Rajasthan High Court - Jodhpur

Dinesh vs State Of Rajasthan (2024:Rj-Jd:42418) on 17 October, 2024

Author: Anil Kumar Upman

Bench: Anil Kumar Upman

[2024:RJ-JD:42418]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 5561/2024

Dinesh S/o Bhanwar Lal, Aged About 19 Years, R/o Begana
Colony, Deedwana, Ps Deedwana, Dist. Nagaur. (Lodged In
Central Jail Ajmer)
                                                                    ----Petitioner
                                     Versus
State of Rajasthan, Through PP
                                                                  ----Respondent


For Petitioner(s)          :     Mr. Bhagat Dadhich
For Respondent(s)          :     Mr. Shriram Choudhary, PP



           HON'BLE MR. JUSTICE ANIL KUMAR UPMAN

Order

17/10/2024

1. Heard.

2. The petitioner has been convicted in following cases for

offences punishable under Sections 457 and 380 IPC by learned

Addl. Chief Judicial Magistrate, Didwana, Nagaur vide separate

judgments and sentenced to undergo three years' rigorous

imprisonment for each offence with fine of Rs.5,000/- for each

offence and in default of payment of fine, to further undergo 1

month's additional imprisonment for each offence. The petitioner

challenged his conviction and sentence, awarded by the learned

trial court, before the learned first appellate court i.e. learned

Addl. Sessions Judge, Didwana, Nagaur by way of filing appeals.

However, the appeals preferred by the petitioner also came to be

dismissed.






 [2024:RJ-JD:42418]                   (2 of 6)                    [CRLMP-5561/2024]


S.     Case Number           Date of Judgment                    Appeal Nos.
No.

3. By way of this criminal misc. petition under Section 482

Cr.P.C (Section 528 of BNSS-2023), the petitioner has prayed that

the sentences (referred to above) awarded to him may be ordered

to run concurrently.

4. Learned counsel for the petitioner submits that the petitioner

is languishing in jail in relation to his above conviction and

sentences passed by the learned trial court. He submits that the

learned trial court failed to exercise its discretion within the ambit

of Section 427 (1) Cr.P.C Learned counsel for the petitioner

contends that the consequence of serving sentence by the

petitioner one after the other that is to say consecutive sentence

would be that he has to undergo a total term of imprisonment of

36 years in respect of aforementioned cases, which would cause

serious miscarriage of justice. He has placed reliance on the

following judgments:

[2024:RJ-JD:42418] (3 of 6) [CRLMP-5561/2024]

1. Iqram vs The State of Uttar Pradesh and Ors. Reported in

(2023) 3 SCC 184

2. Gopal Das vs State of Delhi reported in AIR 1978 Delhi 138

5. Per contra, learned Public Prosecutor vehemently and

fervently opposes the submissions made by the learned counsel

for the petitioner and submits that the learned trial courts passed

the order by adequate application of mind and as such, no

indulgence of this Court's inherent power under Section 482

Cr.P.C. is required in the instant case.

6. I have heard and considered the submissions advanced at

bar and have gone through the material available on record.

7. Section 427 Cr.P.C. provides for sentence on offender who

has already been sentenced for another offence. The same is

reproduced hereinbelow for the sake of ready-reference:-

"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.

[2024:RJ-JD:42418] (4 of 6) [CRLMP-5561/2024]

(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."

8. As per Section 427 Code of Criminal Procedure, in normal

course a person already undergoing a sentence of imprisonment,

if sentenced on a subsequent conviction to imprisonment, such

imprisonment commence at the expiration of the imprisonment to

which he has been previously sentenced, but the court in its

discretion based on settled principles may direct that the

subsequent sentence shall run concurrently with previous

sentence. While exercising such discretion, the trial court,

appellate court or revisional court, as the case may be, keep in

mind several factors. In the instant case, the learned trial courts

did not exercise its discretion with respect to concurrency of

sentences and thus, there is absolutely non-consideration of the

issue about invoking this discretion which is causing serious

miscarriage of justice.

9. In Mohd. Zahid v State through NCB reported in 2021 SCC

OnLine SC 1183, Hon'ble Supreme Court Court interpreted the

provisions of Section 427 of CrPC after duly considering the

precedents 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

[2024:RJ-JD:42418] (5 of 6) [CRLMP-5561/2024]

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."

10. In Arjun Ram vs State of Rajasthan : 2016 (1) Cr.L.R. (Raj.)

346, Hon'ble Division Bench of this Court has held that "to meet

the ends of justice, power under Section 482 can be exercised if

Court arrives at the conclusion that the Trial Court, Appellate

Court or the Revisional Court as the case may be, failed in

completing the circuit of justice while invoking/not invoking the

discretion vested with it as per Section 427 Cr.P.C. If the

sentences are ordered to run consecutively, the petitioner has to

remain incarcerated for a period of nearly 36 years in respect of

his conviction and sentence in the aforementioned cases, which in

no manner can be said to be justifiable.

12. Having considered the overall facts and circumstances of the