Convict petitioner sought declaration that sentences for distinct but connected offences run concurrently. High Court interpreted silence in impugned order as impermissible when offences are connected, applying Section 31 CrPC and Section 71 IPC.
Sentences awarded to petitioner for connected offences declared to run concurrently.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1681 OF 2019
Syed Noor s/o Syed Ibrahim,
Age : 47 years, Occu. Nil,
Convict NoC-8658, at present
in Central Prison, Harsool,
Aurangabad
PETITIONER
VERSUS
1. The State of Maharashtra, through Secretary, Home Department, Mantralaya, Mumbai
2. The Superintendent of Central Prison, Harsool, Aurangabad
RESPONDENTS
Smt. A.N. Ansari, Advocate (appointed) for
the petitioner
Mr. K.S. Patil, A.P.P. for the respondents/State
CORAM :T.V. NALAWADE AND
S.M. GAVHANE, JJ.
DATE :19th NOVEMBER, 2019
JUDGMENT (PER : T.V. NALAWADE, J.) :
1. Rule. Rule made returnable forthwith and with
the consent of learned counsel for the petitioner and
learned A.P.P., heard finally.
2.The petitioner – convict had sent an
criwp1681-2019
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application through Jail Superintendent, Central Prison,
Aurangabad whereby he had requested to decide as to
whether the sentences awarded to him in Sessions Case
No. 117 of 2001 need to be treated as concurrent or he
will have to undergo the sentences one after another
i.e. consecutively.
3.The petitioner is convicted for the offences
punishable under Sections 498-A and 306 of the Indian
Penal Code (For short, “IPC”). He has been sentenced to
suffer rigorous imprisonment for three years for the
offence under Section 498-A of IPC. For the offence
punishable under Section 306 of IPC, sentence of
rigorous imprisonment for five years has been awarded to
the petitioner. The trial Court has not mentioned in
its order as to whether the substantive sentences will
run concurrently or they are to be undergone by the
petitioner consecutively. The appeal filed by the
petitioner against the judgment of conviction and
sentence in this Court was dismissed. The point now
raised was not raised in the appeal which came to be
decided by this Court. The judgment passed by this
Court was taken upto the Supreme Court of India.
However, apparently this point was not raised before the
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Supreme Court and the Supreme Court also dismissed the
proceedings. Since the petitioner is behind the bars,
the counsel was appointed through High Court Legal
Services Sub-Committee, Aurangabad and she was supplied
with all the papers and thereafter, she was heard.
4.The learned counsel (appointed) for the
petitioner placed reliance on the observations made by
the Supreme Court in the case of Gagan Kumar V. State of
Punjab 2019 DGLS(SC) 255. In that case, the accused was
convicted and sentenced for the offences punishable
under Sections 279 and 304-A of IPC. The learned
Judicial Magistrate First Class had not mentioned in the
order as to whether two sentences awarded to the accused
under the aforesaid two provisions would run
concurrently or consecutively. The matter was taken to
the High Court. However, this point was not touched.
Before the Apex Court, this point was raised and the
Apex Court held that in view of the provision of Section
31 of the Code of Criminal Procedure, the sentences
awarded to the accused by the Magistrate will run
concurrently. The relevant observations made by the
Apex Court in paragraphs No.17, 20 and 21 of the
judgment read as follows:-
criwp1681-2019
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“17.In such a situation, it was necessary for
the Magistrate to have specified in the order
by taking recourse to Section 31 of the Code
as to whether the punishment of sentence of
imprisonment so awarded by her for each
offence would run concurrently or
consecutively.
20.As mentioned above, the appellant was
convicted and accordingly punished with a
sentence to undergo two years rigorous
imprisonment with a fine amount of Rs.1000/-
and in default of payment of fine amount to
further undergo one month simple imprisonment
under Section 304-A and 6 months rigorous
imprisonment with a fine amount of Rs.1000/-
and in default of payment of fine amount to
further undergo 15 days simple imprisonment
under Section 279 IPC.
21.In our view, having regard to the facts
and circumstances of the case and keeping in
view the nature of controversy involved in the
case, both the aforementioned sentences
awarded by the Magistrate to the appellant
would run “concurrently”.”
5.The learned A.P.P., on the other hand, placed
reliance on the observations made by the Apex Court in
the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed
Bhatti V. Assistant Collector of Customs (Prevention),
Ahmedabad and others AIR 1988 SC 2143. The facts in
that case were different and the provision of Section
427 of the Code of Criminal Procedure was required to be
considered. The accused had pleaded guilty in both the
cases. The Apex Court laid down that the sentences in
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such circumstances would run consecutively and not
concurrently. Thus, there were two separate cases and
hence, different provision was used.
6.In view of the provision of Section 31 of the
Code of Criminal Procedure and Section 71 of the IPC,
when an accused in a case is tried for different
offences, which are connected with each other and he is
convicted and sentenced separately for each offence, the
sentences would ordinarily run concurrently. In view of
the observations made by the Apex Court in the case of
Gagan Kumar (supra), this Court holds that the sentences
awarded to the accused would run concurrently. This
Court holds that if the Court awarding the sentences
wants to see that the sentences should run
consecutively, such mention needs to be there in the
operative order in view of the provision of Section 31
of the Code of Criminal Procedure. If there is no such
mention and offences have connection with each other
like in the present matter, then it needs to be presumed
that the sentences are to run concurrently.
7.The aforesaid point was not touched by this
Court in the appeal proceedings. This Court holds that
in such circumstances, writ jurisdiction can be used by
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the High Court. To meet the ends of justice and to
correct the mistake, the relief claimed in the present
Writ Petition needs to be granted.
8.In the result, Criminal Writ Petition is
allowed in terms of prayer clause (B). Rule is made
absolute in those terms. We quantify the fees of the
learned counsel (appointed) for the petitioner at
Rs.5000/- (Rupees Five Thousand) to be paid through the
High Court Legal Services Sub-Committee, Aurangabad.
[S.M. GAVHANE][T.V. NALAWADE]
JUDGE JUDGE
npj/criwp1681-2019
2 issues framed by the court
Whether a convict whose sentences for connected offences were awarded separately without specifying if they run concurrently or consecutively is entitled to have them treated as concurrent.
Whether the High Court can use its writ jurisdiction to correct the omission of specifying concurrent sentences when offences are connected.
Colour shows how this judgement treated each authority
Gagan Kumar V. State of PunjabFollowed¶31
Gagan Kumar V. State of Punjab 2019 DGLS(SC) 255
Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti V. Assistant Collector of CustomsDistinguished¶36
Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti V. Assistant Collector of Customs (Prevention), Ahmedabad and others AIR 1988 SC 2143
2 provisions across 2 enactments
Syed Noor
The State of Maharashtra
T.V. Nalawade
S.M. Gavhane
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court