Allowed

Anup Khati @ Kaliya v. State

Rajasthan HC5 May 2018CRLMP/1369/2018

Case brief

AI extract

What is this about?

In four criminal miscellaneous petitions filed under Section 482 CrPC, the High Court allowed the petitioner to run substantive sentences for theft consecutively awarded in five cases concurrently. The Court distinguished a prior Division Bench ruling that refused similar relief in a post-appeal quashing petition, holding concurrent running maintainable here. Default sentences for unpaid fines wer

What did the court decide?

Sentences awarded in the five cases are ordered to run concurrently, except default sentences for fine/compensation non-payment which shall run consecutively unless paid.

Anup Khati @ Kaliya Vs State — Civil Procedure and Limitation | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B.CRIMINAL MISC(PET.) NO.2379 / 2017 IN S.B.CR.REVISION PETITION NO.251/2017

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Anup Khati @ Kaliya son of Shri Ramesh Kumar, by caste Khati, resident of Hanuman Colony, Hansi Presently resident of Opp Palwas Bus Stand, Bhiwani [Haryana] [Lodged in Central Jail, Bikaner] ….PETITIONER

Versus

State of Rajasthan

….RESPONDENT

S.B.CRIMINAL MISC(PET.) NO.2380 / 2017 IN

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S.B.CR.REVISION PETITION NO.228/2017

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Anup Khati @ Kaliya son of Shri Ramesh Kumar, by caste Khati, resident of Hanuman Colony, Hansi Presently resident of Opp Palwas Bus Stand, Bhiwani [Haryana]

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[Lodged in Central Jail, Bikaner]

….PETITIONER

Versus

State of Rajasthan

….RESPONDENT

S.B.CRIMINAL MISC(PET.) NO.2381 / 2017 IN S.B.CR.REVISION PETITION NO.227/2017

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Anup Khati @ Kaliya son of Shri Ramesh Kumar, by caste Khati, resident of Hanuman Colony, Hansi Presently resident of Opp Palwas Bus Stand, Bhiwani [Haryana]

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[Haryana]

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[Lodged in Central Jail, Bikaner]

….PETITIONER

Versus

State of Rajasthan

….RESPONDENT

S.B.CRIMINAL MISC(PET.) NO.1369/ 2018 IN S.B.CR.REVISION PETITION NO.232/2017

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Anup Khati @ Kaliya son of Shri Ramesh Kumar, by caste Khati, resident of Hanuman Colony, Hansi Presently resident of Opp Palwas Bus Stand, Bhiwani [Haryana]

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[Lodged in Central Jail, Bikaner]

….PETITIONER

Versus

State of Rajasthan

….RESPONDENT

For Petitioner : Ms. Laxmi Ramawat For Respondents : M.S.Panwar – P.P.

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: Ms. Laxmi Ramawat

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HON’BLE MR JUSTICE VIJAY BISHNOI ORDER

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05/05/2018

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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.

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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

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hereunder:

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S.	Case No.	Court	Date of	Sentence default	Appeal
No			decision
1.	924/12	ACJM No.	01.08.2013	457,380 of IPC 5	Session Judge,
		3, Bikaner		years SI Penalty	Bikaner Appeal
				2000 in default	No. 148/13

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

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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.

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As the sentences awarded to the petitioner are in 5 different cases, he is being made to suffer sentences one

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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.

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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.

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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.

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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.

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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.

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petitions.

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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.

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Heard learned counsel for the parties.

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This Court in Rajender vs. State of Rajasthan

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(supra) has held as under:

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"Section 427 CrPC is relevant in the context, which reads as under:

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“427. Sentence on offender already sentenced for another offence.--

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(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

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shall run concurrently with such previous sentence:

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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.

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(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.”

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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:

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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.

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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

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sentence shall run concurrently with such previous sentence.

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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."

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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.

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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.

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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

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dated 26.04.2018 sent to G.A. Office, the petitioner has already served more than seven years' sentence.

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Having considered the facts and circumstances of

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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 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.

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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 subjectmatter 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

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different sentences concurrently is not maintainable as this Court has become functus officio .

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In such circumstances, the present misc.

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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).

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

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[VIJAY BISHNOI],J.

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m.asif/PS

Anup Khati @ Kaliya v. State

Case brief

What is this about?

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Anup Khati @ Kaliya v. State

Case brief

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