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2002 DIGILAW 650 (MP)

Ajit @ Bhuriya v. State of M. P.

2002-07-11

S.L.KOCHAR

body2002
Judgment ( 1. ) THIS petition, under Section 482 of the Criminal Procedure Code, has been filed against the order dated 20-6-2002 passed by II ASJ, Ratlam, in Criminal Revision No. 83/2002, arising out of Criminal Case No. 235/94 order passed on 22-5-2002 by the learned Judicial Magistrate, First Class, Sailana. ( 2. ) THE contention of the learned Counsel for the applicant is that applicant Ajit @ Bhuriya was convicted for the offence punishable under Sections 302, 365/34 and 120-B, IPC in Sessions Trial No. 86 of 90 by the judgment dated 29-11-1994. Against this judgment, the applicant filed Criminal Appeal No. 831/94. This criminal appeal, has been decided by this Court vide judgment dated 4-4-2002. The appellant/applicant has been acquitted from the charges of offences under Section 302/34, IPC read with Section 120-B, IPC and the sentence of life imprisonment has been set aside and sentenced to undergo RI for 7 years for the offence punishable under Section 365, IPC. ( 3. ) DURING the pendency of the aforesaid Criminal Appeal No. 831/94, the applicant was convicted by the learned Judicial Magistrate, First Class, Sailana in Criminal Case No. 235/94 judgment dated 23-9-1995 for the offence under Section 323, IPC and sentenced to RI for six months and fine of Rs. 200/-; under Section 506, IPC sentence to RI for 9 months and fine of Rs. 200/- and under Section 294, IPC, RI for one month and fine of Rs. 100/ -. The sentences were ordered to run concurrently. ( 4. ) LEARNED Counsel for the applicant submitted an application for release of the applicant in pursuance of the judgment dated 4-4-2002 passed by the High Court in Criminal Appeal No. 831/94. Learned Judicial Magistrate, First Class, Sailana issued order of release of the applicant to the jail authorities on 23-4-2002 but the jail authorities did not release the applicant on the ground that he is required to undergo jail sentence passed in Criminal Case No. 235/94 as mentioned above. Again, the applicant submitted an application on 16-5-2002 before the learned Judicial Magistrate, First Class, Sailana for taking necessary action against the jail authorities, who did not comply with the orders of release passed by the Court. The jail authorities appeared before the Court and submitted their reply. ( 5. Again, the applicant submitted an application on 16-5-2002 before the learned Judicial Magistrate, First Class, Sailana for taking necessary action against the jail authorities, who did not comply with the orders of release passed by the Court. The jail authorities appeared before the Court and submitted their reply. ( 5. ) LEARNED Trial Court, after hearing both the parties, dismissed the application of the applicant holding that the applicant has to undergo jail sentence passed in Cr. Case No. 235/94. Against this order dated 25-5-2002, the applicant went up in revision and the Revisional Court has also dismissed the same on the ground that because the applicant was convicted only for the offence punishable under Section 365, IPC, sentenced to RI for 7 years in Criminal Appeal No. 831/94 judgment dated 4-4-2002 arising out of order dated 29-11-94 passed in S. T. No. 86/90. Provision of Section 427 Sub-section (2) of the Cr. PC will not apply as the applicant has already completed 7 years jail sentence passed in the aforesaid Sessions Trial. Therefore, the applicant cannot get benefit of Section 427 Sub-section (2) of the Cr. PC and he has to undergo jail sentence independently passed in Criminal Case No. 235/94. ( 6. ) THE contention of the learned Counsel for the applicant before this Court is that at the initial stage, Sessions Court awarded life imprisonment to the applicant therefore, he is entitled to get benefit of Section 427 subsection (2), Cr. PC. The wordings of this Section is having its mandatory effect. ( 7. ) MR. Girish Desai, learned Deputy Advocate General submitted that the applicant is not entitled to get benefit of Section 427 Sub-section (2) of the Code of Criminal Procedure. It reads as under :- "section 427. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (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. " According to this Section, a person already undergoing a sentence of imprisonment for life, his sentence on subsequent conviction to imprisonment, can run concurrently with such previous sentence by on the date of filing an application, the applicant was not undergoing sentence of life imprisonment, not only that even for offence under Section 365, IPC, the applicant had already completed jail sentence. Therefore, the question of giving benefit to the applicant under Section 427 Sub-section (2) would not arise. ( 8. ) HAVING considered rival contentions of the parties, this Court is of the opinion that on the date when the application was filed, the applicant was not undergoing any jail sentence in any criminal case. He was convicted in Criminal Case No. 831/94 by judgment dated 4-4-2002 and sentenced to RI for 7 years, that sentence was also completed by him, therefore, on the date of lodging grievance and praying for the benefit of Section 427 Sub-section (2), Cr. PC the applicant was not undergoing any jail sentence in any other case than the sentence passed in Criminal Case No. 235/94. Therefore, the question of passing any order by the Revisional Court or even by this Court under Section 482, Cr. PC does not arise. ( 9. ) FOR the foregoing discussions, this petition is dismissed having no substance.