Delhi High Court
Rohtash vs State on 23 December, 2014
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23rd December, 2014
+ CRL.M.C. 2182/2014
ROHTASH ..... Petitioner
Through: Ms. Inderjeet Sidhu, Advocate.
versus
STATE ..... Respondent
Through: Mr. Navin Sharma, APP for the
State with SI Balbeer Singh,
P.S.Shahdara.
CORAM:
HON'BLE MR. JUSTICE V.P.VAISH
VED PRAKASH VAISH, J. (ORAL)
1. By this petition filed under Section 482 read with Section 427 of
Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'),
the petitioner seeks the sentences in case FIR No.194/2004 under
Sections 392/394/397/411/34 IPC and FIR No.65/2009 under Sections
308/379/324/34 IPC both registered at P.S. Shahdara, Delhi to run
concurrently.
2. The concise facts of the present case are that the petitioner was
convicted in case FIR No.65/2009 under Sections 324 and 325 read with
Section 34 IPC by learned District Judge-cum-Additional Sessions Judge,
In-charge, North East District, Karkardooma Courts, Delhi vide judgment
dated 19.05.2012 and vide order on sentence dated 26.05.2012 the
petitioner was sentenced to RI for two years and fine of Rs.1,000/- under
Section 324 and RI for three years with fine of Rs.1,000/- under Section
325/34 IPC and in default of payment of fine, the petitioner was to
undergo further RI for three months and the substantive sentences were to
run concurrently. The petitioner was also convicted on 16.08.2010 and
vide order dated 19.8.2010 sentenced to undergo RI for 10 years and fine
of Rs.3,000/- (Rupees Three thousand) in default of payment of fine the
petitioner was to further undergo RI for 9 months in case FIR
No.194/2004 under Sections 392 and 394 read with Section 34 IPC
registered at P.S. Shahdara, Delhi. The petitioner preferred Criminal
Appeal No.268/2011 before this Court. Vide order dated 24.03.2014
judgment of conviction was maintained and order on sentence was
modified to the period already undergone. It was also observed that the
appellant had undergone more than 5 years incarceration.
3. Learned counsel for the petitioner submits that the petitioner was
arrested on 20.01.2010 in case FIR No.65/2009 under Sections
308/379/324/34 IPC registered at P.S. Shahdara, Delhi and since then he
is in judicial custody. She, therefore, prays that sentences in both the
cases may be allowed to run concurrently.
4. At this juncture, it is necessary to reproduce Section 427 Cr.P.C,
which reads as under: -
"427 Cr.P.C: 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 concurrently with
such previous sentence."
5. A bare perusal of the provisions of Section 427 Cr.P.C. suggests
that when a person is already undergoing a sentence of imprisonment in
one case and is further sentenced in the second case, the second sentence
shall commence at the expiry of imprisonment for which he has been
previously sentenced unless the courts directs the subsequent sentence to
run concurrently.
6. While considering the provisions of Section 428 and 427 Cr.PC the
Apex Court in 'State of Maharashtra vs. Najakat Ali Mubarak Ali'
(2001) 6 SCC 311 observed that Section 428 Cr.PC precedes Section 427
which provides that when any person sentenced on a conviction is already
undergoing sentence of imprisonment, such subsequent imprisonment
shall commence at the expiration of the imprisonment to which he has
been previously sentenced. However, the court upon its discretion can
direct that subsequent sentence shall run concurrently with such previous
sentence. Section 427 of the Code thus authorizes a court of law to direct
the sentence awarded by it to run concurrently which is to be done
keeping in view the facts of each case. His detention pending
investigation, inquiry and trial in that case or some other cases being
relevant consideration while directing the sentences to run consecutively
or concurrently. In 'Jadu @ Jadua Bhai vs. State of Orissa' 1992
Crl.L.J. 2117 it was held that under Section 482 Cr.PC the Court has the
power to order sentences to be run concurrently. However, it is to be
decided taking into consideration the factual matrix of each case.
7. The Full Bench of Madhya Pradesh High Court in 'Shersingh vs.
State of M.P.' 1989 Cri.L.J. 632 observed that inherent power of the
High Court under Section 482 of Cr.PC could be exercised even if the
trial Court or the Appellate or Revisional Court has been unable to invoke
its powers under Section 427(1) of Cr.PC in directing running of previous
and subsequent sentences concurrently. High Court's inherent powers can
be invoked at any stage and are not hampered by the provisions of
Section 427(1) Cr.PC. This is also the case even when no such Order is
passed under Section 427(1) Cr.PC by the trial Court or Appellate or
Revisional Court and even though the conviction has become final.
8. In the present case, the petitioner was convicted in FIR No.65/2009
under Sections 324 and 325 read with Section 34 IPC registered at P.S.
Shahdara, Delhi. The petitioner was also convicted in case FIR
No.194/2004 under Sections 392/394/397/411/34 IPC registered at P.S.
Shahdara, Delhi and the petitioner preferred Criminal Appeal
No.268/2011. Vide order dated 24.03.2014 in the said appeal this Court
modified the sentence of imprisonment in case FIR No.194/2004 to the
period already undergone. As per nominal roll the petitioner was in
custody in case FIR No.65/2009 w. e. f. 20.01.2010 and the sentence in
case FIR No.194/2004 started from 25.03.2014 after completion of
sentence in first case.
9. Considering in totality the facts and circumstances of the case that
the petitioner is in judicial custody since 20.01.2010, it is hereby directed
that substantive sentences imposed upon the petitioner in case FIR
No.194/2004 under Sections 392 and 394 read with Section 34 IPC
registered at P.S. Shahdara and FIR No.65/2009 under Sections 324 and
325 read with Section 34 IPC registered at P.S. Shahdara, Delhi shall run
concurrently.
10. With the aforesaid observations, the petition stands disposed of.
11. A copy of this order be sent to Superintendent, Jail for necessary
action and compliance.
(VED PRAKASH VAISH)
JUDGE
DECEMBER 23, 2014
hs
