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2020 DIGILAW 216 (MP)

Shailendra Singh v. State Of Madhya Pradesh

2020-02-11

V.P.S.CHAUHAN

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JUDGMENT Vishnu Pratap Singh Chauhan, J. - The applicant has filed this Criminal Revision under Section 397 read with Section 401 of Cr.P.C. being aggrieved by judgment dated 12.10.2018 passed by 6th Additional Sessions Judge, Rewa in Criminal Appeal No.135/2018, whereby affirmed the conviction under Section 224 of I.P.C. and sentenced to undergo R.I. for 1 year passed by the Court of JMFC, Rewa vide judgment dated 30.07.2018 in Criminal Case No.3652/2013. 2. The case of the prosecution against the applicant, in short, is that the applicant was undergoing life imprisonment in Central Jail, Rewa in another case. He was released on temporary parole on 15.05.2013 for a period of 16 days, but not appeared in the jail after lapse of 16 days. Thereafter, Superintendent of Central Jail, Rewa sent a written letter to Police Station Civil Lines, Rewa alleging therein that the prisoner did not appear in the jail after elapsed of a period on which he was temporary released. Police Station Rewa registered the case as Crime No.329/2013 against the applicant for the offence under Sections 224 and 106 of IPC and Section 31 of Prisoners Act and started investigation. The applicant was arrested on 30.09.2013, thereafter, he has been sent to jail for undergoing the remaining part of the sentence. After investigation charge-sheet has been filed against the applicant in the Court of JMFC, Rewa registered as Criminal Case No.3652/2013. 3. Learned trial Court after completion of trial delivered a judgment on 30.07.2018 convicted the applicant for the offence punishable under Section 224 of IPC and sentenced to undergo R.I. for 1 year and mentioned in the judgment that this sentence is in addition to the sentence for which, the applicant was previously convicted and undergoing the sentence and mentioned this fact on the sentence warrant too. Being aggrieved by that conviction and sentence, the applicant preferred an appeal registered as criminal appeal No.135/2018. Learned appellate Court after hearing both the parties delivered a judgment on 12.10.2018 and affirmed the conviction and sentence passed by the trial Court. 4. The applicant being aggrieved by that judgment of appellate Court preferred this criminal revision under Section 397 read with Section 401 of Cr.P.C. on the ground that learned both the Courts below failed to consider this fact that the applicant has not intentionally escaped from the custody. He was admitted in the hospital. 4. The applicant being aggrieved by that judgment of appellate Court preferred this criminal revision under Section 397 read with Section 401 of Cr.P.C. on the ground that learned both the Courts below failed to consider this fact that the applicant has not intentionally escaped from the custody. He was admitted in the hospital. He was released on 15.05.2013 for a period of 16 days, that period expired on 31.05.2013. On the date i.e. 30.05.2013 and 31.05.2013, he was suffering from some stomach ache. Doctor advised him for complete bed rest. Medical certificate (Ex.P/5) submitted by the Doctor Abhay Raj Singh, but learned trial Court not assessed that evidence properly and convicted the appellant and passed harsh sentence. He prays to allow this revision and set aside the conviction and sentence under Section 224 of IPC passed by both the Courts below. 5. Learned counsel for the applicant placed reliance upon the case law of Hariom Vijay Pandey Vs. The Superintendent, Nashik Road Central Prison & others reported in (2017) 0 Supreme (Mah) 1654 and submitted that Division Bench of High Court Judicature at Bombay, Aurangabad Bench in the same circumstances, allowed the writ petition and provided liberty to the petitioner to file an application afresh requesting to release him on furlough. It is pertinent to note here that in this case law, it is clearly mentioned that when the applicant had not appeared in time after parole, the case should be registered against the applicant under Section 224 of I.P.C. 6. Learned counsel also submitted another case law of Ashishrao Venkatrao Phad Vs. State of Maharashtra through Home Department reported in (2017) 0 Supreme (Mah) 1467 in which Hon'ble Apex Court has quashed the FIR registered under Section 224 of IPC on the ground that the applicant had been released on parole for a period of 30 days on the ground that his mother was ill and before lapsed of 30 days, he again applied for extension of his parole for a period of 30 days, however, in this present case, the facts are different. In this case, the applicant neither applied for the extension nor appeared after elapsed of parole time. 7. Learned counsel placed reliance on the case of Sanjeev Meena Vs. In this case, the applicant neither applied for the extension nor appeared after elapsed of parole time. 7. Learned counsel placed reliance on the case of Sanjeev Meena Vs. State of M.P. and others, 2009 2 MPLJ 546 in which Co-ordinate Bench of this Court has held in para-8 as under:- "(8.) So far as sub-section (2) of Section 427 of Code is concerned, the situation is different here. From bare perusal of subsection (2), it is apparent that 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. In that situation, there is no requirement for any direction of the Court as subsequent sentence will automatically run concurrently with previous sentence." 8. Hon'Ble the Apex Court in case of P.N. Mohanan Nair Vs. State of Kerala in para-8 clearly interpreted Section 427 (1) of Cr.P.C and held that "where a person is already undergoing a sentence of imprisonment, is again sentenced on a subsequent conviction to imprisonment, it shall commence at the expiration of the imprisonment previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence." 9. In the present case, learned trial Court in para-20 of judgment has clearly mentioned that after completion of previous sentence, the subsequent substance will run. Para-20 of the said judgment is reproduced herein below: 10. Heard learned counsel for the parties and perused the record. During arguments learned counsel for the applicant also contended that the applicant has already undergone R.I. for 1 year. He was arrested on 30.09.2013. The applicant in the previous case has already undergone the whole period along with that he also completed sentence of 1 year as passed by the Courts below and additionally prays that he be released immediately because he has already undergone the whole period of awarded sentence along with previous sentence concurrently. 11. He was arrested on 30.09.2013. The applicant in the previous case has already undergone the whole period along with that he also completed sentence of 1 year as passed by the Courts below and additionally prays that he be released immediately because he has already undergone the whole period of awarded sentence along with previous sentence concurrently. 11. On perusal of para-20 of the judgment, it clearly reveals that learned trial Court specifically ordered for consecutively run of substantial sentence, therefore, there is no confusion that the applicant would serve the subsequent jail sentence after completion of previous sentence, meaning thereby no concurrently, but consecutively, therefore, this Court is of the firm view that submissions made by the counsel that the applicant has already served the jail sentence concurrently along with previous jail sentence is not acceptable. 12. After hearing learned counsel for the parties and on perusal of the record of the trial Court, it is not disputed in this revision that the applicant has already been convicted and sentenced in another case. He was undergoing life imprisonment in the Central Jail, Rewa and it is also not disputed in this petition that the applicant was released temporarily on parole for a period of 16 days and released from the custody on 15.05.2013. He has to appear again and re-enter in the Central Jail on 31.05.2013. 13. When the applicant not appeared in Central Jail till 31.05.2013 then Superintendent of Jail wrote a letter (Ex.P/2) to the S.H.O. Civil Lines, Rewa to that effect. Jail Guard of Central Jail, Rewa namely Shyam Sunder Dubey (PW-1) categorically stated that the applicant was undergoing life imprisonment in Central Jail, Rewa and he was released on 15.05.2013 on parole for a period of 16 days. When he had not appeared till 30.05.2013, then on 31.05.2013 Superintendent of Jail, Rewa wrote a letter (Ex.P/2) to the Police. This witness carried that letter and submitted to the Police Station. On the basis of letter (Ex.P/2) FIR (Ex.P/1) lodged in Police Station Civil Lines and this witness signed on that FIR. In para-2 of cross-examination, this witness categorically stated that whenever any prisoner went on parole, he has to appear after completion of that period in the office time hours. This witness denied the suggestion that applicant appeared on 31.05.2015 in jail. 14. Dr. In para-2 of cross-examination, this witness categorically stated that whenever any prisoner went on parole, he has to appear after completion of that period in the office time hours. This witness denied the suggestion that applicant appeared on 31.05.2015 in jail. 14. Dr. Abayraj Singh (PW-5) categorically stated that on 29.05.2013, he was posted as Medical Officer in Savitri Nursing Home. The applicant came there with a complaint of pain in his stomach. This witness treated him and advised for the rest. His medical report is Ex.P/5. This report is given on 01.06.2013. No doubt, when this report has been provided, the period of 31.05.2013 has already been elapsed. 15. It is not reflected from the evidence of witnesses that applicant appeared on 31.05.2013 or on 01.06.2013 before the Central Jail.. S.I. R.C. Mishra (PW-6) categorically stated that he investigated the Crime No.329/2013. After receiving the permission arrested the applicant on 30.09.2013. It is prima-facie reflected that the applicant not appeared on 31.05.2013 and remained absconded till 30.09.2013. It could not be said that the applicant remained absconded with a bonafide cause. 14. Learned appellate Court, after assessing the evidence, upheld the conviction and sentence passed by the Court of JMFC. As per Section 393 of Cr.P.C., the conviction and sentence has attained its finality. So far as this revision is concerned, this Court is having limited scope for appreciating the evidence. Hon'ble the Apex Court in the Case of Kishan Rao Vs. Shankargouda, 2018 8 SCC 165 . Hon'ble Apex Court in para 12 to 14 of the said judgment has held as under : 12. This Court has time and again examined the scope of Section 397/401 Cr.P.C. and the ground for exercising the revisional jurisdiction by the High Court. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri, 1999 2 SCC 452 , while considering the scope of the revisional jurisdiction of the High Court this Court has laid down the following (SCC pp.454- 55, para 5): "5......In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence....." 13. Another judgment which has also been referred to and relied by the High Court is the judgment of this Court in Sanjaysinh Ramrao Chavan vs. Dattatray Gulabrao Phalke and others. This Court held that the High Court in exercise of revisional jurisdiction shall not interfere with the order of the Magistrate unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material, the order cannot be set aside merely on the ground that another view is possible. Following has been laid down in paragraph 14: "14.....Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction." 14. In the above case also conviction of the accused was recorded, the High Court set aside the order of conviction by substituting its own view. This Court set aside the High Court's order holding that the High Court exceeded its jurisdiction in substituting its views and that too without any legal basis." 15. On the basis of foregoing discussions and in the back drop of above case law, this Court does not find any reasons to interfere in the conviction and sentence passed by the trial Court and affirmed by the appellate Court. So far as sentence is concerned, the appellant was previously convicted and sentenced to undergo life imprisonment. He has again committed offence. In these circumstances, 1 year R.I. is sufficient and justified. Hence, this revision on the point of conviction and sentence having no substance. 16. On the basis of foregoing discussions, this revision deserves to be and is accordingly dismissed. 17. Interlocutory application, if any, pending shall stand dismissed.