Dismissed

Suresh Bhau Shinde v. the State of Maharashtra

Bombay HC25 Jul 2013WP/1332/2013

Case brief

AI extract

What is this about?

In a criminal writ petition, the petitioner sought to run his concurrent sentences for two dacoity convictions. Relying on precedents regarding concurrent sentences and discretionary powers under Section 427(1) Cr.P.C., the court examined the gravity of the offences and the petitioner's antecedents.

What did the court decide?

Application for concurrent sentencing and exercise of discretion under Section 427(1) Cr.P.C. dismissed.

Suresh Bhau Shinde Vs the State of Maharashtra — Criminal Trial and Appeal | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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rpa

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CRIMINAL WRIT PETITION NO. 1332 OF 2013

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Suresh Bhau Shinde .. Petitioner Vs. The State of Maharashtra .. Respondent

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Ms. Pooja Bhojne, Advocate for the Petitioner. Ms. V. S. Mhaispurkar, A.P.P. for Respondent – State.

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CORAM : K. U. CHANDIWAL, J. DATED : JULY 25, 2013.

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P.C. :

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Heard.

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2 Rule made returnable forthwith.

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3 The petitioner has urged to the order substantive

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sentence imposed upon him in criminal Appeal No. 175 of 2008

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arising out of Sessions Case No. 23 of 2008 along with 596 of 2008 and criminal Appeal No. 176 of 2012 arising out of Sessions Case No. 33 of 2008 along with 598 of 2008, be directed to run concurrently. This is more so, accused has completed sentence of six years and hence discretion needs to be exercised.

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4 The Petitioner, was convicted by the learned Assistant Sessions Judge in Sessions Case No. 33 of 2008 along with 596 of 2008 for offence punishable under Section 395 read with Section 397 of the Indian Penal Code (IPC) directing him to undergo R.I. for seven years and to pay fine. The Petitioner was also involved in another crime converted into Sessions Case No. 23 of 2008 along with 598 of 2008, wherein the same Judge directed the Petitioner – accused to undergo R.I. for seven years for offence punishable under Section 395 read with Section 397 thereof with other accused. In the Appeal before the learned Sessions Judge, he has modified the sentence reducing to it six years with fine of Rs.10,000/-.

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5 The learned counsel has placed reliance to the Judgment in the case of Jai Kishan Vs. State of Haryana¹ , wherein sentence recorded in two cases on same day were silent as to whether the sentence to run concurrently or consecutively. The said Court also found that few of the accused were subsequently acquitted by the Magistrate. Hence, the sentence were directed to run concurrently, in the interest of justice.

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2002 CRI. L.J. 412 (PUNJAB AND HARYANA HIGH COURT)

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6 In the matter of Ammavasai and Ant. Vs. Inspector

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of Police² , Supreme Court was dealing with the situation of the applicant facing four conviction for offence under Section 395 of the IPC and on each count he was directed to undergo R.I. for seven years. By calculation, the total period of imprisonment would have been 28 or 35 years in jail. To meet ends of justice Hon'ble Lordships reduced the sentence to 14 years and extended benefit.

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7 The learned counsel has placed reliance to the Judgment in Criminal Writ Petition No. 1437 of 2013 in the matter of Abidkhan @ Salman Mukhtar Khan Pathan V/s. State of Maharashtra of this Court wherein the Division Bench on 22^nd July, 2013, extended discretion upon the said petitioner in terms of Section 427 (1) of the Cr.P.C.

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8 In the case of Abidkhan @ Salman Mukhtar Khan

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Pathan (Supra) the Division Bench was at pains to record that said Abidkhan was 19 years old, he was not properly represented before the Court concern and the sentence was 2. 2000 CRI. L. J. 4662 (SUPREME COURT)

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slapped against him. He was in custody and had pleaded guilty. The Division Court also felt, the Appellate Court should have considered exercise of power under Section 427 of Cr.P.C. instead of observing that there is no provisions under statue. This was a condemned feature noted by the Division Bench. Division Bench noted that it showed non application of mind and ignorance of law on the part of both the counts.

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9 The moot question is, whether accused has a case to exercise discretion in terms of Section 427(1) of Cr.P.C. in facts and circumstances of the case. The petitioner/accused was an accused in armed dacoity wherein the victim's son suffered bleeding injuries, he was unconscious. One of the suspect is absconding. Evaluation of evidence of discovery and recovery illustrated the booty was recovered. The petitioner could not be said to be a first time offender for robbery or that the offence has taken place on the spur of the moment. He was involved in three cases of decoity of different police stations. In a choreographed manner the act of dacoity were planned and taken place where the petitioner had actually participated. In both the matters before the learned Judge, the evidence was

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cogent, coherent, which has been confirmed by the learned Sessions Court also. Learned Assistant Sessions Judge refused to exercise discretion considering antecedents of accused/petitioner. The accused–appellant was properly represented by a responsible advocate.

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10 Discretion under Section 427(1) of Cr.P.C. as sought, could not be extended to the accused – petitioner as the gravity of the matter the manner in which the offence is committed was against the society where terrorizing situation was created, the citizens in the area were suffering under panic. Even if a power exists to a Judge he has to apply the same based on facts of each case. Enormity of crime committed by petitioner/accused is relevant for measuring the sentence. In this case sentencing policy should equally be tested with brutality faced by gullible unwary victims in different parts of city. Consequently, I do not find any reason to exercise such discretion in favour of the petitioner. Writ petition is dismissed. Rule discharge.

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(K. U. CHANDIWAL, J.)

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Suresh Bhau Shinde v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Suresh Bhau Shinde v. the State of Maharashtra

Case brief

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What did the court decide?

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