® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE Mr. JUSTICE G. NARENDAR CRIMINAL PETITION No. 3548/2019 BETWEEN :
1. Azgarkhan @ Yanna S/o. Rafeek Khan Aged about 28 years R/o. Ullalapanagara Yashwanthpura Hobli Bangalore South Bangalore – 560 091.
2. Sri. Fayaz @ Fayyu S/o. late SHafijan Aged about 22 years R/o. Anchepalya Mysore Road Kengeri Hobli Bangalore South Bangalore – 560 060. … Petitioners (By Sri. Sirajuddin Ahmed, Adv.) AND :
State of Karnataka By SHO Sira Police Station State of Karnataka 572 137. … Respondent (By Sri. R.D. Renukaradhya, HCGP) ---
This Criminal Petition is filed under Section 482 Cr.P.C. with a prayer to pass an order that sentences in all the three cases shall run concurrently and etc.
This Criminal Petition coming on for Admission this day, the Court passed the following;
O R D E R Heard the learned counsel for petitioners and learned High Court Government Pleader.
2. Both the petitioners are convicts having been convicted by the Court of Senior Civil Judge and JMFC, Sira by judgment and order dated 24.02.2015 in C.C. Nos. 275/2014, 276/2014 and 277/2014.
3. The complainant is Sira Police and petitioners have been charged of the offence punishable under Sections 457 and 380 read with Section 34 IPC in all the three cases and in all the three cases the trial Court has been pleased to find them guilty and has sentenced them to undergo simple imprisonment for a period of three years for the offence punishable under Section 457 of IPC and has also sentenced them to undergo simple imprisonment for a period of two years for the offence punishable under Section 380 of IPC. In all the three cases the charges levelled against the petitioners are common, i.e., for offences punishable under Section 457 and 380 IPC.
4. The complaint against the petitioners is that on the night of 04.08.2013 at about 01.00 am they have broken open the lock of the shops, namely, R.S. Communications and stolen mobile worth Rs.12,500/- continuing further they have broken open the lock of M/s. Sri. Siddi Vinayaka Jewelry shop and stolen gold and silver articles worth Rs.23,500/- and thereafter similarly broke open the lock of New Balaji Teli Mobile Shop, all situated in the same locality and road. In the third offence it is found that they have stolen property worth Rs.24,500/-.
5. In all the three cases the trial Court has found them guilty of the offence punishable under Sections 457 and 380 IPC and has awarded similar prison terms. The maximum term of imprisonment awarded is three years as the Court has ordered that the sentences shall run concurrently. In that view of the matter the petitioners were required to undergo imprisonment for a period of three years but while so awarding the punishment though the trial Court has sentenced the petitioners on the same day, i.e., on 24.02.2015, the Court has failed to record a finding as to whether the sentences awarded in three cases are to run concurrently or consecutively.
6. Learned High Court Government Pleader has filed statement of objections and also placed reliance on the ruling of the Apex Court in the case of V.K. Bansal Vs.
State of Haryana and others, in Crl.A. Nos. 836-851/2013 disposed of on 05.07.2013.
7. It is contended by learned counsel for petitioners that the trial Court has failed to take note of the provisions of Section 427 Cr.P.C. and ought to have ordered that the sentence subsequently pronounced in C.C. Nos. 276/2014 and 277/2014 ought to run concurrently with the sentence awarded in C.C. No. 275/2014, as admittedly incidents are alleged to have been committed on the same day. He would submit that though the maximum prison term awarded is 3 years for the offence punishable under Section 457 IPC the petitioners have remained incarcerated despite the passage of nearly six years. He would contend that the value of the properties, said to have been stolen and recovered from the petitioners, is of meager value and the trial Court ought to have also taken note of the age of accused for the purpose of consideration of the provisions of Section 427 Cr.P.C.
8. Per contra it is contended by the learned High Court Government Pleader that though three separate trials have been conducted it is fairly admitted that the acts complained of have been committed on the same day and all the three trials are for the commission of the offence punishable under Sections 457 and 380 of IPC.
9. Learned High Court Government Pleader would place reliance on the ruling of the Apex Court rendered in the case of O.M. Cherian alias Thankachan Vs. State of Kerala and others reported in (2015) 2 SCC 501 wherein the Apex Court in paragraph Nos. 19 to 21 has observed as follows:
19. As pointed out earlier, Section 31 CrPC deals with quantum of punishment which may be legally passed when there is (a) one trial; and (b) the accused is convicted of two or more offences. The ambit of Section 31 is wide, covering not only a single transaction constituting two or more offences but also offences arising out of two or more transactions. (emphasis by this Court) In the two judgments in Mohd. Akhtar Hussain and Manoj, the issue that fell for consideration was the imposition of sentence for two or more offences arising out of the single transaction. It is in that context, in those cases, this Court held that the sentences shall run concurrently.
20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. (emphasis by this Court). Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain in Section 31 CrPC.
10. From a reading of the above it is apparent that the discretion is vested with the Courts and the requirement is that the discretion ought to be exercised judiciously while exercising such discretion the Courts are required to look into the facts and circumstances of the case, magnitude of the act complained of, the impact on the society and any other attendant aggravating or mitigating circumstances.
11. The learned High Court Government Pleader would also place reliance on the ruling of the Apex Court rendered in the case of V.K. Bansal Vs. State of Haryana and others as noted supra. There the Court was considering the application of Section 427 of Cr.P.C. in respect of three different prosecutions of different parties and different Courts unlike in the instant case on hand. In the instant case the prosecution is by the same Police and the act complained of committed one after the other on the same day and in the same locality though in different shops and the Apex Court taking note of the facts involved in that case has ordered that the sentences in three different cases be ordered to run concurrently and held that as the transactions were wholly different involving different parties and the accused being common factor would not lead to an advantage of the accused to pray that sentences imposed by three different trials be ordered to be run concurrently.
12. Per contra learned counsel for petitioner would place reliance on the orders of coordinate Bench of this Court in Crl.P. No. 4573/2013 and 9803/2016 both disposed of on 21.08.2018. A coordinate Bench of this Court in similar circumstances where the accused were tried and convicted for the offence punishable under Section 395 IPC in two different cases, i.e., in S.C. No. 45/2012 and 48/2012 this Court after considering the provisions of Section 427 Cr.P.C. and after placing reliance of the ruling of the Apex Court reported in the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and others, reported in AIR 1998 SC 2143 and also after relying on the ruling reported in (1982) Cri. Application R (S) P1 in the case of R.V. Edward Charles French has been pleased to render a ruling in the following manner at paragraph Nos. 4 to 10:
4. Section 427 of the Code of Criminal Procedure provides for order in which the sentences will take effect when an accused is sentenced to imprisonment in more than one case. The Section reads as under:
“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 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.”
The sub-section(1) says that the sentence in the second conviction shall commence at the expiration of the imprisonment to which the accused has been previously sentenced. The sub-section(2) says that when a person is already undergoing a sentence of imprisonment for life and is subsequently sentenced to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with the previous sentence.
5. In the case in hand, the petitioner was convicted and sentenced to seven years R.I. (though in the operative portion the word “years” is missing) in two different trials in S.C.Nos.45/2012 and 48/2012 on the same day. The trial court has not directed whether the sentence passed in any one of the cases is to run concurrently or consecutively. The general rule is that sentence commences to run from the time it is pronounced. The section creates an exception in the sense that when an accused is already “undergoing imprisonment”, by virtue of this section, the subsequent sentence would commence only after the expiration of the previous sentence unless ordered otherwise by the Court. Therefore, in the absence of any specific direction by the court, the accused sentenced to imprisonment for term in two trials, ordinarily the subsequent sentence shall commence at the expiration of the term of the previous conviction except in cases covered under sub section(2).
6. In the instant case, sentences of imprisonment having been passed on the petitioner in two trials on the same day, the accused cannot be said to be “undergoing imprisonment” in either of the case. From the reading of the order of sentence passed by the trial court in both the above cases, it is difficult to ascertain as to which is the first sentence passed by the court. In both the cases, the trial Judge has recorded that, “After hearing both the sides Court feels that undisputedly accused was tried for similar offence in several Courts and on enquiry by Court accused stated that no other proceedings are pending against him. Hence, Court feels that by taking lenient view R.I. for a period of 7 years and a fine of Rs.10,000/- has to be awarded and in default of payment of fine Two months S.I. has to be suffered and Court feels that by giving set off, S.I. in default of non payment of fine, shall run concurrently.”
7. It can be gathered from the above, that the trial Court has proceeded on the basis that no other proceedings were pending against the petitioner. In similar situation, the Hon’ble Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs (Prevention), Ahmedabad & Others AIR 1988 SC 2143, while observing that sentences will take effect in the order in which they are passed, has held that:
“If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.”
8. In the instant case, petitioner is convicted under Section 395 of Indian Penal Code in two different cases. The offences in S.C.No.45/2012 is said to have taken place on 20.04.2011 and the offence in S.C.No.48/2012 is said to have been committed on 14.04.2011. Thus the petitioner having been sentenced in two trials for the offence of the same nature under the same enactment, in view of the principles laid down in the above decision, it would be just and proper to direct that the sentences imposed on the petitioner-accused to run concurrently.
9. As observed by the Hon’ble Supreme Court in the above decision, sentencing is a tortuous process and the sentencing Judge may have to do the balancing act by weighing various factors to determine proper sentence. One of the tests devised by the Hon’ble Supreme Court in the above decision is the “totality of the sentences” which the accused may have to undergo if the sentences are served consecutively endorsing the view taken in case of R.V. Edward Charles French reported in (1982) Cri Application R (S) P 1, wherein it is held that, “whether the sentences are made consecutive or concurrent, the sentencing judge should try to ensure that the totality of the sentences is correct” in the light of all the circumstances of the case. Applying the above decision to the facts of the present case, having regard to the nature of the offences proved against the petitioner, in my view, it would be gross injustice to incarcerate the petitioner for 14 years equal to the offence of murder. Records indicate that the petitioner was a young man of 21 years at the time of commission of the offence. The trial Court itself has observed that no other cases are pending against the petitioner. Under the said circumstance, it would be just and proper to direct the sentences to run concurrently.
10. Accordingly, the petition is allowed. It is hereby directed that the substantive sentence of imprisonment awarded by the trial court in S.C.No.45/2012 and S.C.No.48/2012 shall run concurrently.
13. The facts involved in the said case and the instant case are similar. In the instant case the trial Court having passed the judgments on the same day, in the opinion of this Court, ought to have considered the applicability of Section 427 Cr.P.C. and the law laid down by this Court as hereinabove noted. The accused were aged about 22 and 28 years on the date of conviction and they have served the sentence for nearly more than six years as it is submitted that the petitioners remained in the custody from the year 2013 i.e., two years prior to the date of conviction and sentence for almost seven years now. Keeping in view the age and value of the articles stolen, this Court is of the considered opinion, that the benefit of concurrent running of sentence is required to be extended to the petitioners.
14. Accordingly, petition is allowed. The substantive sentence of simple imprisonment ordered in C.C. No. 276/2014 and 277/2014 by the Court of Senior Civil Judge and JMFC at Sira by order dated 24.02.2015 are to run concurrently with the sentence of simple imprisonment ordered in C.C. No. 275/2014 by the Court of Senior Civil Judge and JMFC, Sira, dated 24.02.2015.
Sd/- JUDGE LRS.