Tuntun vs State Of U.P. & Others
2012 Latest Caselaw 2448 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 

 
Criminal Misc. Habeas Corpus Writ Petition No.12487 of 2012.
 

 
Tuntun                                                       .... Petitioner.
 
Versus
 
State of U.P. through Secretary,
 
Ministry of Home                                        .... Respondents.
 

 
Hon'ble Dharnidhar Jha, J.

Hon'ble Ramesh Sinha, J.

Heard learned counsel for the petitioner.

Petitioner Tuntun was the accused in as many as eleven criminal cases. The description of each of which has been given by the petitioner in paragraph 6 of the present petition. Those were mainly case of trespass for the purpose of committing act of theft. The petitioner confessed to his guilt on 27.9.2008 and accordingly he was held guilty after he had pleaded guilty in eight of those cases which appear at serial nos. 1 to 8. in para-6 of the present petition. The C.J.M., Gautam Budh Nagar, who was passing the order of conviction and sentence on 27.9.2008 directed the petitioner to undergo imprisonment for one year and seven months as also to pay a fine of Rs. 1,000/- and in case of non payment of fine, he had to suffer further imprisonment for one month. In cases mentioned at serial nos. 9 and 10 also the similar sentence was passed by the C.J.M., Gautam Budh Nagar against the petitioner with same default clause as regards the sentence of fine. In those two cases, the petitioner was convicted and sentenced on a different date, i.e., 15.11.2009. The petitioner was again held guilty and convicted of offences under Sections 457, 380 and 411 I.P.C. in the case which appears at serial no. 11 of paragraph 6 of the petition and the Court directed that the period spent by him in prison shall be the sentence imposed upon him. In addition to that the petitioner was directed to pay a fine of Rs. 1,000/- and if he had not paid the amount of fine he had to undergo five days imprisonment.

The petitioner submits that the petitioner was sent to jail for serving out his sentence in each of the said cases as per Section 418 Cr.P.C. The petitioner was confined since 8.2.2008. The petitioner has further stated that the period of sentence which was imposed upon the petitioner on 27.9.2008 and 15.11.2008 would come to an end on 7.10.2009 which could have included the imprisonment in lieu of fine also. But, the petitioner was still in custody and was, as such, under illegal confinement. It was contended that the petitioner has served out nine years two months and nine days since the day of his confinement and he was entitled to be released from custody.

During the course of hearing of the present petition, learned counsel appearing for the petitioner drew our attention to Section 427 Cr.P.C. which reads as under:-

"427.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 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 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.

(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."

Thus, what appears from the above provision is that if a person is undergoing a sentence of imprisonment and is again found guilty and inflicted some sentence of any particular term of imprisonment then his subsequent sentence has to run separately and independently of the previous period of sentence which such convict was undergoing on the day of passing of order of sentence upon him. If the court which had sentenced such a convicted person on the subsequent occasion or occasions has directed that the sentences which had been passed against him shall run concurrently with the previous sentence which such a convict was undergoing then only both sentences shall run concurrently. But, the above rule which emanates from Section 427 (1) Cr.P.C. appears excepted by Sub Section (2) to that particular provision as per which if the convict was undergoing imprisonment for life on account of being convicted on the earlier occasion which imprisonment he was undergoing on the day of subsequent conviction and sentence then in that exceptional case the convict shall have to spend a concurrent period with the imprisonment for life.

Now in the present case, it has been noticed that the petitioner was convicted in 11 different cases of 11 different periods on 3 dates. In 8 of the cases which appear at serials no. 1 to 8, the petitioner was convicted and sentenced on 27.9.2008 while in cases appearing at serials no. 9 and 10 he was convicted and sentenced on 15.11.2008. Similarly, in a solitary case appearing at serial no. 11, the petitioner was convicted and sentenced on 9.4.2010. Incidently, the sentence of imprisonment in most of the cases upto serial no. 10 was of one year and seven months besides a fine of Rs. 1,000/- whereas in the case which appears at serial no.11, he was directed to be sentenced for the period already undergone by him with the additional fine of Rs. 1,000/- in default whereof the petitioner had to undergo simple imprisonment for five days. What we want to point out is that the present set of facts, which are admitted by the petitioner, the petitioner was being convicted for offences on different dates and, as such, the offences could not be said to have taken place in the course of same transaction and, as such, even if, the trial had concluded in as many as eight cases on one day, i.e., 27.9.2008 and two cases on the other day, i.e., 15.11.2008 and the eleventh case on 9.4.2010, those were not on a single trial rather the trials were independent of the other. As such, the sentence are to be viewed not passed for the commission of offences which could be said to be on a single day or in one transaction. If that could not be like that, then the petitioner could not claim that he was not undergoing the sentence when he was being sentenced in the other cases. As such, in absence of any order from the Chief Judicial Magistrate, Gautam Budh Nagar, the sentences were to run separately and independently of the other.

However, the above finding recorded by us is always subject to the provisions of Section 31 Cr.P.C. which reads as under:-

"31. Sentences in cases of conviction of several offences at one trial.

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after 827 the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:

Provided that-

(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence."

We may find from the above provisions that no court is empowered to pass a sentence the aggregated of which shall exceed twice, the quantum of punishment, which a court is competent to inflict for a single offence. The Chief Judicial Magistrate, that is, the court which was passing the sentence upon the petitioner was empowered to pass a sentence as may appear from Section 29 of the Cr.P.C. of a term not exceeding seven years. We, as such, considered the whole question from the angle as to what was the maximum sentence the Chief Judicial Magistrate, Gautam Budh Nagar could have passed in all eleven cases cumulatively if the period of sentence ordered to be inflicted upon the petitioner was concerned it could be a maximum of 14 years by virtue of the combined reading of Section 29 (1) and 31 (2) Proviso (b). Here in the present case eleven orders of sentences were passed out of which in each of the 10 cases, the period of sentence inflicted upon the petitioner was one year and seven months and if the total period of sentence which was inflicted upon the petitioner in 10 cases was to be summed up it was to come to 15 years and eight months. Even if, we deduct three years and two months which could be the cumulative sentence in cases at serial nos. 9 and 10 still the C.J.M. was exceeding his sentencing jurisdiction as appears from Sections 29 and 31 of the Cr.P.C. as noted above. This was the frailty in the sentence.

But the question is, could it be corrected in exercise of powers of the court under Article 226 of the Constitution of India. In our opinion, if any jurisdictional error has crept into the record which could not be remedied under the general law on account of finality of the order of sentence which has caused a serious infringement upon the fundamental rights of a citizen, this court has to intervene in exercise of its powers under Article 226 of the Constitution of India. It is true that the petitioner was held guilty and sentenced to different terms of imprisonment by the court which was passing the sentence on two different dates, i.e., 27.9.2008 and 15.8.2008 in ten separate cases, would only have passed the total sentence of 14 years even if it had directed the sentences to run subsequent to each other or if the sentences were to run consecutively by virtue of Section 427 Cr.P.C. under the above illegality what could be the remedy available to a convict like the petitioner who is undergoing sentence which patently appears inflicted in excess of the sentencing jurisdiction of that particular court. In our considered view the petitioner has a legitimate right to seek a redressal of his grievance by coming to this court as it is not an ordinary matter which could be corrected or redressed in exercise of the appellate or revisional powers of this court under the Cr.P.C. rather passing order of sentencing upon the petitioner in excess of the court's power has already caused his confinement to a term which he could not have been authorized to be detained even by virtue of a judicial order in appropriate exercise of the jurisdiction of the Court. We are of the opinion that a writ has to be issued that the total computed sentence which has to be supposed to be passed by the C.J.M. could never exceed 14 years in the light of Sections 29 and 31 of the Cr.P.C., as such no authority could detain the petitioner more than the above period.

We also want to point out that the provision of Section 427 Cr.P.C. has never to be read in isolation of the provision of Section 428 Cr.P.C. which relates to setting off period already undergone by a convict as an under trial prisoner against the substantive sentence which has been passed upon him. Thus, what Section 428 Cr.P.C. requires is that the period of sentence which a convict is to undergo has to be calculated from the date he was confined during the trial or before that period. Thus, the sentence which he has to suffer on account of being inflicted upon him has to date back to the date he was remanded to custody by a judicial order and the period he had spent continuously or in fractions on account of being remanded to such custody by one judicial order or by different judicial orders due to various reasons. Therefore, in our opinion, when it comes to setting off the period of sentence against the period a convict had already undergone before being convicted and sentenced, has to be reckoned from the day he was first remained to custody. Thus, the convict is always to be supposed to be undergoing his sentence of imprisonment of whatever period which might have been directed to be suffered by him by any competent court. However, when it comes to setting off a period spent in prison as an under trial prisoner, the order in that behalf has not to be passed by any Judge. It is an executive order and if a set off is likelihood to be allowed in favour of any convict then the order in that behalf has to be passed by the officers of the executive. In that case, in our considered view, it could not be the direction of the court on sentence which has to be taken into consideration while granting the benefit of set off rather the total period which he had spent as an under trial prisoner in each of the cases has to be taken into account for being set off against his substantive sentence. If the accused was remanded on one day in ten different case, say for example, he cannot be deprived of the benefit of set off on the plea that he was convicted in ten different cases and the set off could be granted to him only in one case. This is the position of law, in our opinion, which has to be kept into mind by the authority, who is to adjust the period of sentence against the period already undergone under Section 428 Cr.P.C.

With the above findings and opinion, we dispose of the present petition.

Dated :-01.06.2012

Shiraz