Crl.Rev.No.2071 of 2010 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.Rev.No.2071 of 2010 Date of decision: 25.8.2010. Abid Mohd. ....................Petitioner v. State of UT and others .....................Respondents Coram: Hon'ble Mr.Justice Jaswant Singh Present: Mr.Deepak Sahni,Advocate for the petitioner. Jaswant Singh.J.(Oral) Present revision petition under Section 401 Cr.PC has been filed by the petitioner challenging the order dated 11.2.2010 passed by learned Additional Sessions, whereby the appeal filed by the petitioner challenging the judgment of conviction and order of sentence dated 11.11.2009 passed by CJM,Chandigarh, was dismissed. Briefly noticed the facts leading to the filing of this revision petition are that while facing prosecution in case FIR No.109 dated 23.2.2003 under Sections 474,120-B IPC, Sections 3,4 and 6 of the Official Secrets Act and Section 14 of the Foreigners Act,1946, the petitioner was lodged in Burail Jail,Chandigarh. On the intervening night of 21/22.1.2004, four under trials namely Jagtar Singh Hawara, Crl.Rev.No.2071 of 2010 2 Jagtar Singh Tara, Paramjit Singh Bheora and Devi Singh, who were facing trial in Beant Assassination case escaped from Burail Jail by digging a tunnel. During investigations it transpired that the petitioner alongwith other inmates had helped those escapees by digging a tunnel and accordingly FIR No.17 dated 27.1.2004 was registered against the petitioner and others at PS Sector 34, Chandigarh. Upon completion of investigation challan was presented against the petitioner and others under Sections 121, 121-A,123, 217, 221, 223, 224, 452,457 and 120-B IPC. However, later on charges under Sections 121, 121-A,123, 221 and 223 were dropped against all the accused and the petitioner was charge sheeted under Sections 224 IPC read with Section 120-B IPC, which are triable by Magistrate. During trial on 11.11.2009 petitioner made a confessional statement admitting his guilt. Accordingly, learned CJM, Chandigarh vide order dated 11.11.2009 held petitioner guilty of having committed offences punishable under Section 224 read with Section 120-B IPC. For the said offences the petitioner was sentenced to undergo RI for two years. The said imprisonment was ordered to commence at the expiration of the imprisonment of the previous case, if the petitioner- convict has been previous convicted/sentenced. It was further ordered that in case petitioner-convict had not been previously convicted/sentenced in any other case, then the period of custody may be set off from the period of sentence. Crl.Rev.No.2071 of 2010 3 It is precisely against the sentence part that the petitioner preferred an appeal which was dismissed by the learned Additional Sessions Judge, Chandigarh vide order dated 11.2.2010. Hence the present revision petition. It is submitted by the learned counsel that the condition imposed by learned CJM in the judgment and order dated 11.11.2009 and upheld by the learned Additional Sessions Judge in the impugned order dated 11.2.2010, that the sentence of two years RI awarded to the petitioner for the offences punishable under Sections 224 read with Section 120-B IPC, shall commence after the expiration of the previous imprisonment, is not sustainable in the eyes of law in view of provisions of Section 428 Cr.PC, and hence the said condition is liable to be set aside. It was further argued that keeping in view the provisions of Section 427 Cr.PC, the petitioner is entitled to have his two sentences run concurrently. Before proceeding further in the matter, it would be appropriate to refer to Section 224 IPC, under which the petitioner has been sentenced in the present case, as also Sections 427 and 428 Cr.PC, which are reproduced hereunder:- Section 224 IPC. Resistance or obstruction by a person in his lawful apprehension.- Whoever intentionally offers any resistance or illegal obstruction to the lawful Crl.Rev.No.2071 of 2010 4 apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Explanation.- The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted. XXXXXXXXXXXXXXXXXXXXXXXXX Section 427 Cr.PC.- Sentence on offender already sentenced for another offence.- (1) 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 Crl.Rev.No.2071 of 2010 5 previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in dealt of furnishing security, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediat4ely. (2) 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. Section 428 Cr.PC.- Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of Crl.Rev.No.2071 of 2010 6 fine,] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the dat4e of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to be remainder, if any, of t4he term of imprisonment imposed on him. [Provided that in cases referred to in section 433A, such period of detention shall be set off against the period of fourteen years referred to in that section.] XXXXXXXXXXXXXXXXXXXXXXXXXX Having heard learned counsel for the petitioner, in my considered opinion, in view of the explanation attached to Section 224 IPC, the punishment in this section being in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted, the sentence imposed upon the petitioner for the offence punishable under Section 224 read with Section 120-B IPC, cannot be ordered to run concurrently. It is further evident that Crl.Rev.No.2071 of 2010 7 Section 427 Cr.PC provides that a subsequent sentence of convict undergoing sentence shall not run concurrently with the previous sentence unless so ordered by the Court in the subsequent proceedings. In the present case no such order has been passed. The benefit of Section 428 Cr.PC also would not accrue as the petitioner was already undergoing sentence in a previous case when he committed the present offence under Section 224 read with Section 120-B IPC. The undisputed facts of the present case are that the petitioner already stood convicted for a period of seven years in case FIR No.109 dated 23.2.2003 under Sections 474,120-B IPC, Sections 3,4 and 6 of the Official Secrets Act and Section 14 of the Foreigners Act,1946, vide order dated 9.3.2009 and thereafter he was convicted in the present case for the offences punishable under Section 224 read with Section 120-B IPC, vide judgment and order dated 11.11.2009, passed by learned CJM,Chandigarh, whereby it was specifically ordered that imprisonment in the present case shall commence at the expiration of the imprisonment of the previous case. Therefore, the order dated 11.11.2009 passed by learned CJM is in terms of Section 427 Cr.PC and not in violation of the same. The benefit of Section 428 Cr.PC also would not ensue to the petitioner as he has not undergone any period of detention during investigation, enquiry or trial in present case under Section 224 read with Section 120-B IPC as he was already in custody undergoing sentence in compliance of order dated 9.3.2009 Crl.Rev.No.2071 of 2010 8 passed in FIR No.109 dated 23.2.2003. Still further, the explanation to Section 224 IPC clinches the issue by stipulating that the punishment under Section 224 IPC is in addition to the offence for which the petitioner was earlier convicted and sentenced. In view of the aforesaid factual and legal position, I am of the considered opinion, that no case for interference is made out in the present revision petition, which is hereby dismissed. 25.8.2010 (Jaswant Singh) joshi Judge