1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CR.MISC.PETITION NO.2062/2010 Shishram @ Shisho Vs. State Date of order : 3/11/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Azad Ahmed for the petitioner. Shri Peeyush Kumar, P.P. for the State. ****** REPORTABLE This petition u/s.482 Cr.P.C. has been filed by the accused-petitioner Shishram @ Shisho, who has been convicted and sentenced in three different criminal cases in the following manner: Case No. Judgement Dated Offence Sentenced to undergo Confinement during trial 29/04 26.9.2006 395 IPC 5 yrs with fine of Rs.2000 2 yrs 1 month 5 days 11/05 30.11.08 395/397 IPC 7 yrs with fine of Rs.1000 2 yrs 3 months 22 days 23/06 22.1.08 399 IPC 5 yrs with fine of Rs.1000 ) 2 yrs 10 months 26 days 402 IPC 3 yrs with fine of Rs.500 ) In case No.11/05, sentence of 10 years was awarded by the trial court, which was modified in his appeal by this Court to 7 years. Petitioner has contended that he has remained in confinement during trial for different spells (as indicated above) which period is more than 2 years in all the three cases. Except the sentence of five years for offence u/s.399 of IPC and three years for offence u /s. 402 of IPC awarded to him in the same trial in Case No.23/06, which were ordered to run concurrently, petitioner has now been required to undergo full term of sentence consecutively in each of these 2 cases, which in effect would mean that despite there being a common and overlapping period of confinement in all the three cases, he would have to separately undergo the sentence of 7 years, 5 years and 5 years respectively, thus in total for a period of 17 years. Shri Azad Ahmed, learned counsel citing provisions of Section 427 of the Code of Criminal Procedure argued that even if sentences have been awarded in different trials by separate judgements, they are nevertheless required to run concurrently because it is the same person who is convicted. Learned counsel in support of this argument has cited judgement of Supreme Court in State of Punjab vs. Madan Lal-(2009) 5 SCC 238, division bench judgement of this Court in Vimal Mehra vs. State & Ors.-2008 (3) WLC (Raj.) 624, and single bench judgements of this Court in Achalchand Sancheti vs. State of Raj.-2010 (3) WLC (Raj.) 304, Mahavir Sharma vs. State-2007 WLC (Raj.) UC 786, Hardeva & Ors. vs. State -2004 (1) WLC (Raj.) 295. Shri Peeyush Kumar, learned Public Prosecutor opposed the petitioner. He, however, could not justify why in the face of specific provisions of Section 427, sentences awarded to the petitioner in different three trials by different judgements, should not be ordered to run concurrently. A perusal of Section 427 of the Code of Criminal Procedure shows that when a person 3 already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment 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. There is however a proviso to Section 427 of Cr.P.C. to the effect 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. A coordinate bench of this Court in Mahavir Sharma, supra was called upon to decide similar question wherein accused was convicted for different spells in ten separate trials. Following ratio of various earlier judgements of this Court and division bench of Calcutta High Court in Janta Kumar Banerjee vs. State of West Bengal-AIR 1955 Cal. 632, sentences awarded to the accused in that case were ordered to run concurrently. In Achalchand Sancheti, supra also it was observed that allowing sentences to run consecutively would be too harsh on the accused. Sentences as awarded to the accused in more than one case was therefore ordered to run concurrently. In the case of Madan Lal, supra the 4 Supreme Court was dealing with the case where all the transactions related to the family of the accused-respondent and matter pertained to different cheques issued by the respondent to complainant, for which purpose, separate complaints were filed. The accused was convicted in three different trials and sentenced to undergo sentence for different durations. High Court allowing the petition filed by the accused u/s.482 Cr.P.C. directed the sentenced awarded in those cases to run concurrently. State of Punjab filed appeal against the aforesaid judgement. Supreme Court in those facts rejected the appeal holding that the discretion exercised by High Court in directing sentences in all the three cases to run concurrently was just and proper. There is another angle to the matter which needs to be noticed which is that sub- section (2) of Section 427 has provided 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. This underlines the intention of the legislature that even the life convicts have been held entitled to benefit of subsequent sentence, be it life term or of any lesser term, being run concurrently. In the case of those, who have been awarded sentence of lesser duration than life, obviously a different yardstick cannot 5 be applied unless there are compelling reasons to do so. For the convicts who have been awarded imprisonment of life, however, the benefit of set off under Section 428 has been held to be not admissible by judgement of Supreme Court in Kartar Singh vs. State of Haryana-AIR 1982 SC 1433. But in this case, the petitioner would also be entitled to avail the benefit of set off as far as period of his confinement during investigation or trial of each case in which he has been eventually convicted, against the term of imprisonment awarded to him in terms of Section 428 Cr.P.C. However, such benefit of setting off the period of confinement as against the sentence awarded to the petitioner in respective case should start running from the date, he was formally shown arrested in that particular case and counting from that date onwards when he completes maximum period of sentence, in each of the three cases, he would be entitled to release. In the result, this petition is allowed and it is ordered that the sentence awarded to the petitioner in Case Nos.29/04, 11/05 and 23/06 vide judgements dated 26.9.2006, 30.11.2006 and 22.1.2008 respectively shall run concurrently in the terms indicated above. (MOHAMMAD RAFIQ), J. RS/-