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2014 DIGILAW 151 (GAU)

Jogneswar Sut v. Central Bureau of Investigation

2014-02-06

A.K.GOSWAMI

body2014
JUDGMENT Arup Kumar Goswami, J. 1. Heard Mr. P. Kataki, learned counsel for the petitioner. Also heard Mr. P.N. Choudhury, learned Standing Counsel, CBI. This application under Section 482 of the Criminal Procedure Code, (for short, 'the Code') is filed by the petitioner praying for a direction to the effect that sentences passed in Criminal Appeal No. 168/2001, Criminal Appeal No. 169/2001 and Criminal Appeal No. 170/2001 shall run concurrently with that of Criminal Appeal No. 167/2001. 2. It will be appropriate to notice the facts leading to filing of the aforesaid four criminal appeals. 3. R.C. Case No. 25(A)/94 under Section 120(B)/420/468/465/471 IPC and under Section 13(2) read with Section 13(1)(c) of the Prevention of Corruption Act, 1988 (for short, 'the Act') was registered against the petitioner and holders of S/B Accounts No. 78, 1427, 1446, 1916, 3005, 3244 and 5132. The petitioner was a sub-staff of Gilamara Branch of Lakhimpur, UBI and the prosecution case was that he had made fictitious entries in the ledger sheet of S/B Accounts and thereafter withdrawn the said amounts from the said Bank. After completion of investigation, 4 Nos. of charge-sheets were submitted against the petitioner under sections 420/468/465/471 and Section 13(2) read with Section 13(1)(d) of the Act for the years 1990, 1991, 1992 and 1993 and correspondingly, Special Case Nos. 44(c)/94, 45(c)/94, 46(c)/94 and 47(c)/94, for the years 1990, 1991, 1992 and 1993, respectively, were registered. 4. The petitioner in paragraphs 2, 3, 4 and 5 of the petition mentions the conviction and sentence recorded in separate judgments dated 15.5.2001 in Special Case Nos. 44(c)/94, 45(c)/94, 46(c)/94 and 47(c)/94, respectively. The relevant extract thereof are quoted herein below: "2.................and accordingly he was convicted under section 420/468 IPC and section 13(2), read with Section 13(1)(b) read with Section 13(1)(2) of the Prevention of Corruption Act, 1988. The accused was sentenced R.I. for 3 years and fine of Rs. 3,000/- (Rupees Three Thousand) in default to R.I. for Section 420/468 IPC and Section 13(2) read with Section 13(1)(d) of the P.C. Act and also R.I. for 1 year and fine of Rs. 5,000/- (Rupees Five Thousand) in default R.I. for 1 (one) month under Section 465/468/471 IPC. The accused was sentenced R.I. for 3 years and fine of Rs. 3,000/- (Rupees Three Thousand) in default to R.I. for Section 420/468 IPC and Section 13(2) read with Section 13(1)(d) of the P.C. Act and also R.I. for 1 year and fine of Rs. 5,000/- (Rupees Five Thousand) in default R.I. for 1 (one) month under Section 465/468/471 IPC. It was further made clear that the sentences will run concurrently." "3..................The learned Special Judge vide Judgment and order dated 15.5.2001 convicted the accused under Section 420/468 IPC as well as Section 465 read with Section 471 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and sentence him for R.I. for 3 (three) years with fine of Rs. 1,000/- (Rupees one Thousand) in default R.I. for 6 (six) Months under Section 420/468 IPC and Section 13(1)(d) of P.C. Act. R.I. for 1 year and fine of Rs. 500/- (Rupees Five Hundred) in default R1 for 1 month under Section 468 read with Section 471IPC." "4.................. The Hon'ble Court vide Judgment and order dated 15.5.2001 convicted the accused petitioner under Section 420/468/465 read with Section 471 of the Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. He has been sentenced to undergo R.I. for 3(three) years and fine of Rs. 1000/- (Rupees one Thousand), in default, R.I. for 6 (six) months under Section 420/468 IPC and under Section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act. He was further sentenced R.I. for 1(one) year and fine of Rs. 500/- (Rupees Five Hundred), in default R.I. for I month under Section 468 read with Section 471 of the Indian Penal Code." "5..................The learned Special Judge, vide Judgment and order dated 15.5.2001 convicted the accused petitioner under Section 420/468/465 read with Section 471 of the Indian Penal Code and section 13(2) read with Section 13(1)(d)of the Prevention of Corruption Act, 1988." It is to be mentioned that so far as Special Case No. 47(c)/94 is concerned, sentence part is not reflected in the petition. 5. Against the aforesaid four judgments dated 15.5.2001, the petitioner filed four separate appeals numbered as Criminal Appeal No. 167/01, Criminal Appeal No. 168/2001, Criminal Appeal No. 169/2001 and Criminal Appeal No. 170/2001, corresponding to judgments rendered in Special Case No. 44(c)/94, 45(c)/94, 46(c)/94 and 47(c)/94, respectively. 5. Against the aforesaid four judgments dated 15.5.2001, the petitioner filed four separate appeals numbered as Criminal Appeal No. 167/01, Criminal Appeal No. 168/2001, Criminal Appeal No. 169/2001 and Criminal Appeal No. 170/2001, corresponding to judgments rendered in Special Case No. 44(c)/94, 45(c)/94, 46(c)/94 and 47(c)/94, respectively. All these appeals were taken up for hearing and by separate judgments, all dated 12.2.2009, the appeals were dismissed affirming the judgments and orders of the learned court below. 6. Thereafter, the petitioner surrendered before the learned Court below on 24.7.2009. He also filed an application before the learned Special Judge, CBI, Assam under section 427 Cr.P.C., registered as Misc. Case No. 1/2003 in R.C. Case No. 25(A)/94 for allowing him to undergo sentences imposed upon him in Special Case Nos. 45(c)/94, 46(c)/94 and 47(c)/94 concurrently with the Special Case Nos. 44(c)/94. By order dated 2.8.2013, the learned Special Judge rejected the petition holding that after the appeals preferred were dismissed, there can be no occasion for addition or alteration in the sentences and that no alteration, addition can be effected on the point as to whether the sentences awarded in the four special cases would run concurrently or consecutively. This order is not under challenge in this petition as noticed in the earlier part of this judgment. Direction is sought for in this petition under section 482 Cr.P.C. that sentences passed in Criminal Appeal No. 168/01, Criminal Appeal No. 169/01, Criminal Appeal No. 170/01, shall run concurrently with that of Criminal Appeal No. 167/01. 7. Section 427 of the Code of Criminal Procedure reads as under: "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 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 of imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence." 8. I am of the considered opinion that no such direction as sought for by the petitioner, can be granted. Admittedly, provision of section 427 of the Code was not invoked in the original cases or in the appeals. The High Court having not exercised its jurisdiction while hearing appeals, in exercise of powers under section 482 Cr.P.C., no such direction can be given for sentences to run concurrently. 9. In similar circumstances in M.R. Kudva vs. State of A.P. reported in (2007) 2 SCC 772 , the Apex Court had observed that when neither the trial Judge nor High Court, while passing judgment of conviction and sentence against the appellant, indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 of the Code would be attracted, Section 482 of the Code cannot be construed to be an appropriate remedy and section 427 of the Code cannot be applied in a separate and independent proceeding by the High Court. In view of the above, there is no merit in this application and accordingly, the same is dismissed. Application dismissed