Mahesh Rav Tripathi vs State Of U.P.
2017 Latest Caselaw 2608 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							   AFR
 
							Reserved 
 

 
1. Criminal Revision No.213 of 2001
 
Mahesh Rav Tripathi 
 
son of Om Prakash Tripathi, 
 
resident of Anapur, P.S. Bakewar, 
 
District Etawa                               .........Revisionist
 
                          Vs. 
 
State of U.P.                     ....................Opposite party 
 
                          AND
 
2. Criminal Revision No.214 of 2001
 
Mahesh Rav Tripathi 
 
son of Om Prakash Tripathi, 
 
resident of Anapur, P.S. Bakewar, 
 
District Etawa                               .........Revisionist
 
                          Vs. 
 
State of U.P.                              ..........Opposite party
 
                          AND
 
3. Criminal Revision No.215 of 2001
 
Mahesh Rav Tripathi 
 
son of Om Prakash Tripathi, 
 
resident of Anapur, P.S. Bakewar, 
 
District Etawa                               .........Revisionist
 
                         Vs. 
 
State of U.P.                                  .....Opposite party
 
                           xxxx
 
Hon'ble Anil Kumar Srivastava-II,J.  

1. Heard Shri Samrat Gupta, holding brief of Sri Atual Verma, learned counsel for the revisionist, learned AGA, Shri Bireshwar Nath, learned counsel appearing for Central Bureau of Investigation and perused the record.

2. All the three revisions are connected, which have been heard together, hence they are being disposed of by a common judgment.

3. Accused- revisionist Mahesh Rav Tripathi was convicted and sentenced by learned Special Judicial Magistrate (CBI), Lucknow vide judgment and order dated 07.3.2001 passed in Criminal Case No.113/1999, (State through C.B.I. Vs Mahesh Rav Tripathi) arising out of RC 14(S)/94 under section 120B/420,467,468 and 471 IPC, Police Station CBI, SPE, Lucknow and Criminal Case No. 118 of 2000 (State through CBI Vs. Mahesh Rav Tripathi) arising out of RC No. 28 (S)/97 under section 120B/420/467/468/471 IPC, Police Station CBI, SPE, District Lucknow, respectively, wherein he was convicted and sentenced under section 420 IPC to three years' rigorous imprisonment and a fine of Rs.2,000/-, with default stipulation of six months' rigorous imprisonment, under section 467 IPC for three years' rigorous imprisonment and a fine of Rs.2000/-, with default stipulation of six months' rigorous imprisonment, under section 468 IPC for two years' rigorous imprisonment and a fine of Rs.1000/-, with default stipulation of three months' rigorous imprisonment and under section 471 IPC two years' rigorous imprisonment and a fine of Rs.1,000/-, with default stipulation of three months' rigorous imprisonment. All the sentences were directed to run concurrently.

4. Accused-revisionist Mahesh Rav Tripathi was also convicted and sentenced by Special Judicial Magistrate(C.B.I.) vide judgment and order dated 07.3.2001 passed in Criminal Case no.59/2000 (State through CBI Vs. Mahesh Rav Tripathi) arising out of RC No. 29 (S)/97 under section 120B/420/467/468/471 IPC, Police Station CBI, SPE, District Lucknow, wherein he was convicted and sentenced under section 420/511 to two years' rigorous imprisonment and a fine of Rs. 1000/-, with default stipulation of six months' rigorous imprisonment, under section 467 IPC for three years' rigorous imprisonment and a fine of Rs.2000/-, with default stipulation of six months' rigorous imprisonment, under section 468 IPC for two years' rigorous imprisonment and a fine of Rs.1000, with default stipulation of three months' rigorous imprisonment and under section 471 IPC for two years' rigorous imprisonment and a fine of Rs.1000/- with default stipulation of three months' rigorous imprisonment. All the sentences were directed to run concurrently.

5. In all the aforesaid three cases, order of conviction and sentence was passed on the basis of confession made by the accused. In all the three cases, accused was convicted and sentenced for cheating the bank by withdrawing amount in excess to the actual amount involved in the bank draft. Accused was prosecuted by the CBI, wherein he confessed his guilt. Accordingly, sentences were awarded to the accused revisionist as above.

6. Feeling aggrieved, Criminal Appeal Nos. 17 of 2001, 15 of 2001 and 16 of 2001 were preferred by the accused revisionist, which were pressed on the point of sentence only.

7. Criminal Appeal Nos. 17 of 2001 and 15 of 2001 were dismissed by the learned Additional Sessions Judge, Lucknow, vide judgment and order dated 30.4.2001 and 304.2001, respectively. Criminal Appeal No. 16 of 2001 was partly allowed by the learned Additional Sessions Judge, Lucknow, vide judgment and order dated 30.4.2001, wherein conviction and sentence under section 420/511 IPC was modified to the extent of one year's rigorous imprisonment in place of three years' rigorous imprisonment and fine of Rs. 1000/- in place of Rs. 2000/-, with default stipulation of six months' rigorous imprisonment and under section 467 IPC sentence was modified to the extent of two years' rigorous imprisonment in place of three years' rigorous imprisonment and fine of Rs. 2000/- , with default stipulation of six months' additional rigorous imprisonment.

8. Feeling aggrieved accused revisionist has preferred the revisions in all the three cases.

9. Pending revision an application was moved by the accused revisionist that he has already served out the sentences, as awarded by the learned trial court and confirmed and modified by the learned appellate court.

10. It is submitted that since the accused was convicted and sentenced in all the three cases separately and there is no order for concurrent sentence , accused be released on the basis of the period undergone by him in jail, which was awarded by the learned trial court and confirmed and modified by the learned appellate court.

11. Learned counsel for the revisionist submits that revisionist has already undergone more than three years' rigorous imprisonment as has been awarded by the courts below. It is further submitted that in all the three cases accused revisionist has confessed his guilt. Sentences should have been made concurrent.

12. Learned counsel for the revisionist has placed reliance upon Hanoo alias Hari Narain Vs. State of Uttar Pradesh, 1998 Cri.L.J. 94 (Allahabad High Court) and Popular Muthiah VS. State represented by Inspector of Police, (2006) 7 SCC 296.

13. Shri Bireshwar Nath, learned counsel appearing for C.B.I. did not dispute the factual position that the accused revisionist has already completed more than three years' imprisonment in jail.

14. In Popular Muthiah' case (Supra), it was held as under:-

"While exercising its appellate power, the jurisdiction of the High Court although is limited but, in our opinion, there exists a distinction but a significant one being that the High Court can exercise its revisional jurisdiction and /or inherent jurisdiction not only when an application therefor is filed but also suo motu. It is not in dispute that suo motu power can be exercised by the High Court while exercising its revisional jurisdiction. There may not, therefore, be an embargo for the High Court to exercise its extraordinary inherent jurisdiction while exercising other jurisdictions in the matter.

It was further held in paras 29 and 30 as under:-

"29. The High Court while, thus, exercising its revisional or appellate power, may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite, both in relation to substantive as also procedural matters.

30. In respect of the incidental or supplemental power, evidently, the High Court can exercise its inherent jurisdiction irrespective of the nature of the proceedings. It is not trammelled by procedural restrictions in that:

(i) Power can be exercised suo motu in the interest of justice. If such a power is not conceded, it may even lead to injustice to an accused.

(ii) Such a power can be exercised concurrently with the appellate or revisional jurisdiction and no formal application is required to be filed therefor.

(iii) It is, however, beyond any doubt that the power under Section 482 of the Code of Criminal Procedure is not unlimited. It can inter alia be exercised where the Code is silent, where the power of the court is not treated as exhaustive, or there is a specific provision in the Code; or the statute does not fall within the purview of the Code because it involves application of a special law. It acts ex debito justitiae. It can, thus, do real and substantial justice for which alone it exists."

15. High Court while exercising its revisional and appellate powers may exercise its inherent powers. Inherent power of the High Court can be exercised, it is trite both in relation to substantive as also procedural matters, as has been held in Popular Muthiah's case (supra).

16. Section 427 of the Code of Criminal Procedure lays down that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment shall commence at the expiration of the imprisonment to which he had been previously sentenced unless the Court directs that the subsequent sentence shall run concurrently with such previous conviction. However, Sub-section (1) of section 427, Cr.P.C. makes it discretionary with the Court to make a sentence consecutive or concurrent with the previous sentence.

17. In the instant case, learned Magistrate has not passed an order that the sentences passed against accused revisionist in three different cases shall run concurrent.

18. The general rule is that a sentence commences to run from the time of its being passed but Section 427 of the Cr.P.C. creates an exception in the case of persons already undergoing imprisonment and postpones operation of the subsequent sentence until after the expiry of the previous sentence .

19. In Full Bench decision of this Court reported in 1974 Cri LJ 1397, Mulaim Singh Vs. State, it was held as under:-

"It would be competent for the High Court in exercise of its inherent power to direct that the sentence of imprisonment under a subsequent conviction shall run concurrent with a previous sentence even if the stage for exercise of discretion under Section 397(1) of the old code (Section 427(1) of the new Code) is over in circumstances where it would serve any of the three purposes mentioned in Section 561-A of the old Code (Section 482 of the new Code) i.e. to give effect to any order under the code, or to prevent the abuse of process of the Court or otherwise to secure the ends of justice. It was further observed that it would be proper exercise of discretion in exercise of inherent power to' make the sentence on subsequent conviction to run concurrently with the previous sentence where separate trials held for each offences which while constituting a distinct offences are inherently or intimately connected with each other.

In the light of these observations of reference may profitably be made to a decision of Kerala High Court reported in 1983, Cri LJ 1262, Mani v. State of Kerala in which it was held that it would be competent for the High Court in exercise of its inherent power to direct that. the sentence in subsequent con viction to imprisonment may run concurrently with the previous sentence even if the stage for exercise of discretion under Section 427 of the Code is over in circumstances where it would serve any of the three purposes mentioned in Section 482. There is yet another case reported in 1983 Cri LJ 527 (Orissa) Basudeb v. State of Orissain which it was observed by the Orissa High Court that there is no clear restriction in the Code of Criminal Procedure itself that direction to make consecutive sentences concurrent cannot be given in exercise of inherent power. Such a direction does not touch the merit of the matter and proceed on the acceptance of the judgment of conviction as also quantum of sentence. The inherent power vested in the Court is obviously intended for superintending the administration of criminal justice within the jurisdiction of the Court with a view to ensuring that ultimate justice is done. If the superior Court is not given this power there may be cases where the same accused would suffer convictions in different Courts and where judgment would be delivered by two separate Courts on the same date or near about it may not be possible for the original Court to deal with the case after there have been previous convictions to take note of the sentence awarded in other cases and modulate its own sentence accordingly."

20. In recent judgment dated 11.7.2017 rendered in Criminal Appeal Nos. 1102-1104 of 2017( arising out of S.L.P. (Crl.) Nos. 2034-2036 of 2016), P.N. Mohanan Nair Vs. State of Kerala, Hon'ble the Apex Court has relied upon V.K. Bansal Vs. State of Haryana and another, (2013) 7 SCC 211 followed in Shyam Pal Vs. Dayawati Besoya, (2016) 10 SCC 761 and Benson Vs. State of Kerala, (2016) 10 SCC 307." It was held that "section 427(1), Cr.P.C. stipulates that where a person undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, it shall commence at the expiration of the imprisonment previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence. The jurisdiction being discretionary must be exercised on fair and just principles in the facts of a case."

21. In the instant case, accused was convicted and sentenced in three cases on the basis of his confessional statement. At the time of recording of statement under section 313 Cr.P.C. in 2001, the age of the accused was about 30 years. Now he is about 50 years.

22. Revisionist was sentenced for different period. The maximum period is three years. He was convicted and sentenced on the same day by the learned trial court. Learned trial court did not make specific order to make the sentences to run concurrently, although all the sentences were passed on the same day. Appeals against the order of conviction and sentence were also heard and decided by the same person as Additional Sessions Judge on one day, but there is no order passed for running the sentences concurrently. It would be in the interest of justice that the sentences as awarded to the accused revisionist should be made concurrent.

23. Accordingly, criminal revisions are allowed to the extent that the sentences as awarded to the accused revisionist in Criminal Case Nos. 113 of 1999, 59 of 2000 and 118 of 2000, which were confirmed in Criminal Appeals Nos. 17 of 2001, 15 of 2001 and 16 of 2001 shall run concurrently. Accused revisionist is reported to be on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged.

24. Let a copy of this judgment alongwith the lower court record be sent to the learned trial court forthwith by the office to ensure the compliance of this judgment. Learned trial court shall send the compliance report within eight weeks.

Order date: 21.7.2017 [Justice Anil Kumar Srivastava-II.]

GSY