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2001 DIGILAW 858 (PNJ)

Jai Kishan v. State Of Haryana

2001-08-16

V.M.JAIN

body2001
Judgment 1. This is a petition under S. 482, Cr. P.C. filed by the accused-petitioner, Jai Kishan, seeking a direction for concurrent running of the sentences passed against him on 27-9-1999, by CJM, Kaithal, in cases bearing FIR 25 dated 25-1-1995 under Ss. 457/382, IPC, of Police Station, City Kaithal, and FIR 360 dated 24-11-1994 under S. 457, IPC, of Police Station, City Kaithal. 2. In the petition, it was alleged that the petitioner was accused in the aforesaid two cases and that in FIR 25 aforesaid, he was sentenced to undergo RI for 3 years and to pay fine of Rs. 200.00 and in default of payment of fine to further undergo RI for 2 months under S. 457, IPC, and was also sentenced to undergo RI for 2 years and to pay fine of Rs. 200.00 and in default of payment of fine, to further undergo RI for 2 months under S. 382, IPC, vide order dated 27-9-1999, passed by the C.J.M., Kaithal, and both the sentences were ordered to run concurrently. 3. It was further alleged that the accused-petitioner was an accused in FIR 360 aforesaid and he was sentenced to undergo R.I. for 3 years and to pay fine of Rs. 200.00 and in default of payment of fine, to further undergo RI for 2 months, for the offence under S. 457, IPC, vide order dated 27-9-1999, passed by the CJM, Kaithal. Copies of the orders were attached as Annexures P1 and P2. 4. It was alleged that both the sentences were passed against the petitioner when the petitioner had admitted his guilt and his confessional statements were recorded by the learned Magistrate. It was alleged that at the time when these sentences were passed, the learned Magistrate had not considered that the sentences in the two cases could be ordered to run concurrently. It was alleged that on 22-1-2001, the petitioner moved an application that the sentences, passed in the two criminal cases, may be ordered to run concurrently, but the said application was dismissed on 2-2-2001, copy Annexure P3, without giving any reason. It was alleged that the petitioner was languishing in jail, as he was in custody during trial and that he was going to complete 3 years and 2 months in July, 2001. It was alleged that the petitioner was languishing in jail, as he was in custody during trial and that he was going to complete 3 years and 2 months in July, 2001. It was alleged that if the sentences were not ordered to run concurrently, the petitioner would undergo another period of 3 years. It was alleged that under S. 427, Cr. P.C. the petitioner was entitled to the concession of concurrent running of sentences in the two criminal cases. Accordingly, it was prayed that the sentences, passed against the petitioner, in both the cases referred to above, may be ordered to run concurrently, in the interest of justice. 5. In the written reply filed by Puran Chand, Inspector, SHO, Police Station, City Kaithal, on behalf of State of Haryana, it was alleged that since the sentences were not ordered to run concurrently, the sentence in the other case would start after the expiry of sentences in the first case. It was alleged that the petitioner was not entitled to the concession of concurrent running of sentences in the two cases. It was alleged that under S. 427, Cr. P.C. the petitioner was not entitled to the running of concurrent sentences in both the cases. Accordingly, it was prayed that the petition be dismissed. 6. I have heard learned counsel for the parties and gone through the record carefully. 7. The accused-petitioner was sentenced to undergo RI for 3 years and to pay fine of Rs. 200.00, under S. 457, IPC, and also to undergo R.I. for 2 years and to pay fine of Rs. 200.00 under S. 382, Cr. P.C, in FIR 25 aforesaid, Both the sentences were ordered to run concurrently, vide order dated 27-9-1999. In FIR 360, aforesaid, the accused-petitioner was sentenced to undergo R.I. for 3 years and to pay fine of Rs. 200.00 for the offence under S. 457, IPC, vide order dated 27-9-1999. Thus, it would be clear that the sentences in both the cases were awarded to the accused-petitioner on the same day i.e. on 27-9-1999, in respect of two different cases. At that time, the accused-petitioner had remained in custody as under-trial in both the cases. 8. 200.00 for the offence under S. 457, IPC, vide order dated 27-9-1999. Thus, it would be clear that the sentences in both the cases were awarded to the accused-petitioner on the same day i.e. on 27-9-1999, in respect of two different cases. At that time, the accused-petitioner had remained in custody as under-trial in both the cases. 8. In State of Maharashtra V/s. Najakat Alia Mubarak Ali (2001) 2 Rec Cri R 778 , it was held by the Hon ble Supreme Court that where the accused was arrested in two criminal cases and remained in jail as under-trial in both the cases and was also convicted in both the cases, the accused could claim benefit of the set off under S. 428, Cr. P.C. in both the cases. The contrary view taken by the Hon ble Supreme Court in the case reported as Raghbir Singh V/s. State of Haryana (1984) 4 SCC 348 was dissented by the Hon ble Supreme Court, in Najakat Alia Mubarak Alis case (supra). Thus, in view of the law laid down by the Hon ble Supreme Court, in Najakat Ali Mubarak Alis case (supra), the accused-appellant would be entitled to set of the period during which he remained in custody, in both the cases, while calculating the total period of sentence, for which he was required to remain in judicial custody. 9. So far as subsequent period, after conviction, is concerned, the learned CJM, while sentencing the accused in the two cases, referred to above, had not ordered the sentences in the two cases to run concurrently. It is not disputed that against the aforesaid orders dated 27-9-1999, passed by the learned Magistrate, convicting and sentencing the accused in the aforesaid two cases, the accused-petitioner had not filed any appeal or revision before any higher Court. The learned Magistrate, while passing the orders of sentences in the two cases, had not specifically stated that the sentences in both the cases shall run consecutively. 10. Under S. 427, Cr. P.C. when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment 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. 10. Under S. 427, Cr. P.C. when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment 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. In the present case, the accused-petitioner was sentenced in two cases on the same day, one after the other. Under such circumstances, the Court was competent to exercise its discretion in directing the subsequent sentence (in the case decided subsequently) that the sentence shall run concurrently with the earlier sentence in the case earlier decided). In the present case, the learned Magistrate had not exercised its discretion. Neither it was specifically mentioned that the sentences in both the cases shall run consecutively nor it was mentioned that no case for the sentences in the two cases to run concurrently, was made out. It is quite possible that this fact had escaped the notice of the learned Magistrate. 11. Taking into consideration that the accused petitioner was sentenced to undergo R.I. for 3 years in the cases for the offence under S. 457, IPC, on the plea of guilt, on the same day and taking into consideration that the other co-accused of the petitioner were subsequently acquitted by the learned Magistrate, vide judgments dated 7-8-2000, copies Annexures P4 and P5 and taking into consideration the facts and circumstances of the present case, in my opinion, the ends of justice would be fully met in case the sentences, awarded to the accused-petitioner, Jai Kishan, in the two FIRs, referred to above, vide orders dated 27-9-1999, are ordered to run concurrently, under S. 427, Cr. P.C. 12. For the reasons recorded above, the present petition is allowed and the sentences awarded to the accused-petitioner, in the two cases, referred to above, are ordered to run concurrently.