State Of Gujarat vs Pravinbhai Amrutbhai
2023 Latest Caselaw 6003 Guj

                                                                                 NEUTRAL CITATION




     R/CR.RA/80/2013                             JUDGMENT DATED: 18/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL REVISION APPLICATION NO. 80 of 2013


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE J. C. DOSHI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                          STATE OF GUJARAT
                                Versus
                        PRAVINBHAI AMRUTBHAI
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Appearance:
MS ASMITA PATEL APP for the Applicant(s) No. 1
RULE SERVED for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                            Date : 18/08/2023

                            ORAL JUDGMENT

The applicant - State of Gujarat is in revision under the provisions of Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (for short "the Code") challenges the order passed below Exh.6 in Criminal Appeal No.81 of 2012 on 11/01/2013 by the learned 8th Additional Sessions Judge,

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Rajkot and the order passed below Exh. 6 in Criminal Case No.5089 of 2012 by the learned 18th Additional Chief Judicial Magistrate, Rajkot dated 2505/2012 insofar as it relates to extending benefit of set off under the scheme of Section 428 of the Code.

2. The short facts of the case are that respondent-accused was convicted by the judgment and order dated 30/11/2005 passed in Sessions Case No.18 of 2006 by the learned Additional Sessions Judge, Fast Track Court No.1, Bhavnagar and sentenced to undergo seven years RI for the offence punishable under Sections 363, 366 and 376 of the IPC.

2.1 That, during the course of his serving the sentence, respondent-accused was granted temporary bail by order dated 13/06/2007 passed in CR.MA No.6125 of 2007 for 15 days by this Court; however he did not return and remained absconded and thus another offence being CR No.I-36 of 2009 was registered under Section 51(1)b of the Prison Act before Kuvadava Police Station and Criminal Case No.5089 of 2012 was instituted wherein the respondent-accused pleaded guilty and at the end of trial, the learned trial Court awarded sentence of two years SI for the said offence by extending benefit of Section 428 of the Code.

2.2 Since the judgment and order passed in Criminal Case No.5089 of 2012 by learned trial Court has not been given effect by jail authority, respondent-accused preferred the appeal before the learned first appellate Court wherein it has also directed to implement the order passed by the learned trial Court which has

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given rise to the present revision application.

3. Heard learned APP Ms.Asmita Patel for the applicant - State. Though served, none appears for the respondent - accused.

4. Learned APP would submit that since the offence in which the respondent is awarded punishment is different and therefore, order for running the concurrent punishment cannot be passed. She would submit that the learned trial Court has failed to understand this legal aspect and as such the learned first appellate Court has also committed error of understanding the law.

4.1 She would further submit that in view of the provisions contained in Sections 426, 427 and 428 of the Code, if a person already undergoing a sentence of imprisonment is subsequently sentenced to imprisonment, such subsequent terms of imprisonment would normally commence at the expiry of first imprisonment and this is the normal rule. She would submit that the learned trial Court was required to see the fathom of such normal rule. She would further submit that normally the Court should not pass the order to make the sentence to run concurrently and in the present case since both the offences are different and distinct and not coming out from the one such incident, there is no requirement that the sentence passed in both the offence should run concurrently.

4.2 Learned APP by relying upon provisions of Section 426 to 428 of the Code would submit that the learned trial Court has

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totally misread the provisions of law as the said provisions do not provide to extend such benefit and yet the learned first appellate Court; without discussing this aspect ordered to implement the order of the learned trial Court to run the sentence concurrently. She would submit that, clear error on the part of the learned Court below occurred in passing impugned judgment. Upon such submissions, she would submit to allow this revision and to quash and set aside the impugned judgment and order.

5. At the outset, some admitted facts which are on record is required to be mentioned here as to ascertain the veracity of the impugned judgment and order: (01) The applicant - State has not challenged the order passed below Exh. 6 in Criminal Case No.5089 of 2012 by the learned 18th Additional Chief Judicial Magistrate, Rajkot dated 2505/2012 insofar as it relates to extending benefit of set off under the scheme of Section 428 of the Code and thus the said order has attained finality and it is still in operation and; (02) in the appeal preferred by the respondent-accused against the said order, the first appellate Court also did not do anything; but had given the effect of extending the benefit of Section 428 of the Code by relying upon certain case law of the Hon'ble Apex Court.

6. What is sought to be argued by learned APP that since the offence in which the respondent-accused is convicted are different and distinct and they do not arise out of the same incident punishment imposed for the said offence subsequent to the conviction cannot be ordered to run concurrently and it is in the teeth of provisions of Section 426 to 427 of the Code.

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7. At this stage, this Court would like to refer to provisions of Section 426 of the Code which deals with sentence on escaped convict when to take effect. When a convict facing a sentence of death, imprisonment for life or fine is passed, is escaped, such sentence shall, subject to the provisions of the Code taking effect immediately. Sub-section 2(a) of Section 426 of the Code speaks that in case of severer sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately. Sub-section 2(b) of Section 426 speaks that when sentence is not severer which convict was undergoing and he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence.

8. Section 427 of the Code deals with sentence on offender already sentenced for another offence Whereas Section 428 of the Code deals with the period of detention undergone by the accused is to give set off against the sentence or imprisonment. Meaning thereby, offence in which the convict had undergone the period of detention, during the investigation, inquiry or trial of the same case but before the date of such conviction, he shall given the set off against the term of imprisonment imposed on him on such conviction.

9. Having perused the aforesaid provisions, what appears is that Section 427 of the Code deals with sentence on offender already sentenced for another offence. This provision attracts in the case on hand. Section 427 of the Code reads thus:

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"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."

10. In terms of sub-section (1) of Section 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. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion should be exercised by the Court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the

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offence/offences and the facts and circumstances of each case.

11. In V.K. Bansal v. State of Haryana and Anr. (2013) 7 SCC 211, it was held by the Apex Court as under:

"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 the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket 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 fact situation in which the question of concurrent running of the sentences arises. "

The Hon'ble Apex Court after observing and finding went on to club various crime in respect of which sentence imposed upon the appellant therein in three groups.

12. In Benson vs. State of Kerala [2016 (10) SCC 307] , the Hon'ble Apex Court after referring to the case of V. K. Bansal (supra) directed that the substantive sentence imposed on the appellant therein to run concurrently.

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13. In Mohd Zahid vs. State through NCB, 2021 SCC Online SC 1183, the Apex Court interpreted the provisions of Section 427 of the Code after considering the precedent 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 sentence to run concurrently with the previous sentence. "

14. In Iqram vs. State of Uttar Pradesh [2023 (3) SCC 184] , the Hon'ble Apex court in regards to Section 427 of the Code has made following observations in paragraph 10 which reads thus:

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"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 that the subsequent sentence following a conviction shall run concurrently with the previous sentence."

15. What perceives from the above that sub-section (1) to Section 427 confers a discretion on the Court - whether to direct that a subsequent sentence following a conviction shall run concurrently with the previous sentence or not. In the present case, learned trial Court passed an order extending the benefit of set off of the sentence of two years in a subsequent conviction. Though the order is not happily worded; but the idea behind passing such order is to give effect of sentence of two years to run concurrently. It is highlighted aspect that this order has not been carried to challenge by the State. In that way the said order has attained finality. The order of the appeal which is impugned herein was filed by the respondent for giving effect of order of trial Court. The appeal was allowed and the effect of the order passed by the learned trial Court has been given. Jail authority was given discretion to implement the judgment and order passed by the learned trial Court.

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16. Since, the judgment and order passed by the learned trial Court under the discretionary jurisdiction conferred upon him, and also confirmed by the learned first appellate Court appears to be passed on exercise of sound judicial principles, under the limited revisional jurisdiction, no infirmity is noticed. Learned APP has failed to point out that discretion exercised by the learned Court below is bad or arbitrary or wooden. In absence of any illegality in the impugned judgment and order, this revision must fail as it sans merit. Accordingly, it is rejected. Rule is discharged. Interim-relief stands vacated.

(J. C. DOSHI,J) sompura