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2009 DIGILAW 921 (BOM)

Shivram Ravikumar Gauda v. State of Maharashtra

2009-07-27

S.A.BOBDE

body2009
JUDGMENT: 1. Heard. 2. This is an application by the convict through jail for a direction under Section 427 of the Criminal Procedure Code that the sentences awarded to him be made to run concurrently. The learned counsel for the Applicant states that the Applicant has been convicted on 3rd April, 2000 in Sessions Case No. 291 of 1998 under Section 482 of the Indian Penal Code and sentenced to suffer R.I. for a period of seven years with fine of Rs.10,000/- in default to undergo R.I. for one year. Subsequently, the Applicant has been convicted on 4th April 2000 in Sessions Case No. 327 of 1998 under Section 395 of the Indian Penal Code and sentenced to undergo R.I. for life. There is no dispute about the above on behalf of the State. 3. The learned APP states that by now the Applicant has served the first sentence of seven years and is serving the second sentence of life. He submits that the Applicant has till now served a total period of 13 years and some months. 4. It appears that this Application is not tenable since it has not been made while passing the judgments sentencing the accused but is made for the first time before this Court at a subsequent stage. In M.R. Kudva vs. State of A.P. [ (2007)2 SCC 772 ] Supreme Court has observed as follows: “12. However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed.” 5. It appears that the Applicant has been convicted and sentenced on two occasions for similar offences under Section 395 of the Indian Penal Code. He has already served the first sentence. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed.” 5. It appears that the Applicant has been convicted and sentenced on two occasions for similar offences under Section 395 of the Indian Penal Code. He has already served the first sentence. Section 427 of the Criminal Procedure Code even otherwise would have no application to the case in hand since the Applicant has already undergone the first sentence of imprisonment. In terms, the Section can be invoked “when a person already undergoing a sentence of imprisonment is sentenced....” The section clearly contemplates such an application to the Court imposing the subsequent sentence or an appellate court. At this stage, there is no occasion to direct that two sentences shall run concurrently. Section 427 reads as follows: “427. Sentence on offender already sentenced for another offence.- (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 section 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.” 6. As regards the other prayer for premature release, the same may be considered by the Jail Authorities. They shall treat the present application which is already served on them as an application for the said purpose. Order accordingly.