Jharkhand High Court

Nitish Kumar vs The State Of Jharkhand on 19 May, 2023

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      IN THE HIGH COURT OF JHARKHAND, RANCHI
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W.P.(Cr.) No. 561 of 2022

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Nitish Kumar, age 32 years around, S/o Shiv Kumar Prasad, R/o Village Pipartoli, P.O. and P.S. Khunti, District Khunti, Jharkhand .... Petitioner

-- Versus --

1.The State of Jharkhand

2.Department of Home, Jail and Disaster Management, Ranchi

3.Jail Superintendent, Birsa Munda Jail, Hotwar, Ranchi .... Opposite Parties

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PRESENT HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner        :-    Mr. Prem Mardi, Advocate
For the State             :-    Mr. Ravi Kerketta, SC-VI
                                Mr. Deepika Jajower, AC to SC-VI
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C.A.V On 16.05.2023                 Pronounced On 19th /May, 2023

This petition has been filed for direction upon the respondent

nos.2 and 3 to forthwith remit the petitioner for the conviction already

undergone under Khunti P.S.Case No.176 of 2011, corresponding to G.R.Case

No.488 of 2011, wherein the petitioner has been convicted under section 25(1-

b)a/26(i) of the Arms Act whereby petitioner has been sentenced for 3 years

R.I. with fine Rs.2000/- under section 25(1-b)a of Arms Act and two years

simple imprisonment under section 26(i) of Arms Act and in case of default of

payment of fine three months simple imprisonment.

2. The learned counsel for the petitioner has submitted that the

petitioner is in custody since 24.01.2014 for life and conviction in Khunti

P.S.Case No.176 of 2011, G.R. No.488 of 2011, passed by order dated

31.8.2018 under section 25(1-b)(a)/26(i) of the Arms Act. The petitioner has

been sentenced for three years of rigorous imprisonment with Rs.2000/- fine

under section 25(i)(b)(a) of the Arms Act and two years of simple

imprisonment under section 26(i) of the Arms Act and in case of default of

payment of fine three months simple imprisonment and both the sentences

are directed to be served concurrently. He submitted that the petitioner was

earlier sentenced for life imprisonment in Khunti P.S.Case No.79 of 2013 to

undergo imprisonment for life together with fine of Rs.25,000/- and he was in

jail custody and subsequently, under Arms Act, he has been convicted by

judgment dated 31.8.2013. He submitted that since the petitioner was already

in custody since 2014, for life imprisonment, the sentenced passed under

Arms Act is required to be served by the petitioner concurrently and for that

he referred to sub section 2 of section 427 of the Cr.P.C. Relying on this

section, he submitted that the direction may kindly be issued that the

petitioner will serve sentence concurrently in both the cases.

3. On the other hand, learned counsel for the respondent State has

submitted that same plea was taken by the petitioner in Cr.Appeal (DB) No.531

of 2016 and by order dated 01.11.2022 the State has been directed to verify

as to whether petitioner/appellant has already completed his sentence in

Khunti P.S.Case No.176 of 2011 or not. He further submitted that the

petitioner was released on parole from 19.2.2021 to 19.3.2021 and absconded

from custody from 20.3.2021 to 31.5.2021 and the custody report of the

petitioner is annexed as Annexure-B. In life imprisonment case he has served

7 years, 3 months and 9 days and he has been remanded in Khunti P.S.Case

No.176 of 2011.

4. He relied in the case of Mohd Zahid v. State through NCB, (2022)

12 SCC 426, the Hon'ble Supreme Court has interpreted the section 427 of the

Cr.P.C. in the following manner:

"9.2. -----

Therefore on a fair reading of Section 427CrPC, when a person who is 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. Meaning thereby the sentences in both the conviction shall run consecutively. However, there is an exception to that, namely, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. There is one another exception. As per sub-section (2) of Section 427CrPC 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. Therefore, in the aforesaid two cases only the subsequent sentence shall run concurrently with previous sentence. Otherwise the subsequent sentence shall run consecutively and the imprisonment in subsequent sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced."

14. In Neera Yadav [Neera Yadav v. CBI, (2017) 8 SCC 757 : (2017) 3 SCC (Cri) 515] while interpreting/considering Section 427CrPC it is observed and held that Section 427CrPC deals with sentence passed on an offender who is already sentenced for another offence and the power conferred on the Court under Section 427 to order concurrent sentence is discretionary. It is further observed that the policy of the legislature is that normally the sentencing should be done consecutively. It is further observed that only in appropriate cases, considering the facts of the case, the court can make the sentence concurrently with an earlier sentence imposed. It is further observed that the discretion exercised by the sentencing court to direct the concurrency will have to be exercised on sound principles and not on whims. Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed. It is further observed and held in the said decision that it is well settled that where there are different transactions, different crime numbers and the cases have been decided by the different judgments, concurrent sentences cannot be awarded under Section 427CrPC. It is further observed that however, the general rule that there cannot be concurrency of sentences if conviction relates to two different transactions, can be changed by an order of the court."

5. In view of above submission, it appears that the petitioner has

already convicted for life in Khunti P.S.Case No.79 of 2013 and subsequently

he has been convicted under the Arms Act for three years and was remanded

later on in that case. Section 427 of the Cr.P.C is quoted hereinbelow:

"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 later 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."

6. This Section, in no uncertain terms shows that a prisoner will be

entitled to have two Life Sentences, imposed on him in different cases, to run

concurrently. This provision stands to commonsense and logic. There is a

subtle distinction between Section 427 (1) & 427(2), Cr. P.C. Under Section

427(1), Cr. P.C., if the Life Sentence is awarded to a Prisoner already

undergoing a lesser sentence, then the subsequent Life Sentence will start

running only after the expiry of the lesser sentence unless directed by the

Court otherwise. Under Section 427(2), Cr. P.C., if the life sentence or lesser

sentence is awarded to a person, who is already undergoing Life Sentence,

then the subsequent sentence, be it life or lesser, shall run concurrently with

the earlier Life Sentence. In Gopal Vinayak Godse v. State of

Maharashtra, AIR 1961 SC 600, the Constitution Bench of the Supreme

Court held that a sentence for imprisonment for life means imprisonment for

the whole of the remaining period of the convicted person's natural life.

7. Section 427(2), Cr. P.C. is a direction to the prison authorities to

treat two Imprisonments as concurrent and there is no scope for Court's

charity here, because it is a legislative guarantee. The Courts cannot take

away this right nor the Jail Authorities deny the Prisoner this right. It is

manifestly clear that the Prisoner need not have to invoke any jurisdiction, be

it under Section 482, Cr. P.C. or under Article 226 of the Constitution of India,

and cringe for mercy to have two sentences run concurrently.

8. Section 427(2) of the Criminal Procedure Code has consciously

made a provision bringing it to the notice of the Court that, if an accused who

is undergoing life imprisonment is subsequently awarded a sentence of minor

imprisonment, then the sentences will have to be made to run concurrently.

Apart from the normal argument that the human being has only one life span

and if the remainder of that life span has to be spent in jail, then there can be

no question of directing that the remaining life sentences would have to run

consecutively because otherwise it would lead to an infructuous situation

whereby the remaining sentences cannot be carried out.

9. In the case in hand, the learned court has not passed any order

under section 427 of the Cr.P.C so as to allow subsequent sentence to run

concurrently. Further section 427 Cr.P.C read with section 31(i) Cr.P.C suggest

that sentences awarded by the court for several offence committed by the

prisoner shall run concurrently unless the court directs otherwise except where

such sentences include imprisonment of life which can and must run

concurrently and more than one life sentences was awarded to the prisoner,

the same would get superimposed over each other and this will imply the

prisoner is granted the benefit of any remission of commutation qua one such

sentence the benefit of such remission could not ipso facto extend to the

other.

10. Coming to the facts of the present case, admittedly, consequently

the petitioner was sentenced to undergo three years imprisonment made

under Arms Act. Looking into sub section 2 of section 427 Cr.P.C it is crystal

clear that provision is absolutely placed and the law lays down that under the

circumstances in the matter subsequently the sentence has to run concurrently

and the learned court has chosen not to pass any order on that point. A

reference may be made to the recent judgment of Hon'ble Supreme Court in

the case of Iqram v. The State of Uttar Pradesh and Ors., (2022) 16 S.C.R 51.

Para 10 of the said judgment is quoted below:

"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."

11. The above judgment was passed by the Hon'ble Supreme Court

observing that once the petitioner espoused the remedy of moving a writ

petition under Article 226 of the Constitution of India, the High Court ought to

have noticed the serious miscarriage of justice for not exercising power by trial

court under section 427 (1) Cr.P.C.

12. In view of above and considering sub section 2 of section 427

Cr.P.C, the sentence of three years passed against the petitioner in Khunti

P.S.Case No.176 of 2011, corresponding to G.R.Case No.488 of 2011 shall run

concurrently and the judgment dated 31.8.2018 passed in aforesaid case is

modified to the above extent.

13. W.P.(Cr.) No.561 of 2022 is allowed in the above terms and

stands disposed of.