[Cites 27, Cited by 0]
Bombay High Court
Mohammad Naved @ Gabya Mohammad Abdul ... vs State Of Mah. Thr. Its Secretary Home ... on 5 May, 2026
2026:BHC-NAG:6909-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 18 OF 2023
Shri Mohammad Naved @ Gabya
Mohammad Abdul Kadir,
Aged about 38 years,
Occ: Nil, (C/5306, (presently in
Central Prison Amravati). PETITIONER
// V E R S U S //
1. State of Maharashtra,
Through its Secretary, Home RESPONDENTS
Department, Mantralaya,
Mumbai-32
2. Superintendent of Jail,
Central Prison, Amravati, District
Amravati
-------------------------------------------------------------------------------------------
Mr. Raju Kadu, Advocate for the petitioner.
Mr. S.S. Doifode, APP for respondents /State.
-----------------------------------------------------------------------------------------
CORAM : URMILA JOSHI PHALKE AND
NIVEDITA P. MEHTA, J.J.
JUDGMENT RESERVED ON:- 28.04.2026
JUDGMENT PRONOUNCED ON:- 05.05.2026
ORAL JUDGMENT :
1. Heard.
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2. Rule. Rule made returnable forthwith. Taken up for
final disposal with the consent of learned counsel for the parties.
3. The present petition is preferred by the petitioner for
seeking direction to the respondent Nos.1 and 2 that petitioner
shall run all sentences of substantive imprisonment passed in
various criminal cases decided by Judicial Magistrate First Class,
Wani, District Yavatmal concurrently with the sentences passed in
Criminal Case RCC No.112/2017 decided by Judicial Magistrate
First Class, Wani, District Yavatmal.
4. The petitioner was involved in committing thefts and
house breaking thereby charge of having committed offences on
different occasions was separately tried in RCC No.112/2017,
136/2017, 111/2017, 135/2017, 96/2017, 114/2017, 113/2017,
266/2021 and 269/2021. By separate judgments, the petitioner
was convicted and sentenced in each of the aforesaid crimes.
The following chart would disclose the relevant details.
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Case Name of Date of Convicted un- Imprisonment & Fine Sentence how to run Set off
No. Court Judg- der Section granted
ment
RCC/ JMFC (Court 8.1.18 380 & 457 read For Sec. 380 IPC :- The substantive sen- From
112/17 No. 2), with section 34 R.I. for 3 years & fine tence shall run concur- 23.03.17
Wani, Dist. of the IPC of Rs.1000/- in default rently. to
Yavatmal to suffer impri. for 1 08.01.18
{theft of cash & month [trial court heard the
goods from accused before senten-
shop} For Sec. 457 IPC:- cing him ]
R.I. for 3 years & fine
of Rs.1000/- in default
to suffer impri. for 1
month
RCC/ JMFC (Court 8.1.18 380 & 457 read For Sec. 380 IPC :- The substantive sen- From
136/17 No. 2), with Section 34 R.I. for 2 years & fine tence shall run concur- 23.03.17
Wani, Dist. of the IPC of Rs.1000/- in default rently. to
Yavatmal to suffer impri. for 1 08.01.18
{theft of cash & month [trial court heard the
general articles accused before senten-
from shop} For Sec. 457 IPC:- cing him ]
R.I. for 2 years & fine
of Rs.1000/- in default
to suffer impri. for 1
month
RCC/ JMFC, Wani, 15.1.18 380 & 457 IPC For Sec. 380 IPC :- Not stated From
111/17 Dist. R.I. for 3 years & fine 23.03.17
Yavatmal {theft of cash & of Rs.2000/- in default [trial court heard the to
DVR record of to suffer R.I. for 1 accused before senten- 15.01.18
cctv from shop month cing him ]
For Sec. 457 IPC:-
R.I. for 3 years & fine
of Rs.2000/- in default
to suffer R.I. for 1
month
RCC/ JMFC, Wani, 23.4.18 380 IPC R.I. for 3 years & fine [trial court heard the From
135/17 Dist. {theft - cash , of Rs.2000/- in default counsel for accused be- 23.03.17
Yavatmal clothes & DVR to suffer R.I. for 1 fore sentencing him ] to
record from month 23.04.18
shop }
RCC/ JMFC (Court 24.5.18 380 & 457 IPC For Sec. 380 IPC :- Sentence shall run sub- From
96/17 No. 3), R.I. for 2 years & fine sequently 23.03.17
Wani, Dist. {theft of cash of Rs.1000/- in default to
Yavatmal from shop} to suffer R.I. for 1 [trial court heard the 24.05.18
month accused before senten-
cing him ]
For Sec. 457 IPC:-
R.I. for 2 years & fine
of Rs.1000/- in default
to suffer R.I. for 1
month
RCC/ JMFC (Court 24.5.18 380 & 457 IPC For Sec. 380 IPC :- Sentence shall run con- From
114/17 No. 3), R.I. for 2 years & fine currently 23.03.17
Wani, Dist. {theft of silver of Rs.1000/- in default to
Yavatmal idol of lord to suffer R.I. for 1 [trial court heard the 24.05.18
Ganesha & month accused before senten-
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Godess Laxmi cing him ]
from shop} For Sec. 457 IPC:-
R.I. for 2 years & fine
of Rs.1000/- in default
to suffer R.I. for 1
month
RCC/ JMFC, Wani, 29.6.18 380 & 457 IPC For Sec. 380 IPC :- Substantive sentence From
113/17 Dist. R.I. for 3 years & fine shall run concurrently 23.03.17
Yavatmal {theft of one of Rs.2000/- in default with the previous sen- to
iball company to suffer R.I. for 1 tence i.e. sentence 29.06.18
U.P.S. & 2 elec- month passed in RCC/111/17
tric boards from vide Sec. 427(1) CrPC
school} For Sec. 457 IPC:-
R.I. for 3 years & fine [trial court heard the
of Rs.2000/- in default counsel for accused be-
to suffer R.I. for 1 fore sentencing him ]
month
RCC/ JMFC, Wani, 10.12.2 379 IPC R.I. for 3 years and [trial court heard the Deten-
266/21 Dist. 4 fine of Rs. 500/- in de- accused before senten- tion
Yavatmal {theft of Vehicle fault to suffer simple cing him ] period of
TATA Ace} imprisonment for 1 21.11.21
month to
17.02.22
and
10.06.23
to
11.12.24
RCC/ JMFC, Wani, 10.12.2 380 IPC R.I. for 3 years and [trial court heard the Deten-
269/21 Dist. 4 fine of Rs. 500/- in de- accused before senten- tion
Yavatmal {theft of 7 bags fault to suffer simple cing him ] period of
rice from gor- imprisonment for 1 21.11.21
cery shop } month to
17.02.22
and
10.06.23
to
11.12.24
5. As per the contention of the petitioner, he was
arrested on 23.03.2017 and thereafter he was taken in custody on
production warrants in different cases. In all, he was arrested in
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nine cases and since 23.03.2017 he is in jail. He belongs to the
poor family having other family members in the house.
In so far as crime No.283/2017 registered at Wani
Police Station he was tried for the offence punishable under
Sections 380 and 457 read with Section 34 of the IPC vide RCC
No.112/17 and was convicted for the said offences on 08.01.2018
and directed to undergo sentence rigorous imprisonment for
three years and fine of Rs.1,000/- in default to suffer R.I. for one
month.
In connection with crime No.282/17 having RCC
No.136/2017 under Sections 380 and 457 of the IPC, he was
convicted by the Judicial Magistrate Court No.2 Wani and
sentenced to suffer R.I. for two years and fine of Rs.1,000/- in
default to suffer R.I. for one month on 08.01.2018. In connection
with Crime No.1065/16 he was tried for the offences punishable
under Sections 457 and 380 of the IPC in RCC No.111/17 and by
judgment dated 15.01.2018 he was convicted and sentenced to
suffer RI for three years and fine of Rs.2,000/- in default to suffer
R.I. for one month.
In crime No.274/17 for the offences punishable under
Sections 461 and 380 read with Section 34 of the IPC vide RCC
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No.135/2017 before Judicial Magistrate First Class, Wani, he was
convicted and sentenced to suffer R.I. for three years and fine of
Rs.2,000/- in default to suffer R.I. for two months by the
judgment dated 23.04.2018.
In connection with Crime No.168/17 by Judicial
Magistrate First Class Court No.3, Wani, in RCC No.96/17 he was
convicted for the said offence on 24.05.2018 and sentenced to
suffer R.I. for two years and fine of Rs.1,000/- in default to suffer
R.I. for one month. In connection with Crime No.106/17 under
Sections 380 and 457 having RCC No.114/17 by the judgment
dated 24.05.18 he was convicted and sentenced to suffer R.I. for
two years and fine of Rs.1,000/- in default R.I. for one month.
Crime No.112/17 having RCC No.113/17 registered under
Sections 457 and 380 of the IPC which was tried before Judicial
Magistrate First Class, Wani and by judgment dated 29.06.2018 he
was convicted and sentenced to suffer R.I. for three years and fine
of Rs.2000/- in default to suffer R.I. for one month.
In connection with crime No.978/21 registered at
Police Station, Wani he further convicted of the offence
punishable under Sections 379 and 75 of the IPC in RCC
No.266/21 before the Judicial Magistrate First Class, Wani District
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Yavatmal and he was convicted for the said offence on 10.12.2024
and sentenced to suffer R.I. for three years and fine of Rs.500/-
and in default to suffer to RI for one month.
Crime No.979/21 was also registered at Wani Police
Station District Yavatmal wherein he was tried for the offences
punishable under Sections 380, 461 and 75 of the IPC having RCC
No.269/21 and sentenced to suffer RI for three years and fine of
Rs.500/- in default to suffer R.I. for one month by judgment
dated 10.12.2024.
6. The petition was filed with contention that on a plain
reading of Section 427 of the Code of Criminal Procedure makes it
clear that ordinarily subsequent sentence of imprisonment
commences at the expiration of the imprisonment, not being life
imprisonment, to which a person has been previously sentenced
unless the Courts directs that the subsequent sentence shall run,
concurrently with such previous sentence. Considering the legal
provisions and considering the fact that petitioner belongs to poor
part of the society his family is dependent on him it is necessary to
direct that the subsequent sentence to run concurrently with the
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previous sentences and therefore, the directions be given to the
respondent Nos.1 and 2.
7. This petition is strongly opposed by the State on the
ground that the present petitioner was convicted by separate
judgments on different dates. It is a discretion of the Court which
was exercised by the Court and therefore, petition deserves to be
dismissed.
8. Learned counsel for the petitioner submitted his
written submissions and placed reliance on the various judgments
and submitted that in view of Section 427 of the Code of Criminal
Procedure, the sentences directed to be run concurrently and
therefore, the direction is required to be given to the respondents.
In support of his contentions he placed reliance on O.M. Cherian
@ Thankachan vs. State of Kerala and others reported in (2015) 2
SCC 501, Mohd. Zahid vs. State through NCB reported in (2022)
12 SCC 426, State of NCT of Delhi vs. Khimji Bhai Jadeja reported
in 2020 ALL MR (Cri) Journal 79.
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9. Per contra, learned APP submitted that being the
petitioner is the habitual offender, no such benefit can be
extended to him. In support of his contention, he placed reliance
on the judgments in the case of Jitendrakumar Anilkumar Singh
and another Vs. State of Maharashtra and ors. in Criminal Writ
Petition No.55/2025 decided on 19.11.2025, Benson vs. State of
Kerala reported in (2016) 10 SCC 307 and Mohd. Zahid vs. State
Through NCB reported in (2022) 12 SCC 426.
10. After hearing the submissions of the learned counsel
for the petitioner as well as learned APP for the State and before
entering into the merits of the matter, it would be relevant to refer
Section 427 of the Code of Criminal Procedure 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
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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."
10. In terms of sub-section (1) of 427, if a person already
undergoing a sentence of imprisonment is sentenced on a
subsequent conviction to imprisonment, such subsequent term of
imprisonment would normally commence at the expiration of the
imprisonment to which he was previously sentenced. Going by
this normal principle, the sentence chart indicated in the earlier
portion of the judgment shows that normal rule is subject to a
qualification and it is within the powers of the Court to direct that
the subsequent sentence shall run concurrently with the previous
sentence. In V.K. Bansal vs. State of Haryana reported in (2013) 7
SCC 211 wherein it was observed by the Hon'ble Apex Court "It is
manifest from Section 427(1) that the Court has the power and
the discretion to issue a direction but in the very nature of the
power so conferred upon the Court the discretionary power shall
have to be exercised along with judicial lines and not in a
mechanical, wooden or pedantic manner. It is difficult to lay down
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any strait jacket approach in the matter of exercise of such
discretion by the Courts. There is no cut and dried formula for the
Court to follow in the matter of issue or refusal of a direction
within the contemplation of Section 427(1). Whether or not a
direction ought to be issued in a given case would depend upon
the nature of the offence or offences committed, and the facts
situation in which the question of concurrent running of the
sentences arises.
11. There is no dispute that the petitioner was convicted
by the Judicial Magistrate First Class, Wani in nine matters. The
conviction orders are passed on various dates as mentioned in
earlier part of the judgment. The petitioner has relied upon on the
judgment of O.M. Cherian Vs. State of Kerala referred (supra)
wherein in paragraph Nos.20 and 21 observed as under:-
"20. Under Section 31 Cr.P.C. it is left to the full
discretion of the Court or order the sentences to
run concurrently in case of conviction for two or
more offences. It is difficult to lay down any
straitjacket approach in the matter of exercise of
such discretion by the courts. By and large, trial
courts and appellate courts have invoked and
exercised their discretion to issue directions for
concurrent running of sentences, favouring the
benefit to be given to the accused. Whether a
direction for concurrent running of sentences
ought to be issued in a given case would depend
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upon the nature of the offence or offences
committed and the facts and circumstances of the
case. The discretion has to be exercised along the
judicial lines and not mechanically.
21. Accordingly, we answer the Reference by
holding that Section 31 Cr.P.C. leaves full
discretion with the Court to order sentences for
two or more offences in one trial to run
concurrently, having regard to the nature of
offences and attendant aggravating or mitigating
circumstances. We do not find any reason to hold
that normal rule is to order the sentence to be
consecutive and exception is to make the
sentences concurrent. Of course, if the Court
does not order the sentence to be concurrent,
one sentence may run after the other, in such
order as the Court may direct. We also do not
find any conflict in earlier judgment in Mohd.
Akhtar Hussain and Section 31 Cr.P.C."
12. In the case of Iqram vs. State of Uttar Pradesh and
others reported in (2023) 3 SCC 184 where the relevant finding
given by the Apex Court in paragraph Nos.10 to 13 which reads as
under:-
"10 Section 427 provides that 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. In other words, sub-section (1) of
Section 427 confers a discretion on the court to direct
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that the subsequent sentence following a conviction
shall run concurrently with the previous sentence.
11 In Mohd. Zahid vs. State through NCB 3, this
Court interpreted the provisions of 2 "Cr.P.C." 3 2021
SCC OnLine SC 1183 Section 427 of CrPC after duly
considering the precedents in the following terms :
"33. Thus from the aforesaid decisions of this Court,
the principles of law that emerge are as under:
(i) if a person already undergoing a sentence of
imprisonment is sentenced on a subsequent
conviction to imprisonment, such subsequent term of
imprisonment would normally commence at the
expiration of the imprisonment to which he was
previously sentenced;
(ii) ordinarily the subsequent sentence would
commence at the expiration of the first term of
imprisonment unless the court directs the subsequent
sentence to run concurrently with the previous
sentence;
(iii) the general rule is that where there are different
transactions, different crime numbers and cases have
been decided by the different judgments, concurrent
sentence cannot be awarded under Section 427
Cr.P.C.;
(iv) under Section 427(1) of Cr.PC the court has the
power and discretion to issue a direction that all the
subsequent sentences run concurrently with the
previous sentence, however discretion has to be
exercised judiciously depending upon the nature of
the offence or the offences committed and the facts
in situation. However, there must be a specific
direction or order by the court that the subsequent
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sentence to run concurrently with the previous
sentence." 12 The Trial judge, in the present case,
granted a set off within the ambit of Section
428/Section 31 CrPC. No specific direction was
issued by the trial court within the ambit of Section
427(1) so as to allow the subsequent sentences to
run concurrently. All the convictions took place on
the same day.
13 Once the petitioner espoused the remedy of
moving a Writ Petition under Article 226 of the
Constitution, the High Court ought to have noticed
the serious miscarriage of justice which would occur
consequent upon the trial court not having exercised
specifically its discretion within the ambit of Section
427(1). When the appellant moved the High Court,
he was aggrieved by the conduct of the jail
authorities in construing the direction of the trial
court to mean that each of the sentences would run
consecutively at the end of the term of previous
sentence and conviction. The High Court ought to
have intervened in the exercise of its jurisdiction by
setting right the miscarriage of justice which would
occur in the above manner, leaving the appellant to
remain incarcerated for a period of 18 years in
respect of his conviction and sentence in the nine
sessions trials for offences essentially under the
Electricity Act.
13. The trial Judge, in the present case granted a set off
within the ambit of Section 428/ Section 31 of Cr.P.C. No specific
directions was issued by the trial Court within the ambit of Section
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427(1) so as to allow the subsequent sentences to run
concurrently. All the convictions took place on a different dates.
14. Section 31 of the Code of Criminal Procedure deals
with sentence in case of conviction of several offences at one trial.
However, the Apex Court has held that under the said provision it
is left to the full discretion of the Court to order the sentences to
run concurrently in case of conviction for two or more offences.
The Court further held that it is difficult to lay down any
straitjacket approach in the matter of exercise of such discretion
by the Courts. It is further held that whether a direction for
concurrent running of sentences ought to be issued in a given case
would depend upon the nature of the offence or offences
committed and the facts and circumstances of the case. The
discretion has to be exercised along the judicial lines and not
mechanically. Thus, Section 31 of the Cr.P.C. leaves full discretion
with the Court to order sentences for two or more offences at one
trial to run concurrently, having regard to the nature of the
offences and attendant aggravating or mitigating circumstances.
15. It is well settled that interference by this Court in
such discretion will be extremely rare and will be available only if
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there is apparent error in exercising judicial discretion by the Trial
Court. In the present case, the trial Court was aware that the
petitioner was convicted for the offences which were similar but
were committed at different time and places. Accordingly, the
trial Court has not used the discretion as it did not feel it proper
to exercise in favour of the petitioner and therefore, the order of
concurrently running of sentences was not passed with an
intention to have sentences to run consecutively.
16. The Hon'ble Apex Court also in the case of Mohd.
Zahid (supra) after referring the various decisions culled out the
principles which are reproduced in the earlier part of the
judgment observed that applying the law laid down by this Court
in the aforesaid decisions and the principles of law enumerated
here-in-above to the facts of the case on hand, the submissions on
behalf of petitioner/accused that his subsequent sentences to run
concurrently with the previous sentence requires to be rejected
outrightly.
17. Similarly, in the present case, the petitioner has been
convicted with respect to nine different offences which are arising
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out of nine different transactions having different crime numbers
and the cases have been decided by the different judgments.
Therefore, the petitioner is not entitled to any benefit of
concurrent sentence under Section 427 of Cr.P.C. Even otherwise
under Section 427(1) Cr.P.C. the Court has the power and
discretion to issue direction that the subsequent sentence to run
concurrently with the previous sentence, the discretion has to be
exercised judicially depending upon the nature of the offences or
offences committed. Here in the series of the offences petitioner
was found involved.
18. Sections 235(2), 248(2) and 255(2) of the Code of
Criminal Procedure make it imperative that sentence must follow
every condition. These provisions are to be read with Section 427
which clearly suggest that every sentence must be given effect to.
The Court must consider whether valid grounds exist to depart
from the rule. Here, in the present case, the petitioner against
whom several offences are registered and that being so, he is
habitual offender and not the first time offender or chance
offender. This is not a case wherein the theory of reformation to
be taken into consideration. In view of Section 427 of the Code
policy of law is very clear considering the petitioner being an
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habitual offender and no such special circumstances exist to defeat
rule contained in Section 427 of the Code of Criminal Procedure
and therefore, the petition deserves to be dismissed.
19. In view of that, we proceed to pass the following
order:-
ORDER
(i) Criminal Writ Petition is dismissed.
(ii) The copy of this order be sent to the concerned courts.
(NIVEDITA P. MEHTA, J.) (URMILA JOSHI PHALKE, J.)
manisha
Signed by: Mrs. Manisha Shewale
Designation: PA To Honourable Judge
Date: 05/05/2026 14:51:06
