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2010 DIGILAW 866 (GAU)

Laxminath Chakma v. State of Tripura

2010-11-18

C.R.SARMA

body2010
C.R. Sarma, J.;- By this application filed under Section 482 of the Code of Criminal Procedure (for short, CrPC), the petitioner who is a convict in Ses­sions Case No. ST 37(NT/K)/2005, ST 39(NT/K)/2005 and ST 42(NT/K)/2005 has prayed for issuing a direction to the learned Sessions Judge, Kailashahar, North Tripura to pass an order to the effect that the sentences passed, in the said Sessions cases, should run concurrently instead of consecutively. 2. The brief fact of the case, necessary for disposal of this matter, in brief, may be stated as follows: On the basis of three FIRs lodged with the police alleging therein abduction of three different persons at three different points of time, three criminal cases were registered against the convict-petitioner, namely, Sri Laxminath Chakma and others and the respective chargesheets in the said criminal cases were submitted by the Investigating Officer against the petitioner and others. Accordingly, three Sessions cases, being ST 37(NT/K) 2005, ST 39 (NT/K)/2005 and ST 42(NT/ K)/2005 aforesaid were registered. (i) The learned Sessions Judge, North Tripura, Kailashahar in ST 37(NT/K)/2005 framed the following charge against the peti­tioner and Sri Sankar Bijoy Chakma:- "That, on 9.1.2004 at about 0945 hours at Gojacherra under PS Longtharai valley both of you along with 5/6 others in furtherance of com­mon intention of you all abducted Sailen Sarkar at the point of gun in order that said Sailen Sarkar might be so disposed of as to be put in danger of being murdered and thereby committed an offence punishable under Section 364 read with Section 34 of Indian Penal Code and within my cognizance. And I hereby direct that both of you be tried on the said charge by this Court." (ii) In ST 39(NT/K)/2005 learned Ses­sions Judge, North Tripura, Kailashahar framed the following charge against the peti­tioner and Sri Karan Reang: "That, on 4.9.2003 at about 0900 hours at Durgacherra under PS Longtharaivalley both of you long with others in furtherance of com­mon intention of you all abducted Sri Sagata Roy at the point of gun in order that said Sri Sagata Roy might be so disposed of as to be put in danger of being murdered and thereby both of you committed an offence punishable under Section 364 read with Section 34 of the Indian Penal Code and within my cognizance. And I hereby direct that both of you be tried on the said charge by this Court." (iii) In Sessions Case No. 42(NT/K)/ 2005, learned Sessions Judge framed the following charge against the petitioner:- "That, on 27.6.2003 at about 1530 hours at Bhaitar Durgacherra under PS Longtharaivalley you along with 4/5 others in furtherance of com­mon intention of you all abducted Sanjib Dewan and Gopal Sarkar at the point of gun and threat­ened to cause death and hurt to those abducted persons in order to compel the relatives of those abducted persons to pay ransom to you and thereby you have committed an offence pun­ishable under Section 364 A read with Section 34 of the Indian Penal Code and within my cog­nizance. And I hereby direct that you be tried on the said charge by this Court." (iv) The trial in the said Sessions cases having proceeded separately, the learned Sessions Judge disposed of the said Sessions cases on different dates. By his judgment and order, dated 27.7.05, passed in ST 37(NT/ K)/2005, learned Sessions Judge convicted the petitioner under Section 365 read with Section 34IPC and sentenced him to suffer rigorous imprisonment for four years and pay fine of Rs.500/- (rupees five hundred), in de­fault, suffer rigorous imprisonment for another period of six months. By his judgment and order, dated 4.7.05, passed in ST 39(NT/ K)/2005, the learned Sessions Judge con­victed the petitioner under Section 365 read with 34 IPC and sentenced him to suffer rig­orous imprisonment for five years and pay fine of Rs. 1,000/- (rupees one thousand), in de­fault, suffer rigorous imprisonment for another period of six months. By his judgment and order, dated 9.8.05, the learned Sessions Judge convicted the petitioner under Section 365 read with Section 34 IPC and sentenced him to suffer rigorous imprisonment for five years and pay fine of Rs.500/- (rupees five hundred), in default, suffer rigorous impris­onment for another period of three months. In all the said cases, it was directed that the period of detention already undergone by the convict aforesaid shall be treated as set off under Section 428 CrPC. 3. Admittedly, the learned Sessions Judge did not pass any order as to whether the sen­tence aforesaid shall run consecutively or con­currently. In all the said cases, it was directed that the period of detention already undergone by the convict aforesaid shall be treated as set off under Section 428 CrPC. 3. Admittedly, the learned Sessions Judge did not pass any order as to whether the sen­tence aforesaid shall run consecutively or con­currently. Being aggrieved by the convictions and sentences, the petitioner, as appellant, preferred three appeals being Criminal Ap­peal No. 25 of 2006, Criminal Appeal No. 26 of 2006, Criminal Appeal No. 27 of 2006 and challenged the legality and sustainability of the impugned conviction and sentences. A learned Single Judge of this Court by his common judgment and order, dated 5.3.03, passed in the said appeals dismissed the appeals for want of merit and accordingly, upheld and affirmed the impugned convictions and sentences, rendered by the learned trial Judge. In disposing the said criminal appeals, the learned Single Judge observed that at the time of hearing, the learned counsel, appear­ing for the appellant canvassed the only point of identity of the appellant (in all the cases). This Court, while dismissing the said appeals, observed that there was sufficient evidence on record to show that the appellant was identified by abducted persons as one of the miscreants. After disposal of the said appeals on 5.3.09, the said appellant, as petitioner, has filed this petition on 29.9.10 seeking a direction that the sentences should run con­currently. 4. I have heard Mr. R. Datta, learned counsel for the petitioner. Also heard Mr. A. Ghosh, learned Addl. Public Prosecutor for the State. 5. Mr. Datta, referring to the provision of Section 427(1) CrPC, has submitted that, in view of awarding separate sentences in three different trials for the same kind of offence, the learned Sessions Judge should have or­dered that the sentences should run concurrently and that this Court by exercising inher­ent jurisdiction, under Section 482 CrPC, should rectify the said defect. It is also sub­mitted that if the sentences are not allowed to run concurrently, the petitioner would be re­quired to suffer imprisonment for a total period of fourteen years (five years + five years + four years) for committing the same type of offence i.e. the offence under Sections 365/ 34IPC, though on different dates in respect of three different persons. In support of his contention, the learned counsel has relied on the decisions held in the case of (1) Mohd. In support of his contention, the learned counsel has relied on the decisions held in the case of (1) Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad & Ors.: AIR 1988 SC 2143 . (2) Satnam Singh Puransing Gill Vs. State of Maharashtra: (2009) CRI.LJ. 3781 (3) Ammavasai &Anr. Vs. Inspector of Police, Vallyanur: AIR 2000 SC 3544 (4) Mohan Bhanudas Mohite Vs. State of Maharashtra: 2004 CRI.LJ. 2945. 6. In reply to the said argument, advanced on behalf of the convict-petitioner, Mr. A. Ghosh, learned Addl. Public Prosecutor ap­pearing for the State has submitted that the provision prescribed by Section 427(1) CrPC is a discretionary one and that it is not man­datory for the trial Judge to pass order to the effect that the sentences should run concur­rently. Referring to the judgment and order, dated 5.3.09 aforesaid, passed by a learned Single Judge of this Court, learned Addl. Pub­lic Prosecutor has submitted that the petitioner got sufficient opportunity to agitate the mat­ter before the learned Single Judge, but the petitioner failed to raise the said question at the appropriate time before the appellate Court. It is also submitted that as the im­pugned sentences and convictions have been upheld and affirmed by the High Court in ap­peal, there is no scope for entertaining the present petition under Section 482 CrPC and to review the judgment and order passed by the said appellate Court. Admittedly, sepa­rate trials were held on the allegation of com­mitting the offence under Section 365 read with Section 34IPC in respect of three dif­ferent persons, on three different dates and the judgments were also delivered by the trial Judge on three different dates. The total pe­riod of imprisonment required to undergo by the petitioner/convict is 14 years. 7. In order to appreciate the contentions, advanced, on behalf of both the parties and to arrive at a correct decision, I feel it appro­priate to go through the relevant statutory provision and the principles of law laid down by the Courts. The total pe­riod of imprisonment required to undergo by the petitioner/convict is 14 years. 7. In order to appreciate the contentions, advanced, on behalf of both the parties and to arrive at a correct decision, I feel it appro­priate to go through the relevant statutory provision and the principles of law laid down by the Courts. Section 427(1) CrPC reads as follows:-"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 furnish ing 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." From the above statutory provision, it can be found that the imprisonment or imprisonment for life awarded in a subsequently de­cided case shall commence at the expiration of the imprisonment to which the convict has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. In the present case, no order was passed that the sentences of imprisonment shall run con­currently. Therefore, under the provision pre­scribed by Section 427(1) CrPC, the sentences, awarded by the learned trial Judge, shall run consecutively. 8. In the case of Md. Akhtar Hussain (su­pra), the appellant was charged under Sec­tion 85(1)(ii) Gold (Control) Act, 1968 and on his plea of guilt, the learned trial Judge convicted and sentenced him to undergo im­prisonment for seven years and pay fine of Rs. 10 lakhs. Upon appeal, the Bombay High Court confirmed that sentence, but reduced the fine to Rs.5 lakhs. The Special Leave Petition filed by the appellant was dismissed by the Supreme Court and, thus, the convic­tion and the sentence became final. 10 lakhs. Upon appeal, the Bombay High Court confirmed that sentence, but reduced the fine to Rs.5 lakhs. The Special Leave Petition filed by the appellant was dismissed by the Supreme Court and, thus, the convic­tion and the sentence became final. When the appellant was under Judicial custody in the said case, there was further investigation regarding his smuggling activities and he was again prosecuted under Section 135 of the Customs Act, 1962. He was charged for im­porting gold worth Rs.12.5 crores. He pleaded guilty and the learned trial Judge sen­tenced him for four years rigorous imprison­ment and fine of Rs.2 lakhs, in default, further rigorous imprisonment for six months. It was directed that the convict shall undergo the sentence after the expiration of the sentence awarded in the earlier case. Against this or­der of conviction and sentence, there were appeals and counter appeals before the Bombay High Court. The appellant filed ap­peal against the sentence on the ground that the sentences should have been made concurrent. The State, on the other hand, de­manded the maximum sentence. The High Court accepted the State appeal and en­hanced the sentence of four years to seven years and made it consecutive. Consequently, the High Court dismissed the appeal of the appellant, thus, requiring him to serve in all fourteen years imprisonment which he challenged in the appeal before the Supreme Court. The Supreme Court observed as follows:- "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?" While allowing the appeal and setting aside the judgment and order of the High Court and restoring the order of the trial Court, the Su­preme Court observed that the trial Magis­trate properly considered all aspects includ­ing the plea of guilt and given good reasons for awarding four years rigorous imprison­ment. Thus, imprisonment of eleven years (7+4), as awarded by the learned trial Mag­istrate in the above referred two cases, were upheld and confirmed by the Supreme Court. 9. In the Ammavasai & Anr. Thus, imprisonment of eleven years (7+4), as awarded by the learned trial Mag­istrate in the above referred two cases, were upheld and confirmed by the Supreme Court. 9. In the Ammavasai & Anr. (supra) which has been relied upon by the Bombay High Court in the case of Mohan Bhanudas Mohite (supra), there were two appellants, the first appellant was convicted in four different cases, the occurrences in all of which took place between 27.3.90 and 7.5.90. The appellant was convicted under Section 395IPC in each case and he was sentenced to undergo rigor­ous imprisonment for seven years in each of cases. As he was not given the benefit of Sec­tion 427 CrPC, by the impugned conviction and sentence, he was required to undergo a very long period of twenty eight years in Jail. The second appellant was convicted in five different cases, the occurrence in all of which took place between 21.10.89 and 7.5.90. He was found guilty under Section 395 IPC and sentenced to undergo rigorous imprisonment for seven years in each of the cases. As the benefit under Section 427 CrPC was not ex­tended, he was required to undergo imprisonment for a total period of thirty five years in Jail. The Supreme Court in the said case ob­served- "On the other hand, we allow the appellants to have the benefit of all the sentences to run concurrently, he would be out by now after serving only imprisonment for a period of 7 years awarded in one case. Both courses are unacceptable to us and, therefore, we thought of a via-media which would be consistent with the administration of criminal justice. After be­stowing our anxious consideration we thought that if the appellants would undergo a total pe­riod of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice." Accordingly, the Supreme Court directed that the sentence imposed on the first appel­lant, pursuant to the conviction passed by the Asstt. Sessions Judge, Pondicherry in S. C. 66 of 91 will run untelescoped by any other sentence imposed upon him subsequently. It was made clear that the sentence imposed in subsequent cases would start running only on the termination of the sentence imposed upon him in the aforementioned S. C. 66 of 91. Sessions Judge, Pondicherry in S. C. 66 of 91 will run untelescoped by any other sentence imposed upon him subsequently. It was made clear that the sentence imposed in subsequent cases would start running only on the termination of the sentence imposed upon him in the aforementioned S. C. 66 of 91. With the above observation, the Supreme Court directed that the sentence imposed upon the first appellant, in the following other three cases will run concurrently:- (1) S. C. 235 of 1993-In the Court of Sessions Judge, Tuticorin (2) S. C. 69 of 1994- In the Court of Sessions Judge, Nagarcoil (3) S. C. 197 of 1995- In the Court of Principal Sessions Judge, Nagapattinam Regarding second appellant also, the Su­preme Court ordered that the sentences im­posed upon him by the Asstt. Sessions Judge, Pondicherry in S. C. 66 of 91 will run unaf­fected by other sentences imposed upon him subsequently. It was made clear that only on the termination of the aforesaid sentence, the Jail authorities would start reckoning the sentence imposed upon him in respect of remain­ing four Sessions cases which are detailed below:- (1) S. C. 32 of 1994- In the Court of Sessions Judge, Dindigul. (2) S. C. 135 of 1993-In the Court of Sessions Judge, Tuticorin. (3) S. C. 69 of 1994- In the Court of Asstt. Sessions Judge, Nagarcoil. (4) S. C. 197 of 1995- In the Court of Asstt. Sessions Judge, Nagapattinam. It was also provided that the sentence passed on the second appellant in respect of the above mentioned four remaining cases would run concurrently. Thus, though there were conviction in four cases imposing separate sentence in respect of the first appellant, the Supreme Court di­rected that sentences in three cases out of the said four cases will run concurrently. Simi­larly, in respect of the second appellant also, the Supreme Court directed that the sentences in one case out of five cases will run indepen­dently while the sentence in the remaining four cases shall run concurrently. While allowing the appeal with the above direction, the Su­preme Court considered that a period of four­teen years imprisonment in respect of the con­viction passed against the said appellants would be sufficient to meet the ends of jus­tice. 10. In the case of Mohan Bhanudas Mohite (supra), the judgment, dated 18.1.92, delivered by the Addl. While allowing the appeal with the above direction, the Su­preme Court considered that a period of four­teen years imprisonment in respect of the con­viction passed against the said appellants would be sufficient to meet the ends of jus­tice. 10. In the case of Mohan Bhanudas Mohite (supra), the judgment, dated 18.1.92, delivered by the Addl. Sessions Judge, Pune in Sessions Case No. 316 of 1990 thereby convicting the appellant to undergo rigorous imprisonment for ten years and pay fine of Rs. 1 lakh, in default, SI for one year was chal­lenged on the ground that the said sentence should run concurrently with the sentence dated 13.3.92 awarded in Sessions Case No. 244 of 1991. The accused was sentenced to undergo rigorous imprisonment for ten years and pay fine of Rs. 1 lakh, in default, rigorous imprisonment for one year in Sessions Case No. 244 of 1991 aforesaid. The conviction awarded in Sessions Case No. 244 of 1991 was challenged before the Bombay High Court in Criminal Appeal No. 370 of 1992 and the same was dismissed on 5.9.94. By filing an appeal being Criminal Appeal No. 400 of 1992, challenging the judgment and order dated 18.1.92, delivered by the Addl. Sessions Judge, Pune in Sessions Case No. 316 of 1990 the appellant prayed that both the sentences should run concurrently. The learned advocate for the accused in the said appeal relied upon the judgment of the Su­preme Court in the case of Ammavasai (su­pra). In ordinary course, the appellant would have to undergo sentences of twenty years i.e. firstly for ten years in Sessions Case No. 316 of 1990 and then after the said ten years period was over, he would have to undergo rigorous imprisonment for another ten years as per the sentence awarded to him in Sessions Case No. 244 of 1991. A learned Single Judge of the Bombay High Court, while al­lowing the appeal, observed that the learned APP of the State fairly conceded that the facts of the Case did not justify the accused to un­dergo sentence of twenty years and that, that was a case where the court could exercise its discretion and order that the subsequent sen­tence, imposed in Sessions Case No. 244 of 1991 could run concurrently with the earlier sentence. Taking into consideration the afore­said judgment of the Supreme Court, relied upon by the counsel for the accused, the Court allowed the appeal directing that the sentences often years imprisonment, imposed upon the accused in both the cases, shall run concurrently, but default sentences for non­payment of fine shall run separately and inde­pendently if the fine was not paid. 11. In the case of Gopal Singh Vs. State of Madhya Pradesh, reported in 2008 CRI.LJ. (NOC)518(MP), the appellant was convicted for offence under Sections 353/149 IPC as well as under Section 821 of NDPS Act. A learned Single Judge of the Indore Bench of the Madhya Pradesh High Court considering the age of the appellant (24 years) and the fact that he was a married person having children and old parents directed that the sentences for both the offences would run concurrently. 12. A Full Bench of the Bombay High Court in the case of Satnam Singh Puransingh Gill (supra) observed- (a) Neither the Court of competent jurisdic­tion is divested of its power to pass appropriate order in terms of Section 427 (1) of the Code of Criminal Procedure, 1973 nor does the ac­cused lose this statutory benefit of right of con­sideration by the Court, only on the ground that the accused has been tried in two or more cases separately and they arise from distinct and separate offences arising out of different transactions/incidents. (b) It is neither permissible nor possible to spell out universal principle or formula which would be applicable to all cases for exercise of power vested in Court under Section 427(1) of the Code. Such power and judicial discretion has to be exercised in terms of the settled pre­cepts of criminal jurisprudence, sentencing policy and with reference to the facts and cir­cumstances of a given case, where the previ­ous and subsequent sentences of imprisonment awarded to the accused are in two or more cases for distinct and separate offences arising out of different transactions/incidents and even un­der different enactments." 13. In the light of the above principles of law laid down by the various Courts, more particularly, the Supreme Court in the case of Ammavasai & Anr., there is no difficulty in understanding that the provision prescribed by Section 427(1) CrPC is a discretionary one and the Court awarding sentence on a subsequent conviction of imprisonment in re­spect of a convict, undergoing imprisonment may grant the benefit of undergoing the sen­tences concurrently. Under Section 427(1) CrPC unless the Court directs that the sub­sequent sentence, in respect of a convict un­dergoing imprisonment, shall run concurrently with the previous sentence then the subse­quent sentence will commence at the expira­tion of the imprisonment to which he has al­ready been sentenced. But as provided by sub-Rule (2) of Section 427 CrPC, if a con­vict undergoing 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. Therefore, in respect of a convict under­going life imprisonment, it is mandatory to grant the benefit of undergoing the subsequent sentence concurrently. On the other hand, if a convict is undergoing a sentence is on a sub- sequent conviction, sentenced to imprisonment or imprisonment for life then the grant­ing of such benefit under Section 427(1) CrPC is discretionary. In the case of Ammavasai & Anr. (supra) as relied upon by the learned counsel appear­ing for the appellant and as referred to by a learned Single Judge of the Bombay High Court in Mohan Bhanudas Mohite (supra) though the first appellant was sentenced to undergo seven years imprisonment in each of the four cases and the second appellant was sentenced to undergo seven years imprison­ment in each of the five cases, the Supreme Court considering that the appellants would require by the impugned sentences undergo more than fourteen years of imprisonment, directed that in respect of the first appellant sentence of seven years imprisonment awarded in S. C. 66 of 91 shall run indepen­dently, while sentences in other three cases will run concurrently. Similarly, in respect of the second appellant also, the sentence of seven years in S. C. 66 of 91 was allowed to run unaffected by the other sentences and the sentences in other four cases were allowed to run concurrently. Thus, the appellants were allowed to undergo imprisonment for fourteen years each. Similarly, in respect of the second appellant also, the sentence of seven years in S. C. 66 of 91 was allowed to run unaffected by the other sentences and the sentences in other four cases were allowed to run concurrently. Thus, the appellants were allowed to undergo imprisonment for fourteen years each. The Supreme Court did not direct that all the sentences imposed on the concerned appellants will run concurrently. The Supreme Court brought down the total period of sentences to fourteen years. 14. In the present case before this Court, learned Sessions Judge awarded the sen­tences as follows:- (i) In Sessions Case No. 37(NT/K) of 2005- 4 years rigorous imprisonment and fine of Rs.500/-, in default, to suffer impris­onment for six months; (ii) In Sessions Case No. 39(NT/K) of 2005- 5 years rigorous imprisonment and fine of Rs. 1,000/-, in default, imprisonment for six months; and (iii) In Sessions Case No. 42(NT/K) of 2005- 5 years rigorous imprisonment and fine of Rs.500/-, in default, imprisonment for 3 months for committing the offences under Sections 365/34 IPC on three different oc­casions in respect of three victim persons. 15. The total period of sentences imposed in the said Sessions cases came to fourteen years. On behalf of the appellant, learned counsel has submitted that appellants have already paid the find amount. Therefore, it is found that as the appellants are not required to undergo imprisonment for more than four­teen years in total, the decision in the above referred case (Ammavasai & Anr.) will not help the appellant before this Court. Learned Sentencing Judge did not pass any order di­recting that the sentences shall run concur­rently. Therefore, in view of the statutory pro­vision prescribed by Section 427(1) CrPC, the sentences will run consecutively. 16. In view of the beneficial provisions prescribed by the Section 427(1) CrPC un­der the Scheme of the criminal justice admin­istration, it is desirable that a sentencing Court pass order indicating the mode in which the sentences should run. 17. It is pertinent to note here that the ap­pellant challenged the convictions and the sentences aforesaid by filing three different ap­peals being Criminal Appeal No. 25 of 2006, Criminal Appeal No. 26 of 2006 and Crimi­nal Appeal No. 27 of 2006 canvassing the limited ground that the appellant/accused could not be identified to be the miscreant in the said cases. It is pertinent to note here that the ap­pellant challenged the convictions and the sentences aforesaid by filing three different ap­peals being Criminal Appeal No. 25 of 2006, Criminal Appeal No. 26 of 2006 and Crimi­nal Appeal No. 27 of 2006 canvassing the limited ground that the appellant/accused could not be identified to be the miscreant in the said cases. The plea of running the sen­tence concurrently was not urged before the learned Single Judge. The learned Single Judge by the judgment and order, dated 05.03.2009, after hearing both the parties, dismissed the appeals. The aforesaid judgment and order dated 5.3.09 passed by this Court was not challenged. Thus, the impugned sentences, being affirmed by a learned Single Judge of this Court, the same attained its fi­nality. Therefore, in my considered opinion, there is no scope to re-open the matter by this Court in exercise of power vested by Section 482 CrPC. 18. In view of the above discussion, I find no merit in this criminal petition. Accordingly, the same stands dismissed.