Bombay High Court
Sanket S/O. Dipak Gupta vs State Of Maharashtra Thr. The Hon. ... on 2 August, 2017
Bench: P.N. Deshmukh
1
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.
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
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
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
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
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
