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2003 DIGILAW 489 (GUJ)

SARFUDDIN SULEMAN v. STATE

2003-08-26

H.H.MEHTA, SHARAD D.DAVE

body2003
H. H. MEHTA, J. ( 1 ) RULE. Service of rule is waived by Mr. P. R. Abichandani, learned APP for the respondents. Having regard to the facts stated in this application, this application is taken up for final hearing today. ( 2 ) THE petitioner - convict - Sarfuddim Suleman Fakir, who is undergoing different sentences including sentence of life imprisonment and who is lodged in Central Jail, Sabarmati, Ahmedabad has, by forwarding this application to this Court through Dy. Supdt. , Central Jail, Ahmedabad requested this Court to pass appropriate orders directing all the sentences to run concurrently in following two cases. [1] special Case No. 77 of 2001 :- the present petitioner was accused No. 4. At the end of the trial, the learned special Judge (Atro.), Ahmedabad (Rural), Ahmedabad, by rendering his judgment dated 24. 10. 2001 convicted the present petitioner (accused No. 4) along with the other co-accused. By that judgment, the present petitioner (accused No. 4) was convicted for the offences punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 394 read with Section 114 and Section 120-B of Indian Penal Code, 1860 [for short "the I. P. C. "] and for that offences, the present petitioner who was accused No. 4 was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- and in default of payment of fine to undergo rigorous imprisonment for one month for the offence punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-- and in default of payment of fine, to undergo further rigorous imprisonment for two months for the offence punishable under Section 394 read with Section 114 of I. P. C. and to undergo rigorous imprisonment for one year for an offence punishable under Section 120 (B) of I. P. C. It be noted that by the said judgment, the present petitioner i. e. accused No. 4 was acquitted for other offences punishable under Sections 342, 307 and 506 (2) of I. P. C. and also under Section 25 (1) (b) of the Arms Act. The learned Judge of the trial Court directed all the sentences to run concurrently. The learned Judge of the trial Court directed all the sentences to run concurrently. ( 3 ) BEING aggrieved against and dissatisfied the said judgment of the conviction and sentence, the present petitioner i. e. original accused No. 4 had preferred Criminal Appeal No. 958 of 2001 to this Court. That Criminal Appeal NO. 958 of 2001 came to be dismissed by this Court (Coram : Y. B. Bhatt and J. R. Vora, JJ) on 19. 07. 2002. [2] in Special Case No. 78 of 2001 :- the present petitioner was accused No. 4. At the end of the trial, the learned special Judge (Atro.), Ahmedabad (Rural), Ahmedabad, by rendering his judgment on 24. 10. 2001 held the present petitioner i. e. accused No. 4 guilty for the offences punishable under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Sections 376 (2) (g), 342 read with Section 114, 394, 324 read with Section 114, Section 506 (2) read with Section 114 of I. P. C. and also under Section 135 of the Bombay Police Act, 1951. By the said judgment, the learned special Judge (Atro.), Ahmedabad (Rural), Ahmedabad inflicted different sentences as follows :-Section 3 (1) (x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 :- to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-- and in default of payment of fine, to undergo further imprisonment for one month. Section 376 (2) (g) read with Section 114 of I. P. C. :- to undergo life imprisonment and to pay a fine of Rs. 2,000/-- and in default of payment of fine, to undergo further rigorous imprisonment for six months. Section 342 read with Section 114 of I. P. C. :- to undergo rigorous imprisonment for one year and to pay a fine of Rs. 100/-- and in default of payment of fine, to undergo further rigorous imprisonment for one month. Section 394 of I. P. C. :- to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/-- and in default of payment of fine, to undergo further rigorous imprisonment for one month. Section 324 read with Section 114 of I. P. C. :- to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-- and in default of payment of fine, to undergo further rigorous imprisonment for one month. Section 324 read with Section 114 of I. P. C. :- to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/-- and in default of payment of fine, to undergo further rigorous imprisonment for one month. Section 506 (2) read with Section 114 of I. P. C. :- To undergo rigorous imprisonment for two years and to pay a fine of Rs. 200/-- and in default of payment of fine, to undergo further rigorous imprisonment for one month. Section 135 of the Bombay Police Act, 1951 :- to undergo rigorous imprisonment for one month. The learned special Judge (Atro.), Ahmedabad (Rural), Ahmedabad directed all the sentences to run concurrently. ( 4 ) BEING aggrieved against and dissatisfied the said judgment of conviction and sentence, the present petitioner i. e. accused No. 4 had preferred Criminal Appeal No. 871 of 2001 to this court. That Criminal Appeal No. 871 of 2001 came to be dismissed by this Court (Coram: Y. B. Bhatt and J. R. Vora,jj) on 19. 07. 2002. ( 5 ) BY submitting this application, the petitioner has requested this Court that benefit of Section 427 of Criminal Procedure Code, 1973 (for short the "cr. P. C. ") be given to him and order may be passed to the effect that all the sentences to run concurrently passed in aforesaid two different cases. ( 6 ) HEARD Mr. P. R. Abichandani, learned APP for the respondents in detail at length. He has placed reliance on a decision of the Honble Supreme Court. In the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention) Ahmedabad and Ors. , reported in A. I. R. 1988 S. C. 2143, wherein the Honble Supreme Court has observed in paras- 8, 9 and 10 as follows :-"8. SECTION 427 Cr. P. C. incorporates the principles of sentencing an offender who is already undergoing a sentence of imprisonment. The relevant portion of the Section reads :"427. , reported in A. I. R. 1988 S. C. 2143, wherein the Honble Supreme Court has observed in paras- 8, 9 and 10 as follows :-"8. SECTION 427 Cr. P. C. incorporates the principles of sentencing an offender who is already undergoing a sentence of imprisonment. The relevant portion of the Section reads :"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. xx xx xx xx xx xx xx xx ""9. The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive ?"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. " ( 7 ) IN view of the aforesaid legal position, if a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences and it would be proper and legitimate to have concurrent sentences. In view of the aforesaid legal position, the aforesaid rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. Meaning thereby if accused is convicted in two different cases for two different offences, then he is not entitled to benefit of Section 427 of Cr. P. C. seeking a relief that sentences be directed to run in two different cases, concurrently. ( 8 ) ON reading the judgment of the learned special Judge (Atro.) Ahmedabad (Rural), Ahmedabad rendered in Special Case No. 77 of 2001, it appears that the offences took place on 18. 02. P. C. seeking a relief that sentences be directed to run in two different cases, concurrently. ( 8 ) ON reading the judgment of the learned special Judge (Atro.) Ahmedabad (Rural), Ahmedabad rendered in Special Case No. 77 of 2001, it appears that the offences took place on 18. 02. 1997 on the outskirts of village Mahijada falling within the jurisdiction of Sarkhej Police Station. ( 9 ) WHILE on reading the judgment of the learned special Judge (Atro.) Ahmedabad (Rural), Ahmedabad rendered in Special Case No. 78 of 2001, it appears that the offences took place on 11. 02. 1997 on the outskirts of village Bareja. ( 10 ) IN both the cases, the nature of offences are quite distinct and different. The victims in both the cases were different. In view of this, when the transaction relating to the offences is not the same and the facts constituting the two offences are quite distinct and different, then we are of the view that the petitioner is not entitled to benefit under Section 427 of Cr. P. C. ( 11 ) FOR the foregoing reasons, this application deserves to be rejected and accordingly it is rejected. Rule is discharged. .