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2017 DIGILAW 38 (HP)

Satish Kumar v. State of H. P.

2017-01-11

AJAY MOHAN GOEL, SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. Petitioner Satish Kumar, through the Superintendent of Jail, M.C. Jail, Nahan, has invoked the writ jurisdiction of this Court. 2. The issue pertains to the application of provisions of Section 427 of the Code of Criminal Procedure (hereinafter referred to as the Code), which read 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 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.” 3. Earlier request made by the petitioner for his release stands rejected by the Additional Sessions Judge (2), Mandi, Himachal Pradesh, vide order date 5.7.2016. 4. Undisputed facts, emerging from the record, are as under: (a) In connection with Sessions Trial No.37/2001, 67/2004, petitioner Satish Kumar was convicted for having committed an offence, punishable under Section 307 of the Indian Penal Code (hereinafter referred to as IPC), and sentenced to serve rigorous imprisonment for a period of five years and pay fine of Rs.10,000/-, failing which to undergo rigorous imprisonment for a period of one year. Such conviction, rendered by Fast Track Court, Mandi, Himachal Pradesh, vide judgment dated 28.7.2005, has attained finality, with no appeal having been field by the petitioner. From the response filed by the Superintendent of Jail, it is apparent that the petitioner had served the substantive sentence, but however, sentence in default for payment of fine was kept in abeyance. 5. Such conviction, rendered by Fast Track Court, Mandi, Himachal Pradesh, vide judgment dated 28.7.2005, has attained finality, with no appeal having been field by the petitioner. From the response filed by the Superintendent of Jail, it is apparent that the petitioner had served the substantive sentence, but however, sentence in default for payment of fine was kept in abeyance. 5. In connection with another FIR, vide judgment dated 19.9.2009, passed by Judicial Magistrate 1st Class, Sundernagar, petitioner was convicted for having committed offences, punishable under Sections 452, 323 and 506 IPC, for which he was sentenced to serve imprisonment for a period of two years, each and pay fine of Rs.3,000/-, each and in default thereof serve imprisonment for a period of three months, each. From the response filed by the Superintendent of Jail, it is apparent that the petitioner has served substantive sentence concurrently in view of his earlier conviction in connection with an offence punishable under Section 302 IPC. 6. It is a matter of record that in relation to an offence under Section 302 IPC, petitioner came to be convicted with imprisonment for life, vide judgment dated 8.3.2006, rendered by Fast Track Court, Mandi, Himachal Pradesh, in Sessions Trial No.18/2004, 79/2005. It is also a matter of record that in an appeal preferred by the petitioner, such conviction under Section 302 IPC came to be altered to that of Section 304(1) IPC, and the sentence reduced to imprisonment already undergone, as petitioner remained in jail for more than 11 years. This was so done by this Court in Criminal Appeal No.194 of 2011, titled as Satish Kumar v. State of H.P. Significantly, this Court directed that petitioner be released forthwith. It is not disputed before us that the said judgment has attained finality. 7. It is also a matter of record that petitioner was also convicted for having committed offences punishable under Sections 341 and 323 IPC, vide judgment dated 18.12.2009, rendered by Judicial Magistrate 1st Class, Sundernagar, whereby he was directed to serve imprisonment for a period of two years and pay fine of Rs.1,500/-. From the response filed by the Superintendent of Jail, it is apparent that the said sentence was also executed concurrently with the imposition of sentence of imprisonment for life, in connection with an offence punishable under Section 302 IPC. 8. From the response filed by the Superintendent of Jail, it is apparent that the said sentence was also executed concurrently with the imposition of sentence of imprisonment for life, in connection with an offence punishable under Section 302 IPC. 8. It is also a matter of record that vide judgment dated 29.5.2010, passed by Chief Judicial Magistrate, Sirmaur District at Nahan, petitioner was convicted for having committed an offence punishable under Section 8/9 of the H.P. Good Prisoners (TR) Act, 1968, whereby he was directed to serve sentence for a period of one month. 9. From the response filed by the Superintendent of Jail, it is quite apparent that the petitioner, in connection with one case or the other, remained in judicial custody for more than 12 years. 10. Petitioner came to be convicted for life imprisonment, in terms of judgment dated 8.3.2006. From the response filed by the Superintendent of Jail, it is apparent that sentence in relation to such offence commenced only after completion of rigorous imprisonment, so rendered in connection with his conviction under Section 307 IPC, vide judgment dated 28.7.2005. In connection with the said offence, petitioner remained in Jail continuously with effect from 29.7.2005/29.12.2005. But the fact of the matter is that in relation to his conviction under Section 302 IPC, the authorities construed commencement of his imprisonment only after expiry of his prior conviction, in relation to an offence under Section 307 IPC, which factual position is not disputed before us. 11. It is in this backdrop that when we peruse the relevant provisions of Section 427 of the Code, we find the trial Court to have committed grave illegality in rejecting the petitioner’s application. 12. There is no ambiguity in the statutory provisions, which are clear and simple. 13. Trial Court erred in coming to the conclusion that sub-section (2) of Section 427 of the Code was not applicable. Again, the language is simple. 12. There is no ambiguity in the statutory provisions, which are clear and simple. 13. Trial Court erred in coming to the conclusion that sub-section (2) of Section 427 of the Code was not applicable. Again, the language is simple. The date on which petitioner came to be convicted in relation to three out of four different offences, was subsequent to imposition of sentence of imprisonment for life and these sentences were to run concurrently with the sentence of life imprisonment, as per provisions of sub-section (2) of Section 427 of the Code and it is also not disputed before us that the petitioner had undergone sentence in all the above mentioned three convictions before the sentence of life imprisonment was modified by this Court. 14. From the record produced before us, it is not clear as to whether petitioner had deposited the amount of fine of Rs.10,000/-, in relation to his first conviction. Assuming hypothetically that it was not so done, even then, since he continuously remained in jail with effect from July/December, 2005, he had already undergone the period of default imprisonment in relation to such offence, for his conviction for life commenced only after execution of the first sentence. 15. Hence, in whichever way the matter is perceived, we find no justification for further detention of the petitioner, and as such order dated 5.7.2016, passed by Additional Sessions Judge (II), Mandi, Himachal Pradesh, is quashed and set aside, with a direction to the Superintendent of Jail, Nahan, to forthwith release the petitioner, unless so required in connection with any other offence, save and except the ones recorded by us. 16. Registrar (Judicial) of this Court is directed to forthwith take all consequential actions and ensure compliance of the order. Present petition stands disposed of, so also pending applications, if any.