Delhi High Court
Nasim Bano vs The State Of Nct Of Delhi on 28 August, 2014
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :21.08.2014
Judgment delivered on :28.08.2014.
+ CRL.A. 64/2003 & Crl.M.A. No.3431/2011
NASIM BANO
..... Appellant
Through Appellant with her counsel
Mr.Sanjay, Adv.
versus
THE STATE OF NCT OF DELHI
..... Respondent
Through Ms. Fizani Hussain, APP along
with SI Padam Singh.
+ CRL.A. 190/2003
GEETA & ANR.
..... Appellants
Through Appellants with their counsel
Mr.Sanjay, Adv.
versus
STATE
..... Respondent
Through Ms. Fizani Hussain, APP along
with SI Padam Singh.
+ CRL.A. 640/2003
MOHD. NAFIS
..... Appellant
Through Appellants with his counsel
Mr.Sanjay, Adv.
versus
THE STATE
..... Respondent
Through Ms. Fizani Hussain, APP along
with SI Padam Singh.
+ CRL.A. 708/2003 & Crl.M.A.No.3428/2011
NASEEM BANO ALIAS NASIM
Crl. Appeal Nos.64/2003, 190/2003, 640/2003, 708/2003 & 747/2003 Page 1 of 11
..... Appellant
Through Appellants with her counsel
Mr.Sanjay, Adv.
versus
THE STATE
..... Respondent
Through Ms. Fizani Hussain, APP along
with SI Padam Singh.
+ CRL.A. 747/2003 & Crl. M.A.No.5999/2012
GEETA & ANR.
..... Appellants
Through Appellants with their counsel
Mr.Sanjay, Adv.
versus
STATE
..... Respondent
Through Ms. Fizani Hussain, APP along
with SI Padam Singh
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 These are five appeals relating to two FIRs. (i) FIR No.375/2001
has been registered under Sections 365/368/376/542/506/323/109/34 of
the Indian Penal Code (IPC) and Sections 3, 4, 5 & 6 of the Immoral
Traffic (Prevention) Act, 1956 (hereinafter referred to as the 'said Act')
against Naseem Bano, Mohd. Nafis, Manju and Geeta. On 08.01.2003
Manju, Geeta and Naseem Bano stood convicted under Sections
368/342/506-II/109/34 of the IPC and Section 3, 4, 5 & 6 of the said
Act. Accused Mohd. Nafis stood convicted only for the offence under
Section 4 of the said Act. Accused Naseem Bano, Geeta and Manju had
been sentenced to undergo RI for a period of six months and to pay a
fine of Rs.300/- and in default of payment of fine, to undergo SI for
three months for the offence under Section 342 of the IPC; for offence
under Section 323 of the IPC, they had been sentenced to undergo RI for
a period of six months each; for the offence under Section 368 of the
IPC, they had been sentenced to undergo RI for a period of five years
and to pay a fine of Rs.5,000/- and in default of payment of fine, to
undergo SI for one year; for the offence under Section 506-II of the IPC,
they had been sentenced to undergo RI for a period of six months and to
pay fine of Rs.500/- and in default of payment of fine, to undergo SI
three months; they had also been convicted under Sections 3, 4, 5 & 6 of
the said Act. The maximum sentence awarded to them is RI seven years
and a fine of Rs.5000/- and in default of payment of fine to undergo SI
for one year. Accused Mohd. Nafis had been sentenced to undergo RI
for a period of two years for the offence under Section 4 of the said Act.
(ii) FIR No. 456/2001 relating to the same incident was registered
under Sections 363/365/376/368/372/342/323/506/406/109/34 of the
IPC and Sections 3, 4, 5, 6 & 7 of the said Act against the aforenoted
appellants, who were convicted under Section 372/373/34 of the IPC
and Section 3, 4, 5, 6, & 7 of the said Act vide order of sentence dated
03.09.2003. Each of them had been sentenced to undergo RI for a period
of 7 years and to pay a cumulative fine of Rs.43,000/- and in default of
payment of fine to undergo total RI for a period of 10 months (being
maximum period of punishment awarded in case of default under the
offences for which they stood convicted).
2 In these appeals, applications had been filed by each of the
appellants seeking permission of this Court that the sentences awarded
to them in the separate FIRs i.e. FIR No.375/2001 & 456/2001 be
permitted to run concurrently and the discretion has been prayed under
Section 427 of the Cr.PC.
3 Relevant would it be to note that another FIR i.e. FIR No.45/2002
had been registered against Mohd Nafis (who stood acquitted vide order
of Special Judge dated 22.12.2003) and one of the other co-accused
Naseem Bano in which she stood convicted on 24.12.2003 under
Sections 3, 4 & 5 of the said Act for which the maximum sentence
awarded to her was RI five years as also a fine of Rs.5,000/- and in
default of payment of fine to undergo SI for four months. Appeal against
this conviction (Crl. Appeal No.121/2004) was disposed off vide order
17.11.2011. That appeal stood dismissed. Appellant Naseem Bano
having completed her sentence in that FIR i.e. FIR No.45/2002 was
released on 19.02.2013. This is reflected from the record.
4 This Court first has to deal with the submission of the appellants
as to whether the sentences can be permitted to run concurrently. For
this proposition, learned counsel for the appellants has placed reliance
upon 1991 Crl. LJ 438 Azad Singh Vs. State, a judgment of a Bench of
this Court which in turn had relied upon a Division Bench judgment of
High Court of Madhya Pradesh reported as 1975 Crl. LJ 498 A.S. Naidu
Vs. The State of Madhya Pradesh. The ratio of the aforenoted judgment
was that under the provision of Section 427 of the Cr.PC, the sentences
may be permitted to run concurrently. However, if the sentences are in
default of payment of fine, those may be read in addition. The judgment
of A.S. Naidu (supra) had noted that the powers of the High Court in
making a subsequent sentence to run concurrently would not in any
manner modify or alter the judgment as it would not affect the nature
and quantum of the sentence; it being only a power pertaining to the
manner of execution of the sentence; this power can be exercised at any
stage; being an independent power of the Court, it can be exercised after
the disposal of the case on its merits as it does not amount to a review of
the judgment.
5 Facts of the instant case disclosed that FIR No.375/2001 had been
registered on 03.10.2001 on the complaint that one 'S' (PW-1) could
not be traced; she had gone missing; she was recovered from kotha No.
57, Second Floor, GB Road. A raid was conducted where apart from
PW-1, other girls were also recovered. Naseem Bano, the owner of the
kotha, Naseem Bano's husband Mohd. Nafis, Geeta and Manju were
found a part of this flesh trade; they were all arrested and conviction
followed qua the aforenoted persons. As noted supra, the conviction has
not been challenged on its merits.
6 FIR No.456/2001 was registered on 20.12.2001 relating to the
similar facts. Pursuant to the registration of this FIR, PW-1 'S' had been
recovered from the same brothel i.e. kotha No. 57, GB Road wherein the
role of the aforenoted appellants Naseen Bano, Mohd. Nafis, Manju and
Geeta had surfaced. The conviction followed along with the sentences
but as noted supra, this judgment has not been challenged on its merits.
The appellants are only praying that the sentences which had been
awarded in the separate FIRs be permitted to run concurrently.
7 Section 427 of the Cr.PC reads herein 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 con- currently with such previous
sentence."
8 This Section creates an exception that in case of person already
undergoing sentence of imprisonment, it provides that the first sentence
which is passed must be given effect to first and the sentence passed
subsequently shall follow after the expiration of the first sentence. Sub-
section (1) however confers discretion upon the Court to direct that the
subsequent sentence shall run concurrently with the previous sentence;
this discretion can be exercised [in terms of the ratio of A.S.
Naidu(supra)] even after the disposal of the appeal or revision by the
High Court. A Bench of this Court in the case of Azad Singh (supra) had
relied upon the ratio of A.S. Naidu and had permitted the prayer made by
the applicant in that case under Section 427 of the Cr.PC.
9 Keeping in view the facts of the instant case, where both the FIRs
i.e. FIR No.456/2001 and FIR No.375/2001 arise out of the same
incident; in the first FIR i.e. FIR No.375/2001 six girls were recovered
from the brothel owned by appellant Naseem Bano and her accomplices
and whereas in the second FIR i.e. FIR No.456/2001 , one girl was
recovered from the same brothel and also keeping in view the additional
fact that after the date of the conviction, the appellants (who were all
present in Court at the time of hearing of the appeals), have reformed
themselves and have not been found indulging in any further criminal
activity (which position has been confirmed by the Investigating Officer
who has made a positive statement in this regard), it would be a fit case
where the Court should exercise its inherent powers and accordingly the
substantive sentence of imprisonment awarded in aforenoted two cases
be allowed to run concurrently. The prayer made under Section 427 of
the Cr.PC is allowed.
10 In the case of Naseem Bano, this Court notes that the record
reflects that she has been sentenced to undergo RI for a period of five
years, which period she has already completed and was finally released
from the jail on 19.02.2013 after undergoing incarceration in that FIR
i.e. FIR No.45/2002. Her nominal roll in FIR No.456/2001 reflects that
in that case out of a period of seven years which has been imposed upon
her, she has undergone incarceration of one year, seven months and 18
days. The total incarceration undergone by Nasim Bano would now
work out to be six years and almost eight months. The total period of
incarceration awarded to appellant Nasim Bano in all the three FIRs was
seven years each. Therefore, the period of incarceration already
undergone by Nasim Bano is the sentenced imposed upon her.
11 In FIR No. 456/2001, nominal roll of appellant Mohd. Nafis
reflects that he has undergone incarceration of three years, seven months
and 29 days besides remissions earned of seven months and 14 days and
as per FIR No.375/2001 sentence remaining is 2 months and 23 days (as
reflected in nominal roll dated 22.08.2014) meaning thereby that he has
undergone a total incarceration of about six years one month and 20
days. The sentence awarded to appellant Mohd. Nafis in both FIRs i.e.
FIR No. 456/2001 & FIR No.375/2001 was maximum seven years. The
period of incarceration already undergone by Mohd Nafis is the
sentenced imposed upon him.
12 In FIR No. 375/2001, nominal roll of appellant Geeta reflects that
she has undergone incarceration of four years, five months and six days
besides remissions earned of 11 months and 24 days. In FIR
No.456/2001, she has undergone incarceration of about one year, seven
months and 18 days meaning thereby that if both the FIRs counted
together, she has undergone incarceration of six year, four months and
18 days. The total period of incarceration awarded to appellant Geeta in
both the FIRs was seven years. The period of incarceration already
undergone by Geeta is the sentenced imposed upon her
13 In FIR No. 375/2001, nominal roll of appellant Manju reflects
that she has undergone incarceration of five years, six months and one
day besides remissions earned of one year, four months and four days.
In FIR No.456/2001, she has undergone incarceration of about one year
and seven months meaning thereby that if both the FIRs counted
together, she has undergone incarceration of eight years, five months
and 23 days. The total period of incarceration awarded to appellant
Manju in both the FIRs was seven years each. The period of
incarceration already undergone by appellant Geeta is the sentenced
imposed upon her.
14 These appeals are disposed of in the above terms.
INDERMEET KAUR, J
AUGUST 28, 2014
A
