1 Appeal970.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION kj CRIMINAL APPEAL NO.970 OF 2009 WITH CRIMINAL APPEAL NO.42 OF 2006 WITH CRIMINAL APPEAL NO.47 OF 2006 Mohammed Yasin @ Abu Mohammed Nasir Shaikh ) aged about 37 years, residing at Muzmil Complex, ) R.No.F-14, 1st Floor, Opp. Kamal Nursing Home, ) Chand Nagar, Kausa-Mumbra, Dist. Thane ) (Central Prison Kolhapur Jail) )..Applicant (Org.accused No.2) Vs The State of Maharashtra ) (At the instance of Borivali Police Station,Mumbai )..Respondents ---- Mr.M.K.Kocharekar for the applicants. Mr.P.S.Hingorani APP for the respondent/State. ---- Coram : V.M.KANADE,J Date : 11.10.2010. Judgment :- 2 Appeal970.10.sxw 1 Heard Shri Kocharekar who is appointed by this Court as Amicus Curie to assist the Court, and the learned APP on behalf of the State. 2 The appellant in all these cases have been convicted by the Sessions Court in three separate criminal cases and he has been sentenced to undergo rigorous imprisonment in the first case for the offence punishable under Section 392 & 394 of IPC and to suffer rigorous imprisonment for ten years and to pay fine of Rs. 500/- in default, to suffer further rigorous imprisonment for 3 months. He was also convicted for the offence under Section 397 of IPC and sentenced to suffer rigorous imprisonment for 7 years and also convicted under Section 450 of IPC and sentenced to suffer rigorous imprisonment for 3 years and to pay fine of Rs.200 in default to suffer further RI for one month. 3 In the 2nd case he was convicted for the offence punishable under Section 395 read with 397 & 450 read with 120-B read with 34 of IPC and sentenced to suffer RI for 7 years and to pay fine of 3 Appeal970.10.sxw Rs.5000/- in default to suffer RI for 1 year. He was also convicted under Section 450 of IPC and sentenced to suffer RI for 5 years and to pay fine of Rs.2000, in default to suffer further RI for 6 months. 4 In the 3rd case he was convicted for the offence punishable under Sections 452, 395, 397, 341, 342, 427, 450 read with 34 of IPC and sentenced to suffer RI for 7 years and to pay fine of Rs. 1000/- and in default to suffer further RI for 1 year. He was also convicted under Section 450 of IPC and sentenced to suffer RI for 5 years and to pay fine of Rs.1000 and in default to suffer RI for 1 year. 5 Though in the individual cases the sentence was directed to be run concurrently, in the subsequent criminal cases no order was passed by the trial Court under Section 427 of the Cr.P.C. As a result, since no order was passed in the subsequent cases under Section 427, the appellant will have to undergo 10 years of imprisonment in the first case and thereafter 7 years of 4 Appeal970.10.sxw imprisonment in the 2nd case followed by 7 years of imprisonment in the 3rd case from the date on which he has been convicted in the last two cases. The appellant has preferred criminal appeals against the order of conviction and all these appeals are pending for hearing and final disposal in this Court. In Criminal Appeal No.42 of 2006 he was arrested on 3.1.2002 and he is in custody till today. He has therefore, undergone 9 years and 10 months of sentence in the said appeal. 6 In the 2nd case in Criminal Appeal No.47/2006 he was arrested on 24.10.1998 and he was released on bail on 6.1.2000 and he was convicted on 6.11.2005. However, he is in jail since 3.1.2002 so therefore, in this case he has already undergone 2 years prior to his release on 6.1.2000 and thereafter from 3.1.2002 he is in jail. In all, he has already undergone the entire sentence. In so far as Criminal Appeal No.970/2009 he was arrested on 12.11.1998. He was released on 6.1.2000. He was however, convicted on 6.2.2007 and application has been filed by the appellant in all these 3 cases and it is prayed that this Court had 5 Appeal970.10.sxw passed an order under Section 427 directing that all the sentences are run concurrently. Learned Counsel appearing on behalf of the applicant has invited my attention to section 427 of Cr.P.C. He has also relied on the judgment of full bench of this Court in the case of Satnam Singh Puransing Gill Vs. State of Maharashtra reported in 2009 (Cri) 1351. It was submitted that full bench of this Court after relying upon judgment of the Apex Court has held that appropriate court i.e appeal Court is vested with the power to give direction for the sentences to run concurrently. He has invited my attention to paragraph nos.54, 55 & 58. 7 Learned APP has invited my attention to a letter written by the Superintendent, Kolhapur Central Prison, in which certificate has been given by the Superintendent stating that if actual sentence of the appellant is taken into consideration along with the said remission which the appellant is entitled to, in that case appellant has already undergone 16 years, 7 months and 10 days of imprisonment. Learned Counsel appearing for the appellant submitted that if the sentences are not directed to run concurrently 6 Appeal970.10.sxw then the appellant will have to undergo in all 24 years of RI. It is submitted that last conviction is dated 6.2.2007 and therefore, the appellant will have to undergo 7 years from that date i.e upto 6.2.2014. 8 Learned Counsel appearing on behalf of the appellant submits that he does not wish to challenge the order passed by the criminal Courts on merits and the only relief claimed by him is under Section 427 of the Cr.P.C for a direction that the sentences should be directed to run concurrently. 9 The Full Bench of this Court in paragraph nos.54, 55 & 58 observed as under :- “54 In various judgments of the Supreme Court and this Court, including a Division Bench judgment in the case of Sadashiv Chhokha Sable(supra), the courts have clearly stated the principle of law that the Court is vested with the power under Section 427(1) of the Code to pas an order of sentence upon a subsequent conviction, for the sentences to 7 Appeal970.10.sxw run concurrently or consecutively or concurrently instead of consecutively. Of course, these judgments also state the canons of law in consonance with which jurisdiction is to be exercised, while keeping in mind the rule that subsequent sentence of imprisonment should run consecutively to the previous sentence of imprisonment unless directed specifically to run concurrently by the Court. The provisions of Section 427 of the Code is beneficial to the accused and it also places an obligation upon the Court to consider such a plea. If the legislature intended to deprive of benefit of Section 427(1) of the Code to any classes of convicts undergoing previous sentence from the operation of Section 427(1) of the Code, the legislature would have specifically spelt out the same in the provision itself. An approach which would render under Section 427(1) of the Code or any part thereof as repugnant or ineffective would hardly be permissible. Furthermore, this power is to be exercised by the Court while ensuring that indulgence shown by the Court, with reference to the facts and circumstances of a 8 Appeal970.10.sxw given case, does not adversely affect the administration of criminal justice and does not encourage commission of such crime so as to prejudicially affect the society at large. 55 Thus, there is hardly any judgment brought to the notice of this court which lays universal principle that wherever the accused is convicted for two different transactions under two different enactments at two different points of time, then the court is divested of its power and jurisdiction under the provisions of section 427(1) of the Code. The emphasis in the language under section 427(1) is not on different offences but the application thereof is on the premise of undergoing sentence of imprisonment in a previous conviction and directing sentence of imprisonment on a subsequent conviction to run consecutively unless directed to run concurrently by the court of competent jurisdiction. The exclusion of the provisions of section 427(1) with reference to different transactions, different offences and different cases, is not comprehensible within 9 Appeal970.10.sxw the language, particularly, in view of the unambiguous and clear terms used by the legislature in section 427(1) of the Code. The section is probably intended to achieve a twin purpose, one which is beneficial to the accused where the court is expected to consider directing the imposition of subsequent sentences to run consecutively or concurrently with the previous sentence and secondly, a general and administrative concept that of overcrowded jails where under trials and convicts are lodged so as to even require the State to act in the interest of administration of criminal justice system and not to frustrate the purpose of sentencing by ill-treating the convict. These alongwith the abovereferred criteria are relevant consideration for exercise of jurisdiction but certainly are not determinative as they would have to be seen in the facts and circumstances of a given case. The court which exercises such jurisdiction has to be the court of competent jurisdiction and the matter essentially should fall within its jurisdiction. Exercise of judicial discretion pre-supposes legal and inherent 10 Appeal970.10.sxw jurisdiction to entertain such matters. 58 In view of our detailed discussion, now we proceed to answer the question referred as under :- (a) Neither the court of competent jurisdiction is divested of its power to pass appropriate order in terms of Section 427(1) of the Code of Criminal Procedure, 1973 nor does the accused lose this statutory benefit of right of consideration by the Court, only on the ground that the accused has been tried in two or more cases separately and they arise from distinct and separate offences arising out of different transactions/incidents. (b) It is neither permissible nor possible to spell out universal principle or formula which would be applicable to all cases for exercise of power vested in Court under Section 427(1) of the Code. Such power and judicial discretion has to be exercised in terms of the settled precepts of criminal jurisprudence, sentencing policy and with reference to the 11 Appeal970.10.sxw facts and circumstances of a given case, where the previous and subsequent sentences of imprisonment awarded to the accused are in two or more cases for distinct and separate offences arising out of different transactions/incidents and even under different enactments.” Perusal of the said observations of the Full Bench therefore, clearly reveals that the discretion vests in the Court of appeal to give a direction under Section 427. It is however, observed that the said discretion has to be exercised judicially after taking into consideration various factors such as gravity of the offence, circumstances under which the offence was committed. 10 In my view taking into consideration the peculiar facts and circumstances of the case, and that the appellant has already undergone 16 years, 7 months and 10 days of sentence as on 31.7.2010 and since the appellant is in jail since last 9 years and 10 months, in my view, this is a fit case where a direction can be given under Section 427 of Cr.P.C directing that the sentences awarded by the trial Court in these three criminal cases should be 12 Appeal970.10.sxw directed to run concurrently from the date of the offence. 11 So far as Criminal Appeal No.42/2006 is concerned, the appellant has already undergone 9 years and 10 months of sentence. He has completed more than 10 years of sentence if the remission is taken into consideration. 12 In so far as Criminal Appeal No.47/2006 is concerned, the appellant was arrested initially on 24.10.1998, released on bail on 6.1.2000 and re-arrested on 3.1.2002 and he is in jail thereafter. He has therefore, undergone more than 7 years of sentence awarded to him. However, since he has been convicted by a judgment and order dated 16.11.2005 and since he is yet to undergo 2 years of actual sentence. 13 In so far as Criminal Appeal No.970/2001 is concerned, he was arrested on 10.11.1998. Released on bail on 6.1.2000 and arrested again on 3.1.2002. He was however, convicted by judgment and order dated 6.2.2007. Taking into consideration the 13 Appeal970.10.sxw aforesaid fact, in my view, it would be appropriate if sentences are directed to run concurrently instead of consecutively from the date of the first offence. The appellant therefore, will have to be released since he has undergone sentence awarded in all the three cases, since it is directed that the sentences are run concurrently from the date of the first offence. The appellant therefore, be released forthwith unless he is required in any other case. Appeals are accordingly disposed of. ( V.M.KANADE,J) 14 Appeal970.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3129 OF 2010 Pappu Govind Sharma ..Applicant Vs. The State of Maharashtra ..Respondent ---- Mr.M.K.Kocharekar for the applicant. Mr.P. S. Hingorani APP for the respondent/State. ---- Coram : V. M. KANADE,J Date : 11.10.2010. PC 1 This application has been filed by the applicant who was convicted by the trial Court in five cases for the offences punishable under Sections 379, 411 read with 34 of IPC. In all five cases, applicant is a guilty for the offence of which he was charged by the trial Court. By order dated 27.7.2009 the learned 15 Appeal970.10.sxw Additional Chief Metropolitan Magistrate, Mazgaon, Mumbai convicted the applicant to undergo sentence of 1 year in all the 5 cases and to pay fine of Rs.500/- each and in default, to undergo further imprisonment of 4 months. The Superintendent of Nasik Jail has issued a certificate in which he has stated that the applicant has already undergone 1 year, 7 months and 22 days of actual imprisonment and taking into consideration the remissions which the applicant is entitled to and the sentence which he has undergone after conviction which is of 11 months and 3 days, total sentence he has undergone is 3 years and 2 months. It is submitted by the learned Counsel appearing on behalf of the applicant that in view of the judgment of the Full Bench of this Court in the case of Satnam Singh Puransing Gill Vs. State of Maharashtra, this Court may direct that sentences in all these cases may be directed to run concurrently. 2 The applicant herein has been convicted in the following cases :- 16 Appeal970.10.sxw Case No. Date of arrest 1 CC 487/PW/2009 8.3.2009 2 CC 486/PW/2009 11.3.2009 3 CC 485/PW/2009 12.3.2009 4 CC 517/PW/2009 14.3.2009 5 CC 552/PW/2009 15.3.2009 The applicant has pleaded guilty to all the charges and the learned Magistrate was pleased to convict the applicant in all these five cases on 27.7.2009 directing that he should undergo sentence of one year each in all the above cases. It is submitted that the trial Court has not however, directed that the sentence should run concurrently and has not given the benefit of provisions of Section 427 to the applicant. In my view, taking into consideration the peculiar facts and circumstances of the case, the applicant is entitled to get the benefit of provisions of section 427 of Cr.P.C taking into consideration the ratio in the judgment of the Full Bench in the case of Satnam Singh Puransing Gill (supra). Even otherwise, the applicant has undergone 3 years and 2 months of 17 Appeal970.10.sxw sentence. Hence the application is allowed and it is directed that the sentence awarded to the applicant by the Addl. Chief Metropolitan Magistrate, 46th Court, Mazgaon, Mumbai, is directed to run concurrently from the date of judgment dated 27.7.2009. The applicant has undergone one year of sentence and also in default sentence and therefore, the applicant may be released forthwith unless he is otherwise required in any other case. Application is accordingly allowed and disposed of. (V.M.KANADE,J) 18 Appeal970.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.70 OF 2010 IN CRIMINAL APPEAL NO.970 OF 2009 Mohammed Yasin @ Abu Mohammed Nasir Shaikh ..Applicant Vs. The State of Maharashtra ..Respondent ---- Mr.M.K.Kocharekar for the applicant. Mr.P.S. Hingorani APP for the respondent/State. ---- Coram : V. M. KANADE,J Date : 11.10.2010 PC 1 In view of dispoasl of main appeal, this application does not survive and stands disposed of accordingly. (V.M.KANADE,J) 19 Appeal970.10.sxw