Bombay High Court
Guru Arjun Bhalerao vs The State Of Maharashtra on 13 December, 2023
Author: R. G. Avachat
Bench: R. G. Avachat
2023:BHC-AUG:26187
crwp1081.23
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1081 OF 2023
Guru s/o Arjun Bhalerao,
Age 42 years, Occ. Nil,
R/o. Mangwada, Near Laxmi
Mata Temple, Aurangabad Road
Yeola, Tq. Yeola
District Nashik
A/p. Nashik Road Central Prison,
Nashik, district Nashik ...Petitioner
versus
1. The State of Maharashtra
Through Police Station Deopur
Tq. and district Dhule
2. The Deputy Superintendent of Prison,
Nashik Road, Central Prison
Nashik 422 101 ...Respondents
.....
Mr. Rahul M. Gaikwad, advocate for the petitioner (appointed)
Mr. A.R Kale, A.P.P. for respondents.
.....
CORAM : R. G. AVACHAT AND
SANJAY A. DESHMUKH, JJ.
DATED : 13th DECEMBER, 2023.
JUDGMENT (PER SANJAY A. DESHMUKH):
-
1. Rule. Rule is made returnable forthwith. By consent of the
parties, heard finally at admission stage.
2. The petitioner has put forth the following prayers:-
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"B. By issuing appropriate writ, order or direction in the like nature
the order dated 20.02.2023 passed by learned Chief Judicial
Magistrate, Dhule, below application may kindly be quashed
and set aside in the interest of justice.
C. By issuing appropriate writ, order or direction in the like nature,
it may be directed to run the sentences in R.C.C. No. 362 of
2013 and R.C.C. No. 499 of 2013, imposed by the Judgment
and order dated 23.05.2022 by learned Chief Judicial
Magistrate, Dhule concurrently and simultaneously, in the
interest of justice."
3. The petitioner is convicted in R.C.C. No. 362 of 2013, by the
learned Chief Judicial Magistrate, Dhule by judgment and order
dated 23.05.2022 and sentenced to suffer R.I. for three years and to
pay fine of Rs.5000/- i/d to suffer S.I. for three months. He is also
convicted in R.C.C. No. 499 of 2012, by the learned Chief Judicial
Magistrate, Dhule, by judgment and order dated 23.05.2022 and
sentenced to suffer R.I. for three years and to pay fine of Rs.5000/-
i/d to suffer S.I. for three months.
4. Learned advocate for the petitioner submitted that the learned
Chief Judicial Magistrate, Dhule though decided aforesaid two cases,
did not invoke Section 427 (1) of Cr.P.C. and failed to direct to run
the said sentences concurrently in these cases. Learned advocate
further submitted that the petitioner has undergone more than three
years rigorous imprisonment and now he is directed to suffer simple
imprisonment of three months in each case for non payment of fine
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amount. He pointed out that the benefit of set off is not given by the
jail authority. Lastly, it is prayed that necessary directions be issued
to run the those sentences concurrently, including default sentence
for non payment of fine amount. He lastly prayed to allow the writ
petition.
5. Learned A.P.P. has strongly opposed the writ petition and
contended that fine amount is not paid by the petitioner. Therefore,
he has to undergo the default sentence for non paying fine amount.
He submitted that the petitioner has not preferred any appeal against
the said conviction and therefore this court cannot grant any relief as
prayed by him. Learned A.P.P. prayed for dismissal of the writ
petition.
6. Perused the judgments by which the petitioner was convicted.
The set off for the period undergone by the petitioner is 1370 days,
which appears from the judgments of conviction.
7. In Shersingh Vs State of M.P. (1989) Cri.L.J. 632, the
Hon'ble Supreme Court held that inherent powers of the High Court
can be invoked under section 482 of the Criminal Procedure Code
even if the trial Court or revision or appellate Court has not exercised
its discretion under section 427(1) of the Cr.P.C. The inherent power
of the High Court are not fettered by the section 427(1) of the Cr.P.C.
Merely because appeal is not preferred by the petitioner, his right as
per Section 427 of Cr.P.C. cannot be ignored or taken away. Thus,
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this Court has power to consider the prayers of the petitioner under
Section 482 of Cr.P.C.
8. In the case of Akash Rashtrapal Deshpande and another
vs. State of Maharashtra and another (Criminal Writ Petition No.
1036 of 2018) decided on 15.2.2019, this Court in para 21 of the
judgment, held thus:-
"21. In no way, however, we intend to interfere in
imprisonment inflicted for default in payment of fine. Section
64 of I.P.C. says of separate running of default sentence. So,
the petitioners will be required to undergo default sentence if
they will fail to pay the fine. At the same time, we want to
clarify that default sentence will run consecutively without
being affected by any of these observations."
9. As per record, the petitioner is in jail near about for 1945 days
from the date of arrest. The set off is granted to him under Section
428 of Cr.P.C. He has almost completed more than five years in jail.
For default in payment of fine also he cannot be kept behind bar
which covers in set off period. The respondent No.2 and Chief
Judicial Magistrate, Dhule ought to have considered that application
submitted to them for concurrent running of sentence in its proper
perspective. The learned Chief Judicial Magistrate, Dhule failed to
consider section 427 of Cr.P.C. in its proper perspective and also
failed to exercise the discretion in favour of the petitioner. It failed to
invoke Section 427 of Cr.P.C. in favour of the petitioner. This power
has to be exercised by the trial Courts in appropriate cases like this.
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For the reasons discussed above, the impugned order of Chief
Judicial Magistrate, Dhule deserves to be set aside.
10. Considering the facts and circumstances of the case and also
the reformative theory of the punishment, in the interest of justice, the
petition deserves to be allowed. We are inclined to allow this petition.
Accordingly, the writ petition is allowed in terms of prayer clauses "B"
and "C". The petitioner be released forthwith, if not required in any
other case.
11. Rule made absolute in the above terms.
12. Writ petition is disposed of. No costs.
13. We quantify an amount of Rs.10,000/- to be paid by the High
Court Legal Services Sub Committee, Aurangabad to the learned
advocate appointed to represent the case of the petitioner.
(SANJAY A. DESHMUKH, J.) (R. G. AVACHAT, J.)
rlj/
