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2018 DIGILAW 358 (RAJ)

Jakir Hussain @ Chand Mohammed v. State Of Rajasthan

2018-01-30

P.K.LOHRA

body2018
ORDER : P.K. Lohra, J. 1. The instant jail appeal, under Section 385 Cr.P.C., is preferred by accused-appellant, Jakir Hussain @ Chand Mohammed, to challenge judgment dated 19.12.2013, passed by Additional Sessions Judge, Gulabpura, District Bhilwara (for short, 'learned trial Court') convicting him for offence under Section 328 I.P.C. as well as Section 379 I.P.C. The learned trial Court handed down sentence of five years' rigorous imprisonment with fine of Rs. 3,000/- for offence under Section 328 I.P.C and in default of payment of fine to undergo three months' simple imprisonment. Likewise, for offence under Section 379 I.P.C., appellant is sentenced for three years' simple imprisonment with fine of Rs. 1,000/- and in default of payment of fine to further suffer sentence of one month's simple imprisonment. 2. At the outset, learned Amicus Curiae has not challenged the conviction of appellant and sentence awarded to him by learned trial Court for aforesaid offences, but has craved for invoking Section 427 Cr.P.C. vis-a-vis the sentences of different denominations awarded to appellant in two other criminal cases to run concurrently. Details of two other cases wherein appellant is indicted and sentenced are as infra:- S. No. Name of Court Case No. Section Date of Conviction Duration of Conviction 1 ADJ(FT) No. 1 Ajmer 35/10 328, 394 IPC 06.07.2011 (1) 7 years' R.I., Fine Rs. 5000, In default of payment of fine to further undergo 1 month's S.I. (2) 7 years' R.I., Fine Rs. 5000, In default of payment of fine to further undergo 1 month's S.I. (Both are to run concurrently) 2 DJ Chittorgarh 39/11 328/34, 394 IPC 30.04.2012 (1) 5 years' R.I., Fine Rs. 2000, In default of payment of fine to further undergo 1 month's S.I. (2) 10 years' R.I., Fine Rs. 5000, In default of payment of fine to further undergo 3 months' S.I. (Both are to run concurrently) Details of sentence served by accused till 19.12.2017: S. No. Sentence served Years Months Days 1. During trial 05 08 00 2. After conviction 06 05 13 Total 12 1 13 3. With a view to seek indulgence of the Court under Section 427 Cr.P.C., appellant has also laid an application under Section 482 Cr.P.C for invoking inherent powers. During trial 05 08 00 2. After conviction 06 05 13 Total 12 1 13 3. With a view to seek indulgence of the Court under Section 427 Cr.P.C., appellant has also laid an application under Section 482 Cr.P.C for invoking inherent powers. A certificate is also enclosed with the application/petition under Section 482 Cr.P.C. showing conviction of the appellant in two other cases, i.e., case No. 35/2010 by Additional Sessions Judge Fast Track No. 1, Ajmer, for offence under Sections 328 and 394 I.P.C. and in case No. 39/2011 for offence under Sections 328/34, 394 I.P.C. by Sessions Judge, Chittorgarh. In case No. 35/2010, the Court has handed down sentence of seven years' rigorous imprisonment to the appellant with fine of Rs. 5,000/- and in default of payment of fine to further undergo sentence of one month's simple imprisonment for offence under Section 328 I.P.C., and for offence under Section 394 I.P.C. also identical sentence is awarded. Likewise, in case No. 39/2011, appellant is handed down sentence of five years' rigorous imprisonment with fine of Rs. 2,000/- and in default of payment of fine to further undergo sentence of one month's simple imprisonment and vis-a-vis offence under Section 394 I.P.C. sentenced him to ten years' rigorous imprisonment with fine of Rs. 5,000/-, and in default of payment of fine to further undergo three months' simple imprisonment. 4. In both the cases, learned trial Court has ordered the sentences to run concurrently. The Certificate also indicates a very vital fact that during trial of all these cases, appellant remained in custody for five years and eight months and after his conviction total period of incarceration has been six years five months and thirteen days. Thus, the total sentence, which the appellant has suffered, is twelve years one month and thirteen days as on 19.12.2017. 5. By relying on the certificate, it is urged by learned Amicus Curiae that first conviction of appellant was recorded on 06.07.2011, followed by second conviction on 30.04.2012 and thereafter the third conviction in instant case on 19.12.2013. Learned Amicus Curiae, therefore, submits that it is a fit case, wherein the Court may exercise inherent powers for invoking Section 427 Cr.P.C. in the interest of justice. 6. Learned Public Prosecutor appearing for the State has disputed the Certificate and other details mentioned therein. Learned Amicus Curiae, therefore, submits that it is a fit case, wherein the Court may exercise inherent powers for invoking Section 427 Cr.P.C. in the interest of justice. 6. Learned Public Prosecutor appearing for the State has disputed the Certificate and other details mentioned therein. However, learned Public Prosecutor has in general opposed the prayer to invoke Section 427 Cr.P.C. in the matter. I have heard learned Amicus Curiae, learned Public Prosecutor and pondered over the afflictions of appellant in the backdrop of legislative intent envisaged under Section 427 Cr.P.C. 7. Before adverting to consider the prayer of the appellant, it would be just and proper to examine rigour of Section 427 Cr.P.C., which reads as under:- "(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." 8. Undeniably, conviction of appellant for three different criminal cases with sentences of different denominations is discernible from the certificate but then the maximum sentence handed down to the appellant is ten years' rigorous imprisonment. Besides that, sentence awarded to the appellant in default of payment of fine for all the three cases, if taken consecutively, then the total sentence comes to ten months and if treated concurrently then it comes to seven months only. 9. Well it is clearly apparent that conviction of the appellant/petitioner is for serious delinquencies but then this itself cannot dissuade the Court to exercise discretion in his favour. The period during which crimes were committed and the maximum sentence was handed down to accused-appellant are also relevant for deciding the prayer under Section 427 Cr.P.C. besides other factors including total sentence he has undergone. The period during which crimes were committed and the maximum sentence was handed down to accused-appellant are also relevant for deciding the prayer under Section 427 Cr.P.C. besides other factors including total sentence he has undergone. It is also noteworthy that conviction in all the three cases against the appellant was recorded within a span of one and a half year and he has already undergone sentence for more than twelve years and two months by this time, therefore, it would be appropriate for this Court to exercise inherent jurisdiction enshrined under Section 482 Cr.P.C ex-debito justitiae, i.e., to do real and substantial justice for the administration of which alone the Courts exist. 10. Supreme Court, in V.K. Bansal v. State of Haryana [ 2013 (7) SCC 211 ] examined the nature of power available to the Court under Section 427(1) Cr.P.C. to direct sentences to run concurrently. The Court observed: "It is manifest from Section 427(1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises." In V.K. Bansal (supra), Supreme Court did examine the inherent powers of High Court enshrined under Section 482 Cr.P.C. for invoking Section 427 Cr.P.C. but then it has interfered with the order of the High Court rejecting criminal misc. petition under the aforesaid provision. Division Bench of this Court, in Arjun Ram & Ors. v. State of Rajasthan & Ors. [2016 (1) RLW 723 (Raj.)], while answering a question of law referred to it, as to whether High Court in exercise of powers under Section 482 Cr.P.C. can invoke Section 427 Cr.P.C. so as to order that sentences awarded in two different cases shall run concurrently, answered the same in affirmative. v. State of Rajasthan & Ors. [2016 (1) RLW 723 (Raj.)], while answering a question of law referred to it, as to whether High Court in exercise of powers under Section 482 Cr.P.C. can invoke Section 427 Cr.P.C. so as to order that sentences awarded in two different cases shall run concurrently, answered the same in affirmative. The Court held: "25. As per Section 427 Code of Criminal Procedure, in normal course a person already undergoing a sentence of imprisonment, if sentenced on a subsequent conviction to imprisonment, such imprisonment commence at the expiration of the imprisonment to which he has been previously sentenced, but the court in its discretion based on settled principles may direct that the subsequent sentence shall run concurrently with previous sentence. While exercising such discretion, the trial court, appellate court or revisional court, as the case may be, keeps in mind several factors. While examining such factors, the possibility of some error cannot be ruled out. Not only the error, but absolutely non-consideration of the issue about invoking this discretion, may also be there and that may cause great injustice. In general, it can be said that every provision of law is meant to impart justice and to ensure fair and objective treatment with every subject, but while doing so, the chances of causing injustice or failure in extending complete justice cannot be denied. To meet such an eventuality the inherent powers like Section 482 Code of Criminal Procedure are meant and those are always open to be invoked to prevent abuse of process of court and secure the ends of justice. The inherent jurisdiction is having a very large amplitude but should always be exercised cautiously and only to prevent miscarriage of justice. While keeping in mind that the inherent powers must be exercised sparingly, the court should restrain itself to invoke the same if any injury is caused to the justice. 26. We are of considered opinion that to meet the ends of justice and to rectify the gross error the powers under Section 482 Code of Criminal Procedure can be exercised, if court arrives at a conclusion that the trial court, appellate court or the revisional court, as the case may be, failed in completing the circuit of justice while invoking/not invoking the discretion vested with it as per Section 427 Code of Criminal Procedure. The court while doing so must keep in mind all necessary ingredients and precedents which are to be taken into consideration to exercise the discretion as per Section 427 Code of Criminal Procedure." 11. Now adverting to the facts of the instant case, it is crystal clear that cumulatively the sentences awarded to appellant in all the three cases including the present one, if treated consecutively, then, total period of incarceration would be twenty two years with maximum sentence of ten years in case No.39/2011. It is noteworthy that as per the certificate enclosed, appellant has remained under incarceration for more than twelve years, i.e., beyond the period of maximum sentence handed down to him. This sort of situation, even on the touchstone of criminal delinquencies of appellant and the law laid down by Division Bench, in Arjun Ram & Ors. (supra), has per se persuaded the Court to exercise inherent powers by invoking Section 427 Cr.P.C. 12. It is trite that all the Courts, whether civil or criminal possess, in absence of any express provision, as inherent in their Constitution to do the right and undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non protest, i.e., when the law gives a person anything it gives him that without which it cannot exist. Accordingly, I feel persuaded to exercise inherent powers enshrined under Section 482 Cr.P.C. in the backdrop of peculiar facts and circumstances of the case to invoke Section 427 Cr.P.C for preventing miscarriage of justice and exercise discretion to farther the ends of justice. This sort of situation would obviously entail running all the sentences awarded to appellant in the three different cases concurrently. 12. In view thereof, while dismissing the instant appeal, the petition under Section 482 Cr.P.C is allowed and it is hereby ordered that the sentences awarded to appellant in all the three cases shall run concurrently.