Delhi High Court
Yamin vs The State ( Govt Of Nct Of Delhi) on 11 January, 2021
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 09.12.2020
Pronounced on: 11.01.2021
+ CRL.A. 769/2015 & Crl.M.A. 230/2019
YAMIN ..... Appellant
Through: Mr. Kanhaiya Singhal, Adv.
versus
THE STATE (GOVT OF NCT OF DELHI) ..... Respondent
Through: Mr. G. M. Farooqui, APP for State.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
JUDGMENT
CRL.M.A.No. 230/2019 in CRL. A. 769/2015
1. The hearing has been conducted through video conferencing.
2. Present applicant had filed the appeal mentioned above by seeking
prayer as under:
"directing the sentence awarded in pursuance to FIR
No.1013/2004 registered at Police Station Uttam Nagar
for the offences punishable under sections 307/324/34
IPC concurrently with the sentence awarded in
pursuance to FIR No.67/2011 registered at Police Station
Swaroop Nagar for the offences punishable under
sections 394/397 IPC or to reduce the sentence to the
period already undergone by the appellant."
3. However, the appellant moved present application under section 427
read with section 482 Cr.P.C., seeking disposal of the appeal with a
direction that the seven years sentence awarded to the appellant in case FIR
No.1013/2004 for the offence punishable under section 307 IPC registered at
Police Station Uttam Nagar should run concurrently with 10 years sentence
awarded in case FIR No.67/2011 for the offence punishable under section
394/397 IPC registered at Police Station Swaroop Nagar; or, that in
alternative, the sentence be reduced to the period already undergone.
4. The application came on hearing on 14.08.2019 before this Court and
notice was issued. Thereafter, the issue of sentences to run concurrently (as
in present application) was carried out by a co-accused namely Vicky @
Vikash in the case arising out of FIR No.65/2007 registered at Police Station
Swaroop Nagar in which by order dated 31.01.2020 passed in Crl.A.
No.208/2020, the Hon'ble Supreme Court has allowed the plea taken by the
abovenamed co-accused. The said case is reported as 2020 SCC OnLine SC
116.
5. During hearing of the present application on 02.07.2020, learned APP
for State argued that the applicant/appellant has criminal antecedents and
has been involved in 21 other cases. Accordingly, vide order dated
02.07.2020, the Social Welfare Department of the Government of NCT of
Delhi was directed to appoint a Probation Officer, to examine the appellant's
case and assess the family background, the family situation, the chances of
reformation and reintegration of the appellant with family and society and
other relevant factors, as per the protocol of the said Department, and submit
the report.
6. Pursuant to the directions of this Court, Probation Officer, Mandoli
Jail filed its report dated 21.07.2020 wherein stated as under:
"Name of the person under study: Yamin.
Personal History:- Accused/convict Yamin is 38 years
old and married. He is presently lodged in Central Jail
No.12, Mandoli, Delhi and his family lives in own
substandard house built in an area around 25 sq. yards.
along with family on the above said address, which
comprises of 05 people. He is illiterate and wishes to live
a normal social life after his release from the jail. He was
running a meat shop to earn his livelihood as narrated by
the convict. He is sole bread earner in his family.
Details regarding Behaviour, Habits and moral values
etc:- The convict is habitual of beedi smoking, gutkha
chewing and other prohibited and health threatening
substances. He was addicted of intoxicants before his jail
tenure. It has been narrated by the jail officials and also
verified from the jail reports that the convict is indulged
in nuisance conduct and engages in quarrels, threatening
and undesirable behaviour with fellow convicts and jail
officials. A summary of punishments/warnings imposed
on the convict in the jail is enclosed herewith as
Annexure-A.
Temperament, Character & Personality Traits:- The
convict is aggressive and short tampered in his behaviour
and emotionally unstable. He becomes violent too and
none of the staff or fellow convicts has any appreciation
for his behaviour.
Physical and Mental History and Present Conditions:-
Convict's mental condition appeared to be normal and he
shares about his plans to settle down peacefully after his
release from jail.
Contact with Social & Religious Organization, if any:-
Reported Nil.
Economic Conditions of the Family:- The family of the
convict is presently residing in their own house covering
an area around 25 Sq. Yards in JJ Colony Bindapur and
falls in the lower income group.
Family Details:-
Sr. Relationship Socio-economic status
No. with the
Convict
1. Father Sh. Nayab Khan, aged 70
years, is under medication of
tuberculosis.
2. Mother Smt. Khurshid Begum, aged 68
yrs., is a housewife.
3. Brother First- Sh. Aftab, aged 35 yrs.,
is married and lives separately
with his family.
4. Brother Second - Sh. Nawab, aged 32
yrs., is married and lives
separately with his family.
5. Sister Smt. Malka, aged 39 yrs., is
married and lives with her
children and in-laws.
6. Wife Smt. Shabnam, aged 32 yrs., is
an illiterate house wife and
doing household works as a
domestic labour in
neighbourhood in order to earn
livelihood for her family in the
absence of her husband - the
convict.
7. Daughter Ms. Sanna, aged 14 yrs., is
studying in school.
8. Son Master Mannu @ Manohar,
aged 8 yrs., is also a student.
Report of Neighbours: Neighbours have not reported
favourably in view of his past multiple criminal cases.
The neighbours particularly requested the PO about non-
disclosure of their identities.
Attitudes of Family Towards Offenders and Extent of
his Influence of him/her:- The family members of the
convict are willing to see him released from jail as early
as possible and want to resume their socio-economic life.
Home Surrounding and General Out Look:- The family
of the convict lives in JJ Colony and condition of civic
amenities are poor. The home surrounding is very
congested and unhygienic. People living in the locality
belong to poor/low socio economic strata and
unemployed youth of the neighbourhood are prone to
criminal activities.
Offenders Own Reaction to the Offence and his Attitude
Towards Possible Punishment:- Convict feels repentant
about his guilt and confessed to have committed the
offence. He is seeking lenient consideration from
authorities and hope for his early release.
Observation:- The convict is desirous of restarting a
normal social life after his release from the jail and he
also expressed his willingness to build peaceful and
cordial relations with everyone in society, though the
convict's past criminal cases evidently establish that the
convict is a threat to the society."
7. Learned APP while opposing the present application filed by the
appellant submitted that On 17.11.2004 on receiving of DD No 39 at Police
Station Uttam Nagar, Delhi, ASI Ramphal along with Ct Rakesh reached at
D-58B Chankya place where he came to know that injured had been taken to
DDU Hospital by CAT ambulance. Then they reached at DDU hospital and
found that injured Amardeep and Bharat Thakur were admitted. ASI
Ramphal collected MLC of the injured and recorded the statement of
Amardeep on 17.11.2004 wherein injured Amardeep reported that on
16.11.2004 at about 8:45 PM accused Yamin stabbed his father and Arvind
stabbed him with knife while Kamlesh and Ram Pratap caught hold them.
On the basis of said statement and a case vide FIR No. 1013/2004 U/s
307/34 IPC was registered at Police Station Uttam Nagar, Delhi.
8. During the course of investigation, statement of the witnesses were
recorded, site plan was prepared, MLC also collected. Accused Arvind was
arrested and his confessional statement was recorded. Nature of injuries of
Amardeep and Bharat were opined as dangerous injuries. Later on
Investigation was assigned to SI Neeraj Kumar who formally arrested the
accused Kamlesh as he was on anticipatory bail. Later on, investigation was
assigned to ASI Ram Chander who formally arrested the accused Yamin as
he was arrested in FIR No. 669/2005 U/s 25 Arms act PS Uttam Nagar.
Accused Ram Prasad could not be apprehended. Charge sheet u/s 307/34
IPC against accused Kamlesh @ Baby, Arvind and Yamin were filed and
accused put to trial. Later on, accused Ram Prasad was also arrested and
supplementary charge sheet was filed against him.
9. Vide orders dated 19.04.2006 and 21.09.2007, charge u/s 307/324/34
IPC was framed against all the accused persons by Trial Court in which
accused pleaded not guilty and claimed trial.
10. During trial, accused Arvind has expired and proceeding qua him
abated vide order 22.01.2008 and accused Ram Prasad was declared
proclaimed offender.
11. After examination of prosecution witnesses, Trial Court held that the
prosecution was able to prove its case beyond reasonable doubt that both the
accused Yamin and [email protected] Baby along with Arvind (since expired) and
Ram Prasad (since PO) in furtherance of their common intention has caused
injuries to Amardeep and Bharat Thakur with the intention to commit their
murder. Accordingly, the Trial Court convicted both the accused for offence
U/s 307/34 IPC for attempting to commit murder of Amardeep and Bharat
Thakur.
12. Consequently, Trial Court has imposed a sentence of 7 years of
rigorous imprisonment with fine of Rs 20,000/- each for the offence U/s 307
IPC for attempt to murder to injured Amardeep and Bharat Thakur, in
default of payment of fine, convicts shall further sentence for six months
simple imprisonment. Further directed that if fine is realized from both the
convicts, Rs.35,000/- shall be paid to the injured Amardeep and Bharat
Thakur as compensation U/s 357 Cr.P.C.
13. Learned APP further submitted that the appellant has following
criminal antecedent:-
Sl. FIR Year U/s Police Station Status of the
No. No. case
1. 459 1997 380 IPC Janakpuri Acquitted
2. 475 1997 380 IPC Janakpuri
3. 1115 1998 457/380 IPC Sadar Jaipur
4. 591 1999 392/34 IPC Uttam Nagar Acquitted
5. 733 1999 307/34 IPC Uttam Nagar Acquitted
6. 662 2002 25 Arms Act Uttam Nagar
7. 767 2003 394/34 IPC Dabri
8. 875 2003 380/411 IPC Uttam Nagar Acquitted
9. 1180 2003 356/379/34 IPC Uttam Nagar Convicted
10. 63 2003 25 Arms Act Hari Nagar
11. 549 2004 379/411 IPC Defence
Colony
12. 1013 2004 307/34 IPC Uttam Nagar Convicted
13. 669 2005 25 Arms Act Uttam Nagar Acquitted
14. 37 2006 341/323/34 IPC Hari Nagar Convicted
15. 8 2007 21 NDPS Act Uttam Nagar Convicted
16. 150 2008 452/352/34 Bindapur Convicted
17. 258 2008 379 IPC Bindapur Convicted
18. 359 2009 356/379/400 IPC Rajouri Convicted
Garden
19. 64 2011 394/34 IPC Bhalswa Convicted
Dairy
20. 67 2011 397/34 IPC Swaroop Convicted
Nagar
21. 161 2013 186/353/332/147/ Hari Nagar Acquitted.
149/34 IPC
14. Learned APP has informed this Court that the appellant also filed the
Crl.M.A. No. 10016/2015 in Crl. Appeal No. 811/2015 before this court
wherein he prayed to direct sentence awarded in case FIR No. 64/2011
registered under section 392/397/411/34 IPC PS Bhalswa Dairy to run
concurrently with the sentence awarded in FIR No.67/2011 PS Swaroop
Nagar. The said application was dismissed vide order/judgement dated
20.05.2016 by observing that sentence in the case i.e. 64/2011 and FIR
No.67/2011 are commission of distinct offence at different periods. Sentence
order records that A-2 has suffered conviction in FIR No.1180/2013 under
section 356/379/34 IPC PS Uttam Nagar, FIR No.37/2006 under section
324/341/34 IPC PS Hari Nagar Delhi; he is involved in fifteen other
criminal cases under various offences at various police stations. Apparently,
the appellants are habitual hard core criminal.
15. Learned APP submitted that in the instant case, not only the victim
was robbed of valuable articles but also inflicted dangerous injuries on his
body. Thus, present application deserves to be dismissed.
16. I have heard learned counsel for the parties and perused the material
available on record.
17. The Appellant herein vide the instant Application U/s 427 Cr.P.C. r/w
Section 482 Cr.P.C. is seeking the direction for concurrent running of
sentences in FIR No. 1013/2004, FIR No. 67/2011 and FIR No. 64/2011.
The Chart below delineates the FIR particulars, quantum of sentence
awarded and the status of the respective Appeals filed by the Appellant.
F.I.R. Particulars Quantum of Sentence Status of Appeal
F.I.R. No. 64/2011, 10 years RI with fine of Crl. A. No. 1020/2013.
U/s. 394/397 I.P.C. Rs.10,000/- with default Dismissed on
P.S. Bhalswa Dairy sentence of 1 month. 10.03.3016 by this
Court
F.I.R. No. 67/2011 10 years RI with a fine Crl. A. No. 811/2015.
U/s. 392/394/397 I.P.C. of Rs.10,000/- Dismissed on
P.S. Swaroop Nagar. Application U/s 427 20.05.2016 by this
Cr.P.C. seeking Court
concurrent running of
sentences in F.I.R. No.
64/2011 and F.I.R. No.
67/2011 dismissed by
this Court on
20.05.2016.
F.I.R. No.1013/2004 7 years RI with a fine of Crl. A. No. 769/2015
U/s. 307/324/34 IPC Rs.20,000/- with default PRESENT APPEAL
P.S. Uttam Nagar. sentence of 6 months on
two counts with the
direction that sentence
shall run concurrently.
18. It is pertinent to mention here that similar prayer was made by co-
accused Vicky in the FIR No. 67/2011 & 64/2011 in Crl.A. No. 1496/2013
titled Vikas @ Vicky vs. State, before this Court. However, vide common
judgment dated 20.05.2016 passed in Crl.A. Nos. 1496/2013 & 811/2015,
pleased to reject the said prayer.
19. The co-accused Vikas @ Vicky filed Criminal Appeal before the
Hon'ble Supreme Court vide Crl.A. No. 208/2020 against the common
judgment dated 20.05.2016 of this Court. The Hon'ble Supreme Court
allowed the said appeal vide judgment dated 31.01.2020 by directing the
sentences to run concurrently in F.I.R. No. 64/2011, F.I.R. No. 67/2011 and
F.I.R. No. 263/2009 and further directed to release the said accused since he
had already suffered 10 years RI. [Criminal Appeal No. 208/2020 titled
"Vicky @ Vikas v. State (Govt. of NCT of Delhi)" (2020 SCC Online SC
116)].
20. Section 427 Cr.P.C. is relevant 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 imprison- ment 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.
21. It is settled position of the law that the direction to run the sentence
concurrently may be passed by the Trial Court, Appellate Court and the
Revisional Court.
22. The issue of concurrent running of the sentences awarded in different
cases came up before the Full Bench of Bombay High Court, in the case of
Satnam Singh Puran Singh Gill vs. State of Maharashtra: 2009 SCC
Online Bom 52. The objection of State was as under:
"2. The objection raised by the learned APP to the
application is on the ground that the conviction the
applicant is not based only on one incident but the
conviction is based on two totally independent incidents
or transactions. The submission is that in view of the
decision of the Division Bench of this Court the case of
Ramesh Krishna Sawant Vs. State of Maharashtra (1994
Maharashtra Law Journal 825) power under section 427
cannot be exercised in the present case for directing that
the sentence shall run concurrently. Reliance was also
placed on judgment and order dated 04th June 2007 in
Criminal Application No.3959 of 2006 (Sanjeev Kumar
Sadanandan Pillai & Anr. Vs. The State of
Maharashtra)."
23. However, while taking into consideration the legislative intent,
interpretation of penal statute and the objections of the State, the Court
observed as under:
"21. The provisions of Section 427 of the Code are titled
to provide a benefit in favour of a convict. Whether the
sentence awarded earlier or the sentence awarded on
subsequent conviction to run consecutive or concurrent is
a matter of importance not only from the point of view of
the accused but even administration of criminal justice.
The Court has been vested with this power and is
expected to apply this provision in every case at the time
of awarding the sentence. The obligation cast upon the
Court is of a mandatory nature as it has the impact of
granting or declining to grant a benefit to a convict.
Thus, it may not be appropriate to read into the
provisions of Section 427 any restriction or limitation on
the discretion of the Court which has not been
specifically imposed by the Legislature.
22. As we have already noticed, the Legislature in its
wisdom has not imposed any bar or limitation on the
basis of which case of any subsequent conviction would
fall outside the ambit or scope of Section 427. On the
contrary, to apply these provisions to different cases is
the very intent behind this provision. Sub-section (2) of
Section 427 requires mandatorily that life imprisonment
in two different cases shall run concurrently. To hold that
the provisions of Section 427(1) would not apply to any
case would be an interpretation which would neither be
permissible on any principles or any accepted canons of
interpretation of statutes nor with reference to the
legislative intent behind this provision.
23. We are unable to see any statutory restriction on the
powers of the Court or legislative mandate to exclude any
class of cases from the provisions of Section 427 of the
Code once the ingredients of the provision are satisfied. It
is not for the Court to read into the provisions what is not
stated unless it becomes imperative due to the rule of
implied construction. On its plain reading, the language
of the provision does not admit any direct or implied
restriction. Of course, the Court has to exercise its
discretion guided by law and legal principles. It must be
governed by rules, not by humour and cannot be
arbitrary, vague and fanciful. It essentially has to be
legal, regular and according to the rules of reason and
justice. (See Ramji Dayawala & Sons (P) Ltd. v. Invest
Import, (1981) 1 SCC 80).
24. Moreover, while taking into consideration the discretionary powers of
the criminal Courts, the Full Bench observed as under:
"28. Another aspect which needs to be clarified with
reference to the legislative intent apparent from the
language of the section is that imprisonment of
subsequent conviction shall commence at the expiration
of the imprisonment to which the accused has been
previously sentenced unless the Court directs such
sentence to run concurrently with the previous sentence.
This clearly indicates that the normal rule would be that
sentence would run consecutively and exception is that
they would run concurrently. The pre-requisite of the
exception being that Court has to apply its mind and pass
a specific order directing that the sentences shall run
concurrently with the previous sentence but for such
specific exercise of discretion, the rule of sentence
running consecutively would cover the case. We have
already noticed that this requirement of law has to be
satisfied by the Court. The law intends to provide a
benefit to the accused of calling upon the Court to
exercise discretion where a sentence awarded in a
subsequent trial would run consecutively or concurrently
with the previous sentence. Wherever the provisions of
the Criminal Procedure Code are applicable the Court
would be required to apply the provisions of Section 427
of the Code unless their application was specifically
barred by the Legislature or by its necessary implication.
The language of Section 427 read cumulatively does not
command an accused or a convict to make such an
application as consideration of this aspect of sentencing
requires the Courts to exercise the discretion in terms of
Section 427 of the Code. No doubt, it will be always more
appropriate that the factum of previous conviction and
sentence and the reasons for exercising the judicial
discretion under Section 427 is brought before the Court
by means of an appropriate application, but this cannot
be termed as a requirement absolutely mandatory and
without which the Court would not be in a position to
pass appropriate orders as regard directing the sentences
to run concurrently or consecutively. While passing an
order of imprisonment/sentence upon a subsequent
conviction, it will always serve the ends of justice better
and would be inconformity with public good that such
discretion is even exercised by the Court suo motu. The
Legislature in its wisdom did not leave any choice or
discretion with the Courts in relation to sentences
covered under Section 427 (2) of the Code and mandated
that they would run concurrently. This is to be seen in
contra-distinction to the judicial discretion vested by the
Legislature in the Court under Section 427(1) of the
Code, where all convicts undergoing imprisonment in a
previous conviction, except imprisonment for life, can
invoke the jurisdiction of the Court in terms of Section
427 of the Code. The expression "unless the Court
directs" clearly suggested that the Court would apply its
mind and by virtue of some reasoned directions direct
that the sentences shall run concurrently with the
previous sentence.
The Court while dealing with stringent laws and
particularly penal statutes is required to ensure that the
intention of the Legislature is not frustrated and even if
necessary it should take recourse to the rule of purposive
construction as more the stringent is the law less is the
discretion with the Court. While dealing with such
enactments, even on the first principle the course which is
favourable to further the legislative cause should be
adopted and an interpretation which would reduce the
legislation to futility should be avoided. One provision
alone need not be construed in isolation and it is always
preferred rule of interpretation that a provision should be
construed with reference to other relevant provisions as
well as the scheme of law underlining the said provisions.
(See Prakash Kumar v. State of Gujarat, (2005) 2 SCC
409).
29. It is also equally well settled principle of law that the
Court cannot enlarge the scope of legislation or intention
when the language of the statute is plain and
unambiguous as well as that the Court would not read
into the provisions what has not been stated in the
language of the provision. (A.N. Roy, Commissioner of
Police v. Suresh Sham Singh, (2006) 5 SCC 745). Section
31 and Section 427 both should be read in conjunction
with the other provisions of the Code which vests the
Court with judicial discretion in regard to imposition of
imprisonment and should be seen in the backdrop of the
scheme of the Code and basic rule of criminal
jurisprudence with an interpretation which provides an
advantage to the under-trial is preferred to the one
against him. May be parameters and criteria in awarding
sentence under different provisions of the Code would
largely be applicable even to exercise of jurisdiction
under Section 427 of the Code. The nature and gravity of
the previous offence, the punishment inflicted, the
circumstances leading to the occurrence, conduct of the
accused could be looked into by the Court through the
judgment of the previous conviction while deciding
whether the sentence in a subsequent conviction would
run consecutively or concurrently. The gravity, nature
and circumstances in relation to the crime committed in
subsequent conviction could further help the Court to
exercise the discretion in consonance with the settled
principles. Merely because the conviction is in two
different cases and the punishment awarded in previous
conviction was for a heinous crime, per se would not
exclude the jurisdiction of the Court under Section 427(1)
of the Code. It is apparent that the Legislature in its
wisdom has chosen not to impose any such restriction on
the power of the Court. The provisions relating to vesting
of jurisdiction or judicial discretion are not to be
construed narrowly when they are capable of admitting
no ambiguity. the maxim Est boni judicis ampliare
jurisdictionem is indicative of proper amplification of
jurisdiction particularly in relation to matters arising out
of procedural law."
25. It is pertinent to mention here that the Full Bench discussed the
precedents in this regard and also took note of the conflicting judgments and
then observed as under:
"55. Thus, there is hardly any judgment brought to the
notice of this court which lays universal principle that
wherever the accused is convicted for two different
transactions under two different enactments at two
different points of time, then the court is divested of its
power and jurisdiction under the provisions of section
427(1) of the Code. The emphasis in the language under
section 427(1) is not on different offences but the
application thereof is on the premise of undergoing
sentence of imprisonment in a previous conviction and
directing sentence of imprisonment on a subsequent
conviction to run consecutively unless directed to run
concurrently by the court of competent jurisdiction. The
exclusion of the provisions of section 427(1) with
reference to different transactions, different offences and
different cases, is not comprehensible within the
language, particularly, in view of the unambiguous and
clear terms used by the legislature in section 427(1) of
the Code. The section is probably intended to achieve a
twin purpose, one which is beneficial to the accused
where the court is expected to consider directing the
imposition of subsequent sentences to run consecutively
or concurrently with the previous sentence and secondly,
a general and administrative concept that of over-
crowded jails where under-trials and convicts are lodged
so as to even require the State to act in the interest of
administration of criminal justice system and not to
frustrate the purpose of sentencing by ill-treating the
convict. These alongwith the above-referred criteria are
relevant consideration for exercise of jurisdiction but
certainly are not determinative as they would have to be
seen in the facts and circumstances of a given case. the
court which exercises such jurisdiction has to be the
court of competent jurisdiction and the matter essentially
should fall within its jurisdiction. Exercise of judicial
discretion presupposes legal and inherent jurisdiction to
entertain such matters."
26. The Bench finally held as under:
"58. In view of our detailed discussion, now we proceed
to answer the question referred as under:
a) Neither the court of competent jurisdiction is
divested of its power to pass appropriate order in
terms of Section 427(1) of the Code of Criminal
Procedure, 1973 nor does the accused lose this
statutory benefit of right of consideration by the
Court, only on the ground that the accused has
been tried in two or more cases separately and they
arise from distinct and separate offences arising
out of different transactions/incidents.
b) It is neither permissible nor possible to spell out
universal principle or formula which would be
applicable to all cases for exercise of power vested
in Court under Section 427(1) of the Code. Such
power and judicial discretion has to be exercised in
terms of the settled precepts of criminal
jurisprudence, sentencing policy and with
reference to the facts and circumstances of a given
case, where the previous and subsequent sentences
of imprisonment awarded to the accused are in two
or more cases for distinct and separate offences
arising out of different transactions/incidents and
even under different enactments."
27. Moreover, a full bench of the Kerala High Court in Mani vs. State of
Kerala: 1983 Cri LJ 1262 held that when no direction is given by the Trial
court that the sentences were to run concurrently, direction can be issued by
the High Court under inherent powers even if the stage of exercising
discretion Under Section 427(1) of the Code is over, in circumstances which
would serve the purposes mentioned in Section 482. The judgment of Kerala
High Court was noted with approval by the Full Bench of Bombay High
Court.
28. A Division Bench of the Andhra Pradesh High Court in V.
Venkateswarlu vs. State of A.P.: 1987 Cri LJ 1621 held that when two
convictions and sentences are passed against accused by two different courts
and orders have become final, on an application by accused under Section
482 that those sentences may be run concurrently, the High Court is
competent to issue such direction.
29. The Hon'ble Supreme Court in the case of Benson vs. State of
Kerala: (2016) 10 SCC 307 has considered the question of conviction of an
accused in separate trials and the fact that whether the sentences would run
concurrently or consecutively in exercise of powers under Section 427(1) of
Cr.P.C. In the said case, the petitioner before the Supreme Court was
convicted in four different cases and prayed for running of sentences
concurrently in all those four cases. The petitioner of said case was having
previous involvements in as many as 12 cases (cases involving
392/457/205/379/414/120-B of IPC). Despite, the Supreme Court in terms of
its judgment directed the running of substantive sentences concurrently.
30. The Hon'ble Supreme Court in the case of co-accused Vicky @ Vikas
(supra) considered the issue of running the sentences concurrently. The
petitioner of said case was convicted in 5 cases (including
NDPS/Kidnapping/assault on public servant/ robbery). He had undergone
only 1 year 6 months out of 7 years sentence. The Supreme Court directed
the running of sentences in three difference cases concurrently.
31. Even recently, this Court in Pankaj Verma @ Nikhil vs. State
(Crl.M.A. No.40714/2019 in Crl. A. No. 611/2018, decided on 12.06.2020)
passed directions for the concurrent running of the sentences of the
Petitioner (an accused in 4 cases) who had undergone about 1 year 5 months
out of the actual sentence of 5 years and was in judicial custody for about 7
years.
32. Facts of the case in hand are as per the available information,
Appellant has been languishing in jail for a protracted period of more than
12 years in F.I.R. No. 1013/2004, F.I.R. No. 67/2011 and FIR No. 64/2011.
He has already undergone a period of more than 4 years and 3 months in the
instant case (F.I.R. No. 1013/2004) and otherwise a total custody of about
12 years. If the remaining sentence awarded in F.I.R. No. 1013 of 2004 is
also directed to run consecutively, then the Appellant shall be subjected to
prolonged incarceration in prison for a total period of more than 24 years.
33. The Appellant was a young boy aged 18 years at the time of the
commission of the alleged crime in question. Presently, he is aged about 35
years. Further, poverty, illiteracy and misguidance resulting due to
impressionable young age, led into Appellant's implications.
34. The Appellant is an illiterate person belonging to a poverty-stricken
family which now comprises of an old and ailing mother only who has not
only been living a distressful life burdened with financial debts for several
years but also battling against several age-related diseases, since Appellant's
protracted incarceration. He has already reached to the age of maturity and
the crimes were committed as an adolescent person.
35. As per report dated 21.07.2020 filed by Probation Officer mentioned
above, the family of appellant is in great need of him. The appellant also
needs a fresh lease of life.
36. The appellant undertakes to conduct himself as per the accepted
norms of the society.
37. Regarding involvement of the applicant/appellant in 21 other cases
mentioned above, he has been convicted in 9 cases whereas acquitted in 6
cases.
38. It was argued by learned counsel for the appellant that the appellant
does not dispute the orders of conviction and sentence as raised in appeal,
however, seeking directions to run the sentence awarded in the present case
concurrently with the sentences awarded in other case mentioned above.
39. Keeping in view the facts and the law discussed above and the fact
that despite having criminal record of co-accused Vicky @ Vikas, the
Hon'ble Supreme Court directed to run concurrently, this Court is of the
considered opinion that present applicant/appellant deserves same relief as
awarded in case of co-accused named above.
40. Accordingly, I hereby direct that 7 years sentence awarded to the
appellant in case FIR No.1013/2004 registered at Police Station Uttam
Nagar shall run concurrently with the 10 years sentence awarded in case FIR
No.67/2011 registered at Police Station Swaroop Nagar.
41. In view of above, the present application is allowed and disposed of.
Crl.A. 769/2015
42. Keeping in view the submissions made by learned counsel for the
appellant, while maintaining the orders of conviction and sentence, the
present appeal is hereby dismissed.
43. The judgment be uploaded on the website forthwith.
(SURESH KUMAR KAIT)
JUDGE
JANUARY 11, 2021
ab
