecutively, would run for a longer period and in that case the respondent-accused will be behind the bars for about 10 years. It is true that it is left to the discretion of the Court while ordering the sentence to run either consecutively or concurrently. However, such discretion has to be exercised judicially, having regard to the facts and circumstances of the case. As observed by the Supreme court, the rule with regard to sentencing concurrently will have no application, if the transaction relating to offence is not the same and the facts constituting the two offences are quite different. The respondent-accused is found to be guilty for the offence punishable under Sec. 376 of the Indian Penal Code in two different and distinct occurrences on two different dates, and the transactions relating to the commission of the offences have no nexus with each other. This aspect was lost sight of by the learned Additional Sessions Judge, while allowing Criminal Appeal no. 35 of 1986 and ordering to run the sentences concurrently. In the facts of the cases, when the two occurrences of rape are separated from each other, sufficiently well in time and place and are different and distinct from each other, the fact that of offences being rape in both the cases and are, therefore somewhat akin to each other, cannot be a ground to exercise the discretion in favour of the concurrent running of sentences. Therefore, the learned Additional Sessions Judge has committed, in my view, the error of law in ordering the sentences awarded in two distinct Sessions Cases, namely, Sessions Case No. 29 of 1982 and Sessions Case no. Therefore, the learned Additional Sessions Judge has committed, in my view, the error of law in ordering the sentences awarded in two distinct Sessions Cases, namely, Sessions Case No. 29 of 1982 and Sessions Case no. 69 of 1982, to run concurrently, and, that too, without taking into consideration the reasonings and the findings recorded in para 111 onwards of the judgment rendered in Sessions Case No. 69 of 1982, and without appreciating the relevant provisions of Sec. 427 of the Code of Criminal Procedure, 1973. Under the circumstances, the Revision Application deserves to be allowed. ( 10 ) IN the result, the Revision Application is allowed. The judgment and order dated June 10, 1987, rendered in Criminal Appeal No. 35 of 1986 by the learned additional Sessions Judge, Rajkot District at Gondal, is hereby quashed and set aside. It is ordered that the sentences imposed on the accused as per judgments rendered in Sessions Case No. 29 of 1982 and Sessions Case No. 69 of 1982 of the Court of Assistant Sessions Judge, Rajkot at Gondal, are ordered to run consecutively. Rule accordingly made absolute. .