1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.230 OF 2010 WITH CRIMINAL REVISION APPLICATION STAMP NO.379 OF 2010 WITH CRIMINAL APPLICATION NO.231 OF 2010 Mr. Deepak Vasudeo Talreja ...Applicant. v. State of Maharashtra ...Respondents. Mr.Meghshyam Kocharekar, adv. For the Applicant. Ms.M.H.Mhatre, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : AUGUST 9, 2010 P.C. 1 Heard the learned counsel for the parties. For the reasons given in the application, delay in filing the revision application is condoned. Revision application be registered. 2 The applicant was prosecuted and tried for the offences punishable under Sections 292(2)(a) of the I.P.C. in Criminal Case No. 11/PS/2006 for selling CDs having pornographic material. He was arrested and released on bail immediately. The trial Court convicted him for the said offence and sentenced him to undergo S.I. for one month and 2 to pay fine of Rs.1,000/- After conviction, he was immediately granted bail and he preferred the Appeal No.316 of 2006 which came to be dismissed on 17.12.2009. 3 Contention of the applicant is that during the hearing of the appeal, he was already arrested in Sessions Case No.514 of 2009 by Gavdevi Police Station. He was also convicted in that case and was undergoing sentence in that case when his appeal in the present case was dismissed on 17.12.2009. A month after that applicant was granted bail in the appeal against conviction in Sessions Case No.514/2009 and then he was released from jail. The learned counsel for the applicant contends that as the applicant was in jail for a period of one month or more after 17.12.2009, now he should not be arrested and be sent to the jail to undergo sentence in the present case. According to him, period during which he was in jail after 17.12.2009 should be deemed to be sentence undergone in the present appeal. 4 In support of his contention, the learned counsel has drawn my attention to Sections 427 and 428 of the Cr.P.C. Section 428 is not applicable because under that section if the accused was in detention during the trial of the case, period of detention has to be set off against substantive sentence of imprisonment awarded to him on conviction in 3 the same case. If the present applicant was in custody during the trial of the sessions case that custody period shall set off while executing the sentence of imprisonment in that sessions case. However, period of detention in that case can not be set off against the sentence of imprisonment awarded in the present case. 6 Section 427(1) provides that 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. Sub-section (2) of Section 427 provides 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. Sub-section (2) is not applicable because in the Sessions Case in which he was arrested during the pendency of the appeal in the present case, he was sentenced to imprisonment for five years and not for life imprisonment. In view of the provisions of subsection (1) it is clear that sentence awarded subsequently shall 4 commence to run only after expiration of sentence for a term in previous case which he was already undergoing in previous case. Had the applicant been not granted bail after conviction and sentence in the sessions case and if he would be undergoing the sentence of imprisonment in that case , sentence in the present case would commence on expiration of the sentence in that sessions case and not before that. It appears that after the conviction and sentence in sessions case, the applicant was granted bail by the appellate Court and, therefore, before the sentence in that case was completed, he was released on bail. In the present matter, the applicant was directed to surrender after his appeal was dismissed. Neither he was arrested nor he was sent to jail to undergo sentence nor any warrant was issued to the superintendent of jail where he was lodged in the sessions case, to execute the sentence of imprisonment in the present case. Therefore, jail authorities were not aware that he was required in this case. Had he been arrested or had he surrendered after dismissal of the appeal in the present case, his sentence would begin to run, when he would be entitled to be released on bail in the sessions case and jail authorities would not have released him in spite of the bail granted to him in the sessions case until completion of the sentence in the present case. 5 7 Taking into consideration the facts and the legal position, there is no substance in the present revision application, therefore, the present revision application stands dismissed. If the accused does not surrender till 17.8.2010 , the trial Court shall issue arrest warrant and commit him to jail to undergo sentence of imprisonment in the present case. 8 As the revision application itself is disposed off finally, criminal application no.231/2010 for bail does not survive and stands disposed off accordingly. 9 At this stage, the learned counsel for the applicant makes a prayer to stay the implementation of this order. Request stands rejected. (J.H. BHATIA,J.)