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2022 DIGILAW 965 (BOM)

Sunil Bhima Kurhade v. State of Maharashtra

2022-04-01

PRASANNA B.VARALE, S.M.MODAK

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JUDGMENT S.M.MODAK, J. - Short issue involved in this petition is whether the Petitioner is entitled to the benefit of concurrent sentence as laid down in the provisions of sec. 427 (2) of the Code of Criminal Procedure. He was convicted firstly for the offence punishable under sec. 302. 341 r/w. 34 of the Indian Penal Code on 30/8/2012. When he was undergoing this sentence, he was convicted on 12/2/2014 for the offence punishable under sec. 324 r/w. 34 of the Indian Penal Code. 2. The grievance of the Petitioner is that the learned Magistrate who convicted him in subsequent trial was aware that the petitioner is in jail but still he has not given the benefit of sec. 427(2) of the Code of Criminal Procedure. There is subsequent development. The Petitioner was acquitted by this Court vide Order dtd. 9/8/2021 in Criminal Appeal No. 1131/2012 and 229/2019. The Petitioner has brought this fact to the notice of learned Magistrate on 23/8/2021. He called a report from jail authorities. Instead of giving the benefit of concurrent sentence, the learned Magistrate has left the issue with the jail authorities by observing that if the Petitioner has undergone sentence of 2 years 6 months ( and if not required in any other case), he be released (letter dtd. 3/9/2021, page 87). We have heard Mr. Niranjan Mundargi, learned counsel appearing for the Petitioner and Mrs. S.D. Shinde, APP for the State. 3. Petitioner's grievance is that the learned Magistrate ought to have issued clear direction. That is why this petition is filed. It will be material to consider few relevant dates. they are as follows: 4. On this factual background, we have read the observations in the judgments relied upon by both the sides. In case of Ranjit Singh Vs. Union Territory Chandigarh reported in [LAWS(SC)-1991-8-42/ CRLR(SC)-1991-0-799], issue before the Hon'ble Supreme Court was whether a convicted accused undergoing life sentence is entitled to get benefit of concurrent sentence when he is convicted subsequently for offence of murder only. Hon'ble Supreme Court laid down the difference in between the provisions of Sec. 427(1) and Sec. 427(2) of the Code of Criminal Procedure. If a person is undergoing life sentence there is no point in ordering consecutive running of another life sentence. Similar is the view expressed in Dilubhai Hadabhai Vank Vs. State of Gujarat reported in [LAWS (SC)-2015-1-129]. 5. Hon'ble Supreme Court laid down the difference in between the provisions of Sec. 427(1) and Sec. 427(2) of the Code of Criminal Procedure. If a person is undergoing life sentence there is no point in ordering consecutive running of another life sentence. Similar is the view expressed in Dilubhai Hadabhai Vank Vs. State of Gujarat reported in [LAWS (SC)-2015-1-129]. 5. The observations in above two authorities are only useful in order to understand the difference in between the provisions of Sec. 427(1) and Sec. 427(2) of the Code of Criminal Procedure. First sentence is for the offence under sec. 302 of IPC on 30/9/1998. Whereas, subsequent sentence is for the offence punishable under sec. 324 of IPC on 1/1/2001. These are the facts in that case. 6. Whereas in case of Vasudeo Shankar Rajput Alias Kanjarbhat Vs. State of Maharashtra reported in [LAWS (BOM)-2013-8- 173], similar issue about entitlement to concurrent sentence had arisen. First conviction was under Sec. 302, 394 of IPC. Whereas subsequent sentence was under sec. 395 of IPC (para 3). It has been observed thus:- "The language of the sec. is clear ad unambiguous. The sec. has been worded in imperative terms which is evident from the use of the expression, "the subsequent sentence shall run concurrently with such previous sentence" and admits of no discretion or exception in the matter of directing the subsequent sentence to run concurrently." In fact there is also emphasis on giving benefit of the provisions of sec. 427(2) of the Code of Civil Procedure by the Superintendent of Jail also (para 5). Finally subsequent sentence was directed to be run concurrently. 7. Similar is the view expressed in case of Hanuman S/O Anandrao Pendam Vs. State of Maharashtra reported in [LAWS (BOM)-2019-4-138]. First sentence was for the offence punishable under Sec. 302 of IPC and subsequent sentence was for the offence punishable under sec. 224 of IPC. Petitioner therein was given the benefit of the provisions of Sec. 427 (2) of the Code of Criminal Procedure Code. The above judgments are relied upon by the Petitioner. 8. Whereas learned APP relied upon two judgments. In case of M.R. Kadwa Vs. State of Andhra Pradesh reported in [(2007) 2 SCC, 772]. Hon'ble Supreme Court has refused to give benefit of the provisions of Sec. 427(2) of the Code of Criminal Procedure. The first conviction was for the offence punishable under sec. 8. Whereas learned APP relied upon two judgments. In case of M.R. Kadwa Vs. State of Andhra Pradesh reported in [(2007) 2 SCC, 772]. Hon'ble Supreme Court has refused to give benefit of the provisions of Sec. 427(2) of the Code of Criminal Procedure. The first conviction was for the offence punishable under sec. 120B/ 420, 468, 471 of IPC r/w. Sec. 5(1) of Prevention of Corruption Act. This was on 4 th July, 1997. Whereas subsequently on 6/8/1997, the Petitioner therein was convicted under sec. 120B/420, 468, 471 of IPC r/w. Sec. 5(1) of Prevention of Corruption Act. So the Petitioner therein was not convicted for the offence punishable under sec. 302 of IPC, which is primary requirement of sec. 427(2) of the Code of Criminal Procedure. On minute reading of the facts of that case, we may find that they are materially different from the facts before us. In that case plea for concurrent sentence was made before the Special Judge who tried the second trial and it was rejected. High Court dealt with two separate appeals preferred against two separate convictions. Both the appeals were dismissed on merits by separate judgments. At that time, plea of concurrent sentence was not raised. It was raised subsequently by separate petition and it was dismissed. On this background, Hon'ble Supreme Court rejected the plea of concurrent sentence. 9. It is true that when Division Bench of this Court dealt with criminal appeals against conviction, the Petitioner has not taken the plea of concurrent sentence . It is true that this plea could be taken if there is an appeal against the order of conviction by the Court of JMFC. At the same time, it is important to note that in this case, the plea of concurrent sentence was taken before the Court of JMFC after he was acquitted by this Court. Unfortunately, the learned Magistrate has not given specific direction. Further, in case before Apex Court, it was the case of application under sec. 427(1) of the Code of Criminal Procedure. So with respect, we say that those observations are not applicable to the facts before us. 10. We have also read the second judgment relied upon by learned APP in case of Satnam Singh Puransing Gill Vs. The State of Maharashtra reported in [2009 CRI. L.J. 3781]. It was pronounced in a reference case. So with respect, we say that those observations are not applicable to the facts before us. 10. We have also read the second judgment relied upon by learned APP in case of Satnam Singh Puransing Gill Vs. The State of Maharashtra reported in [2009 CRI. L.J. 3781]. It was pronounced in a reference case. But the issue of grant of benefit of concurrent sentence under sec. 427(2) of the Code of Criminal Procedure was not involved. 11. It is true that Sec. 427 of the Code of Criminal Procedure contains a provision for running of concurrent sentence. If we read them, the following principles emerges:- a. Subsequent sentence will run consecutively is a normal rule under sec. 427(1) of the Code of Criminal Procedure. b. However, this normal rule can be deviated and sentences can run concurrently if the Court otherwise directs. c. Sec. 427 (1) of the Code does not contemplate first sentence must be of life imprisonment. The word used 'is a sentence of imprisonment'. d. The provisions of Sec. 427(2) of the Code is applicable if earlier sentence is for imprisonment for life and there is subsequent conviction. In that case, a running of sentence concurrently with a previous sentence is a rule. 12. So there is material difference in between the provisions of Sec. 427(1) of the Code on one hand and Sec. 427(2) on the other hand. In other words, when there is sentence of life imprisonment, the provisions of Sub-Sec. (2) will come into picture and both the sentences should run concurrently. It is the responsibility of the Court sentencing a particular accused subsequently to take a note of the fact of earlier sentence. Mean to say whether anyone points out to him or not is immaterial. It is true that on many occasions the fact of earlier sentence may not be brought to the notice of the Court seized of second case. In fact, whenever there is an occasion to consider the issue of concurrent sentence, that has to be addressed by the Court before whom such issue is raised. So we are of the firm opinion that the Petitioner ought to have been given the benefit of subsequent sentence to run concurrently. 13. There is one more angle to the present petition. So we are of the firm opinion that the Petitioner ought to have been given the benefit of subsequent sentence to run concurrently. 13. There is one more angle to the present petition. When the Petitioner is acquitted by Division Bench of this Court on 9/8/2021, whether the Petitioner looses his right to ask for running of sentence concurrently. The answer is 'No'. If we consider the relevant dates, we may find that on 12th of February, 2014, the Petitioner was convicted by the learned Magistrate, he was already undergoing the sentence of life imprisonment. As such, the right has accrued to ask for concurrent sentence on that date itself. So what we feel is that this right is not defeated just because it was not brought to the notice of learned Magistrate. It is also not defeated just because the Petitioner has been acquitted subsequently on 9/8/2021. If we calculate the period of two years and 6 months (as mentioned by the learned Magistrate in the letter dtd. 3/9/2021, page 87) from the date of the conviction on 30/8/2012 (i.e. the date on which he was convicted for life imprisonment), the Petitioner has already undergone the full term of the sentence. So the Petitioner ought to be released from jail immediately. Hence, the following order is passed: ORDER (a) The petition is allowed. (b) The sentence passed in RCC 341 of 2006 on 12/2/2014 convicting the Petitioner for the offence punishable under sec. 324 of IPC is to run concurrently along with the sentence of life imprisonment originally awarded in Sessions Case No. 281 of 2011 (c) The Petitioner be released from jail if not required in any other case.