Rajasthan High Court - Jodhpur

Aarfi Khan @ Munder vs State Of Rajasthan on 28 March, 2022

Bench: Pushpendra Singh Bhati

                                     (1 of 10)                 [CRLR-931/2021]


    HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                     JODHPUR

S.B. Criminal Revision Petition No. 931/2021

Aarif Khan @ Munder S/o Sh. Islamo @ Salamudeen Kaaji, Aged About 24 Years, Ward No. 18, Nohar, Dist. Hanumangarh, Rajsthan. (Presently Lodged In Jail, Bikaner).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent Connected With S.B. Criminal Revision Petition No. 932/2021 Aarif Khan @ Munder S/o Sh. Islamo @ Salamudeen Kaaji, Aged About 24 Years, Ward No. 18, Nohar, Dist. Hanumangarh, Rajsthan. (Presently Lodged In Jail, Bikaner).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent S.B. Criminal Revision Petition No. 933/2021 Aarif Khan @ Munder S/o Sh. Islamo @ Salamudeen Kaaji, Aged About 24 Years, Ward No. 18, Nohar, Dist. Hanumangarh, Rajsthan. (Presently Lodged In Jail, Bikaner).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent S.B. Criminal Revision Petition No. 934/2021 Aarif Khan @ Munder S/o Sh. Islamo @ Salamudeen Kaaji, Aged About 24 Years, Ward No. 18, Nohar, Dist. Hanumangarh, Rajsthan. (Presently Lodged In Jail, Bikaner).

----Petitioner Versus State Of Rajasthan, Through Pp

----Respondent

S.B. Criminal Revision Petition No. 935/2021 Aarif Khan @ Munder S/o Sh. Islamo @ Salamudeen Kaaji, Aged About 24 Years, Ward No. 18, Nohar, Dist. Hanumangarh, Rajsthan. (Presently Lodged In Jail, Bikaner).

                                                               ----Petitioner
                                Versus
State Of Rajasthan, Through Pp


                                              (2 of 10)                   [CRLR-931/2021]


                                                                      ----Respondent

S.B. Criminal Revision Petition No. 936/2021 Aarif Khan @ Munder S/o Sh. Islamo @ Salamudeen Kaaji, Aged About 24 Years, Ward No. 18, Nohar, Dist. Hanumangarh, Rajsthan. (Presently Lodged In Jail, Bikaner).

                                                                         ----Petitioner
                                        Versus
State Of Rajasthan, Through Pp
                                                                      ----Respondent


For Petitioner(s)             :     Mr. Harshad Bhadu for
                                    Mr. Vinod Kumar Sihag
For Respondent(s)             :     Mr. Mukesh Trivedi, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

28/03/2022

In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in Court, for the safety of

all concerned.

Learned counsel for the petitioner has shown the order dated

05.05.2018 passed by this Court in Criminal Revision Petition

No.251/2017 Anup Khati @ Kaliya Vs. State of Rajasthan. The said

order dated 05.05.2018 reads as follows:-

"By these criminal misc. petitions, the petitioner-Anup Khati @ Kaliya seeks direction to the effect that the sentences awarded to him by Additional Chief Judicial Magistrate No.3, Bikaner (for short 'the trial court' hereinafter) in four cases for the offences punishable under sections 457 and 380 IPC and reduced by learned Sessions Judge, Bikaner (for short 'the appellate court' hereinafter), details of which are being provided in later part of this order, may be ordered to run concurrently.

The facts necessary for disposal of the present misc. petition are that the petitioner was tried, convicted and sentenced by the trial court for the offences punishable under sections 457 and 380 IPC, details of which are given hereunder:

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S.   Case     Court          Date of         Sentence default Appeal
No   No.                     decision
1.   924/12 ACJM No.         01.08.2013      457,380 of IPC 5    Session Judge, Bikaner
            3, Bikaner                       years SI Penalty    Appeal No. 148/13
                                             2000 in default     Decision 18.12.13,
                                             of penalty of six   Appeallate Court
                                             months              Sentence 4 years
2.   926/12 ACJM No.         3.12.13         457,380 of IPC 5    Session Judge, Bikaner
            3, Bikaner                       years SI Penalty    Appeal No. 2/14
                                             3000 in default     Decision 19.06.14,
                                             of penalty of six   Appeallate Court
                                             months              Sentence 4 years
3.   927/12 ACJM No.         15.2.14         457,380 of IPC 5    Addl. Session Judge,
            3, Bikaner                       years SI Penalty    No. 3 Bikaner Appeal
                                             3000 in default     No. 24/16
                                             of penalty of six   Decision 5.5.16,
                                             months              Appeallate Court
                                                                 Sentence 3 years 9
                                                                 months SI
4.   990/12 ACJM No.         20.3.14         401 IPC 3 years     Addl. Session Judge,
            3, Bikaner                       RI penalty 2000     No. 3 Bikaner Appeal
                                             in default of       No. 17/16
                                             penalty six         Decision 25.04.16,
                                             months              Appeallate Court
                                             457,380 of IPC 5    Sentence 3 years 9
                                             years SI Penalty    months SI
                                             5000 in default
                                             of penalty of six
                                             months
5.   991/12 ACJM No.         5.9.14          457,380 of IPC 5    Addl. Session Judge,
            3, Bikaner                       years SI Penalty    No. 3 Bikaner Appeal
                                             5000 in default     No. 25/16
                                             of penalty of six   Decision 5.5.16,
                                             months              Appeallate Court
                                                                 Sentence 3 years 9
                                                                 months SI

The petitioner was indulged in commission of theft and after filing of the complaints, FIRs were lodged against him at various Police Stations of Bikaner District and police after thorough investigation into the allegations levelled in the FIRs, filed charge-sheets before the concerned court, which convicted and sentenced the petitioner as aforesaid.

As the sentences awarded to the petitioner are in 5 different cases, he is being made to suffer sentences one after another (consecutively), therefore, the present petitions have been preferred by the petitioner with a prayer that a direction needs to be issued that the petitioner's sentences should run concurrently.

It is contended by learned counsel for the petitioner that the allegations against the petitioner in all the matters are of similar nature and all the cases are of years 2011, 2012 and 2013.

It is argued that going by the sentence calculation, which has been awarded to the petitioner would effectively mean that the total length of sentences in aggregate would be around 19 years and 3 months.

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It is also argued that the petitioner has already served more than seven years' sentence out of total sentence of 19 years and 3 months.

It is further argued that though the petitioner was awarded those sentences in different cases but all the cases are of similar nature. It is also averred that the maximum sentence in respect of present kind of offences is 4 years imprisonment and if all the sentences are allowed to run consecutively petitioner would remain behind the bars up to year 2031.

Learned counsel for the petitioner has placed reliance on decision of this Court dated 17.02.2017 rendered in Rajender vs. State of Rajasthan, S.B.Cr.Misc. (Pet.) No.2883/2014.

Learned Public Prosecutor has opposed the prayer of the petitioner for concurrent running of all the sentences awarded to him in 5 different cases by the trial courts for the offences punishable under sections 457 and 380 IPC and prayed for dismissal of these criminal misc. petitions.

Learned Public Prosecutor has placed reliance on decision of Division Bench of this Court rendered in Shimbhu Singh vs. State of Rajasthan, reported in (2016) 1 CriLR 467 and argued that as per the said decision passed by the Division Bench, a petition under Section 482 CrPC filed by the petitioner with a prayer for ordering that the sentences awarded in different cases be directed to run concurrently, is liable to be dismissed.

Heard learned counsel for the parties.

This Court in Rajender vs. State of Rajasthan (supra) has held as under:

"Section 427 CrPC is relevant in the context, 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 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 of 10) [CRLR-931/2021]

As per sub-section (1) of section 427 CrPC when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment 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:

As per second proviso to sub-section (1) of section 427 CrPC 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.

Sub-section (2) of section 427 CrPC provides that 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.

From the above, it can be gathered that the intention of legislature is that even the life convicts have been held entitled to benefit of subsequent sentence, being run concurrently, be it life term or of any lesser term then the different yardstick cannot be applied for those persons, who have been awarded sentence of lesser duration than life unless there are compelling reasons to do so. In this case, I do not see any compelling reason to order that all the sentences awarded to the petitioner in all cases would run consecutively."

It is noticed that all the complaints against the petitioner for commission of offences punishable under Sections 457 and 380 IPC were filed in the years running from 2011 to 2013, wherein, similar allegations of theft were levelled by the complainants against the petitioner.

In all the 5 complaints filed against the petitioner, he has been convicted for the offences punishable under Section 457 and 380 IPC and has been sentenced as aforesaid. The maximum sentence awarded to the petitioner is 4 years' simple imprisonment along with fine.

The substantive sentences awarded to the petitioner in all the 5 cases, if calculated jointly, come to 19 years and 3 months and as per information supplied by the Deputy Superintendent, Central Jail, Bikaner vide letter dated 26.04.2018 sent to G.A. Office, the petitioner has already served more than seven years' sentence.

Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and in view of the decision of this Court rendered in Rajender vs. State of Rajasthan (supra), I am of the considered view

(6 of 10) [CRLR-931/2021]

that ends of justice would be met if the petitioner is granted benefit of section 427 of the CrPC and in my opinion, it would not be inconsistent with the administration of criminal justice.

So far as the decision of Division Bench of this Court rendered in Shimbhu Singh vs. State of Rajasthan (supra) is concerned, the same has no applicability in the present case as the petitioner is praying for a direction that the sentences awarded to him in different cases be run concurrently, which are subject-matter of the criminal revision petitions filed by petitioner before this Court and they have not yet been decided, therefore, it cannot be said that this Court has become functus officio. In Shimbhu Singh vs. State of Rajasthan (supra), the petition under section 482 CrPC was filed after the decision of the High Court in the criminal appeal and, therefore, the Division Bench has held that after final decision in the appeal, the petition under section 482 CrPC with a prayer for issuing directions to run different sentences concurrently is not maintainable as this Court has become functus officio.

In such circumstances, the present misc. petitions filed under Section 482 CrPC are allowed and it is ordered that the substantive sentences awarded to the petitioner in the above referred 5 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively. Needless to say, if the petitioner pays the fine/compensation now, he is not required to undergo default sentences (sentences awarded by the trial courts in default of payment of fine/compensation).

A copy of this order be placed in S.B.Cr. Revision Petition Nos. 251/2017, 228/2017, 227/2017 and 232/2017."

Learned counsel for the petitioner submits that he does not

wish to make submissions on the merits of the case, but seeks

limited indulgence, in light of the fact that all the cases are of the

same period i.e. Year 2016-17.

Learned counsel for the petitioner further submits that all the

offences are of similar nature and the maximum punishment

awarded is seven years, and unless an order of concurrent running

(7 of 10) [CRLR-931/2021]

of the sentence is passed, the petitioner shall remain in custody

for about 34 years.

Learned counsel for the petitioner also submits that the

nature of offence is similar and the timing of the offence is almost

in one year.

Learned counsel for the petitioner further submits that in the

judgment of Anup Khati (supra), the Hon'ble Court has

considered the length of sentence as well as the offence

committed, which was of the similar nature and also the

judgments rendered by this Hon'ble Court in Rajender vs. State

of Rajasthan, S.B.Cr.Misc. (Pet.) No.2883/2014 decided on

17.02.2017 and judgment rendered by a Division Bench of this

Hon'ble Court in Shimbhu Singh vs. State of Rajasthan,

reported in (2016) 1 CriLR 467.

Learned Public Prosecutor opposes on the ground that the

present petitions are revision petitions with the limited

jurisdiction.

This Court, in line with the judgment rendered by the Hon'ble

Apex Court in Amit Kapoor Vs. Ramesh Chander and Ors.

reported in (2012) 9 SCC 460, finds that the inherent powers of

the High Court, under Section 482 Cr.P.C. may be exercised even

in the revisional jurisdiction of the Court, and there the inherent

powers of the Court under Section 482 Cr.P.C. are of a wide

amplitude and may be applied in the discretion of the Court, owing

to the facts and circumstances of a given case. Relevant portion of

the said judgment reads as follows:

"The jurisdiction of the Court under Section 397 can be exercised so as to examine the correctness, legality or proprietary of an order passed by the trial court or the inferior court, as the case may be. Though the

(8 of 10) [CRLR-931/2021]

section does not specifically use the expression 'prevent abuse of process of any court or otherwise to secure the ends of justice', the jurisdiction under Section 397 is a very limited one. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 but ultimately it also requires justice to be done. The jurisdiction could be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. On the other hand, Section 482 is based upon the maxim quando lex liquid alicuiconcedit, conceder videtur id quo res ipsa esse non protest, i.e., when the law gives anything to anyone, it also gives all those things without which the thing itself would be unavoidable. The Section confers very wide power on the Court to do justice and to ensure that the process of the Court is not permitted to be abused.

It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section

397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor and Ors. v. State of Punjab and Ors. MANU/SC/0210/1979 : AIR 1980 SC 258 : (1980) 1 SCC 43]}. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the

(9 of 10) [CRLR-931/2021]

Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court's jurisdiction. The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction."

Looking into the fact that the same order has been passed in

S.B. Criminal Revision Petition No.251/2017 may be at the

instance of Section 482 Cr.P.C., this Court does not wish to enter

into the technicality, but following the precedent law of Anup

Khati @ Kaliya (supra), the present revision petitions deserve to

be disposed of.

In view of the above, the present petitions are disposed of

and it is ordered that the substantive sentences awarded to the

petitioner in the above referred 5 cases would run concurrently.

However, the petitioner will have to serve default sentences as the

provisions of section 427 of the Cr.P.C. do not permit a direction

for concurrent running of substantive sentences with the