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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 858 OF 2016
Sanket s/o Dipak Gupta,
aged about 28 years, occupation :
private, r/o Dhobi Pura, Gandhi
Square, Sadar, Nagpur. ... Petitioner
- Versus -
1) State of Maharashtra, through
the Hon'ble Secretary, Ministry of
Home Affairs, Mantralaya, Nariman
Point, Mumbai - 440 032.
2) The Superintendent, Nagpur
Central Jail, Nagpur. ... Respondents
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Ms. Sonali Sawre, Advocate for petitioner.
Ms. H. Jaipurkar, Additional Public Prosecutor for respondents.
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Date of reserving the judgment : 25/07/2017
Date of pronouncing the judgment : 02/08/2017
CORAM : P.N. DESHMUKH, J.
DATED : AUGUST 2, 2017
JUDGMENT :
Rule, returnable forthwith. Heard finally by consent of learned Counsel for parties.
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2) By invoking extra-ordinary writ jurisdiction of this Court under Article 226 of Constitution of India, petitioner having been convicted for the offence punishable under Section 379 of Indian Penal Code initially in Regular Criminal Case No.81/2015 and thereafter for the same offence in Regular Criminal Case No.67/2015 and awarded punishment of two years, has prayed that both the sentences awarded to him be directed to run concurrently.
3) Ms. Sawre, learned counsel for petitioner, has submitted that learned Magistrate has failed to consider provisions of Section 427 of Code of Criminal Procedure and as such, has committed grave error of law by not giving benefit of said provision and as such, it has resulted into failure of justice. It is contended that as petitioner was convicted on his plea of guilt in both criminal cases, sentence of two years awarded to him should have been directed to run concurrently. However, learned trial Judge has failed to consider this aspect and committed serious illegality and as such, has not adhered to the provisions of Code of Criminal Procedure as Court has power for allowing sentences in different cases to run concurrently.
4) Facts, in brief, are that petitioner came to be tried for the offence punishable under Section 379 of Indian Penal Code in Regular ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:34:49 ::: 3 Criminal Case No.81/2015 and thereafter in Regular Criminal Case No.67/2015. On filing of charge-sheets in these cases by prosecution during the course of trial, petitioner admitted his guilt in both the cases and placed on record applications to that effect and learned trial Judge considering the same, by its judgments dated 15/9/2015 convicted petitioner for the offence punishable under Section 379 of Indian Penal Code and awarded rigorous imprisonment for two years and imposed fine of Rs.2000/- in each case. Judgment in Regular Criminal Case No.67/2015 also came to be passed on the same date imposing punishment as aforesaid. However, sentence imposed upon petitioner in Regular Criminal Case No. 67/2015 was not directed to run concurrently, i.e. along with sentence imposed in Regular Criminal Case No.81/2015.
5) Ms. Sawre, learned Counsel for petitioner, has made a statement that there is no challenge to these judgments passed by learned Magistrate and in view of provisions of Section 427 of Code of Criminal Procedure, suitable directions be issued by allowing the petition. In support of her submissions, learned Counsel for petitioner has relied upon judgment of Division Bench of this Court in Abidkhan @ Salman Mukhtar Khan Pathan vs. State of Maharashtra and another (2013 (3) Mh.L.J. (Cri.) 237) wherein petitioner was convicted in three criminal cases by the same Court and prayer in that petition was for issuance of direction to run sentences imposed concurrently. Conviction was based ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:34:49 ::: 4 on voluntary plea of guilt of accused. However, no benefit of Section 427 of Code of Criminal Procedure was granted by learned trial Court and hence, in that petition relief as sought was granted to petitioner, thereby issuing direction that substantive sentences imposed upon petitioner in different cases to run concurrently. In the said judgment, Division Bench has referred to judgment of Hon"ble Apex Court in Mohd. Akhtar Hussain vs. Assistant Collector of Customs (Prevention), Ahmedabad and others (AIR 1988 SC 2143) wherein scope of Section 427 of Code of Criminal Procedure was duly considered.
6) Ms. Jaipurkar, learned Additional Public Prosecutor for respondent, has opposed the petition and submitted that this is not the appropriate case warranting interference in the judgment and order as petitioner is a habitual criminal .
7) In the backdrop of submissions as aforesaid, on considering relevant provisions, plain reading of sub-section (1) of Section 427 of Code of Criminal Procedure reveals that said provision confers power upon Court to direct concurrent running of subsequent sentence with previous sentence of imprisonment and this power being discretionary in nature, has to be exercised prudently in appropriate cases. In the case in hand, admittedly petitioner came to be sentenced for a period of two years on his plea of guilt and learned trial Judge in a subsequent judgment ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:34:49 ::: 5 passed in Regular Criminal Case No. 67/2015 though on the same date, has not considered this aspect by directing sentence imposed upon petitioner to run concurrently with previous sentence. In view of facts aforesaid, thus it is found that though there exists power and though it was obligatory on the part of the learned trial Court to consider the same by applying its mind, no such procedure is adopted. Insofar as availability of discretionary power under Section 427 of Code of Criminal Procedure is concerned, reference can usefully be made to the case of Paramjeet Singh vs. State of Rajasthan (2007 Cri.L.J. 591) and to the view taken by Division Bench in Navnit Madhukar Naik and another vs. State of Maharashtra (2013(2) Mh.L.J. (Cri.) 296).
8) Having considered the provisions as aforesaid, it is found that learned trial Court ought to have considered the provisions of sub-section (1) of Section 427 of Code of Criminal Procedure and extended benefit of discretionary power to petitioner, which since is apparently found to have not considered, there is no substance in the arguments of learned Additional Public Prosecutor for respondents.
9) The criminal writ petition is, therefore, liable to be allowed by issuing directions that sentence of two years imposed upon petitioner in Regular Criminal Case No.67/2015 by learned Judicial Magistrate, First Class (Railway), Nagpur shall run concurrently, i.e. along with sentence ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:34:49 ::: 6 of two years imposed upon petitioner in Regular Criminal Case No.81/2015. To this extent, impugned order passed by learned trial Court stands modified.
10) Rule is made absolute in the above terms. No order as to costs.
Learned Counsel Smt. Sawre for petitioner (appointed) has aptly assisted this Court for the just decision in the petition. Legal fee payable to learned Counsel Smt. Sawre is quantified as rupees three thousand.
JUDGE khj ::: Uploaded on - 05/08/2017 ::: Downloaded on - 06/08/2017 00:34:49 :::