Telangana High Court

Mohd. Abdul Gaffer Mohd. Gaffer vs State Of Telangana on 26 February, 2024

           THE HON'BLE SMT. JUSTICE T. MADHAVI DEVI

                 CRIMINAL PETITION No.12940 of 2023

ORDER:

In this Criminal petition, Petitioner is seeking a direction to

the authorities to run the sentences awarded to the petitioner in

various Crime numbers concurrently and not consecutively. The

petitioner has given the details of the cases in which he has been

convicted and the same are as follows:

Sl.No. Cr.No. C.C.No. Conviction Sentence Date of Court u/S Conviction

1 81 of 2014 of 64 of 382 IPC 3 years 11.05.2016 VI Addl.

         PS. Humayun       2015                                        CMM, Hyd.
             Nagar

 2       83 of 2014 of     65 of     382 IPC    3 years   11.05.2016    VI Addl.
         PS. Humayun       2015                                        CMM, Hyd.
             Nagar

 3       328 of 2014 of    71 of     382 IPC    3 years   11.05.2016    VI Addl.
         PS. Humayun       2015                                        CMM, Hyd.
             Nagar

 4       379 of 2014 of    75 of     382 IPC    3 years   11.05.2016    VI Addl.
         PS. Humayun       2015                                        CMM, Hyd.
             Nagar

 5       554 of 2016 of   987 of     411 IPC    2 years   21.06.2016    I Addl.
          PS. Saifabad    2017                                         CMM, Hyd.

 6       203 of 2016 of   743 of     392 IPC    3 years   17.07.2018    II Addl.
           PS.Sultan      2017                                         CMM, Hyd.
             Bazar

 7       159 of 2016 of   727 of     392 IPC    3 years   27.10.2017    VIII Addl.
          PS.Mirchowk     2016                                         CMM, Hyd.
                                   2                                    TMD,J

2. It is submitted that the date of offence in C.C.Nos.64 & 65 of

2015 is 08.03.2014 and the date of offence in other Crime Numbers

were all subsequent thereto and the last offence in C.C.No.727 of

2016, being dated 11.10.2016. It is submitted that the petitioner was

arrested on 21.10.2014 in respect of C.C.Nos.64, 65, 71 & 75 of 2015

and he was released on bail. Again he was arrested on 30.06.2016 in

C.C.No.987 of 2017 and was later released on bail. He was again

arrested on 29.10.2016 in C.C.No.743 of 2017 & C.C.No.727 of 2016

and since then, the petitioner claims to be in judicial custody and that

he has spent for more than 7 years 2 months in the judicial custody.

It is submitted that the judgments in all the crimes were delivered

when the petitioner was in judicial custody and the Learned

Magistrate has only ordered set off the remand period and directed to

serve remaining period of sentence. It is submitted that maximum

sentence that could be awarded in each case was three years and the

sentence of three years has expired on 29.10.2019 and if the sentence

of three years awarded in other cases are also ordered to run

concurrently, the petitioner would have been released on 29.10.2019.

But, since there was no such direction from the Court, the sentences

are being run consecutively and the petitioner was made to remain in

judicial custody, causing irreparable loss and injury to him. He, 3 TMD,J

therefore, seeks a direction to the concerned authorities to allow the

punishments to run concurrently.

3. Learned Assistant Public Prosecutor, however, objected to the

above submissions.

4. Having regard to the rival contentions and the material on

record, this Court finds that it is the Trial Court which conducts the

trial and imposes the punishment. Whether such punishments are to

run consecutively or concurrently will be as per the directions of the

Trial Court. When a person is convicted at one trial of two or more

offences, under Section 31 of Cr.P.C. the Court can direct that such

punishments shall run concurrently. In this case, the petitioner is

seeking a direction for running the sentences concurrently. For the

sake of ready reference and clarity, Section 427 of Cr.P.C. is

reproduced hereunder:

Section 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 4 TMD,J

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. From a literal reading of the above, it is seen that it is the

trial Court which has to direct that the subsequent sentence shall run

concurrently with the previous sentence. The Hon'ble Supreme Court

in the case of Sharad Hiru Kolambe vs. State of Maharashtra 1, has

held that unless the Court directs that substantive sentences should

run concurrently, the normal principle is that sentences would

commence one after the expiration of the other, i.e., consecutively.

Now the question before this Court is whether in exercise of its

inherent jurisdiction under Section 482 of Cr.P.C., the Court has

power to direct sentences to run concurrently.

6. The Single bench of this Court in the case of Gandikota

Narasaiah Vs. Superintendent, Central Prison, Warangal 2, has held

as under:

"Indian Penal Code, 1860, Section 395 - Dacoity - Accused sentenced to imprisonment in three cases - Direction being sought for all those sentences to run concurrently. High Court has power to direct sentences to run concurrently in exercise of its inherent jurisdiction under Sec.482 Cr.P.C. in accordance with Section 427 Cr.P.C. However, High Court may refuse to give such a direction in the case of professional dacoits-offenders who go on committing offences number of times. Relief of running of

(2018) 18 SCC 718

1999 (3) ALT 615 5 TMD,J

sentences concurrently already granted by trial Court in two cases of dacoity committed on different dates. Petitioner-accused sentenced to imprisonment in another offence of dacoity committed some months later.

Petitioner-accused wants a direction to run concurrently the sentences passed in earlier two cases of dacoity with the sentence passed in the later case of dacoity. Such a request not made before trial Court and before Appellate Court which dismissed the appeal. Court has to exercise its inherent Power sparingly and in rare cases to secure ends of justice. Such a relief that may be granted should not be such as to give licence to offenders who appear to be professional offenders to make offences number of times. Held that such a direction should not be given on the facts of the case."

Thus, it has been held that this Court can exercise its

inherent jurisdiction under Section 482 of Cr.P.C. but, with due

regard to the facts and circumstances of the case.

7. Therefore, before passing any order under Section 482 of

Cr.P.C., this court has to examine whether the petitioner is a habitual

offender who is likely to commit the offence again after release from

Jail.

8. On going through the judgments in the respective C.Cs.,

against the petitioner herein, it is noticed that the petitioner is alleged

to have committed offences on 30.08.2014, 30.09.2014, 20.09.2016,

25.09.2016 and 11.10.2016 either in the nights or in the early

mornings when there was nobody around and even after being in Jail