1. Heard Sri Jitendra Bahadur Singh, learned counsel for applicant as well as Sri Anurag Verma, learned Additional Government Advocate.
2. The applicant in the present case is a convict who is serving his sentence after being convicted in two similar cases for an identical term passed on the same day by the same court, has prayed for setting aside of the order dated 28/09/2020 passed by Additional Chief Judicial Magistrate VI, Lucknow whereby the application preferred by the applicant for a direction that the sentences in the two cases should run concurrently rather than successively has been rejected.
3. Briefly the facts of the case are that the applicant was implicated in two cases namely Case No. 278/2015 under section 392/411 IPC PS Jankipuram , Lucknow and Case No. 276/2015 under section 392/411 IPC PS Jankipuram, Lucknow. In both the cases the applicant confessed to the crime before the court and consequently in both the cases a separate orders of conviction was passed on 03.02.2018sentencing him under section 392 IPC for two years and one month 15 days simple imprisonment and Rs. 500/-fine and a further simple imprisonment of seven days in case of failure to deposit the fine, and for one year simple imprisonment for offence under section 411 IPC respectively.
4. Case no.276/2015 was listed before Additional Chief Judicial Magistrate, Court No. 29, Lucknow on 03/02/2018 where the applicant appeared from jail. He did not have any legal assistance and stated before the court that he is a very poor person and that he wants to confess to the crime, and that he should be punished for the period he is already spent in custody. In light of the confession he was accordingly convicted and sentenced under section 392 IPC for two years and one month 15 days simple imprisonment and Rs. 500/-fine and a further simple imprisonment of seven days in case of failure to deposit the fine, and for one year simple imprisonment for offence under section 411 IPC.
5. Similarly in case number 278/2015 an identical order was passed on the same day i.e 03/02/2018 convicting and sentencing him under section 392 IPC for 2 years and 1 month 15 days simple imprisonment and Rs. 500/-fine and a further simple imprisonment of 7 days in case of failure to deposit the fine, and for one year simple imprisonment for offence under section 411 IPC.
6. The applicant after serving 2 years and 7 months in jail moved an application on 22/09/2020 stating that he was convicted in case number 276/15 and 278/15 for 2 years 1 month 15 days in both the said cases separately and in the order it was specifically stated that sentence shall run concurrently and that the applicant has already completed the term of his sentence and therefore prayed for his release.
7. The said application was rejected by the order dated 28/09/2020 by the Additional Chief Judicial Magistrate which has been impugned in the instant application on the ground that firstly in both the conviction orders it has not been stated by the Magistrate as to whether the sentence in both the cases run concurrently or successively and therefore in accordance with section 31 Cr.P.C. the sentence would run successively, and secondly both the cases are never clubbed together and sentences passed separately and therefore they would run successively.
8. By an order of this court the report was called from the Superintendent District Jail, Lucknow with regard to the pre trial period spent by the accused in jail and also the date of completion of sentence. A report has been submitted by the Senior Superintendent District in Lucknow dated 15/12/2020 in which it has been stated that the applicant was in jail from 21/12/2015 to 17/05/2016 in case No. 276/2015 (4 months 27 days) while in case No. 278/2015 was in jail from 21.12.15 to 10/03/2016 (2 months 20 days) and therefore deducting the same from the period of sentence awarded to him, he is to serve one year and 8 months and 18 days in case number 276/15 and one year 10 months and 25 days in case No. 278/2015 and a total sentence of three years seven months and 13 days cumulatively and is expected date of completion of sentence be 21/04/2021.
9. The learned AGA on the other hand submitted that according to Section 31(1) of the Cr.P.C. where a person is convicted at one trial for two or more offences then it is a discretion of the Court to provide that the punishments in each of the offences will run either consecutively or concurrently.
10. He further submitted that in the instant case, the applicant was convicted in two separate cases and therefore provisions of Section 31 are not attracted as he was convicted in two separate trials.
11. I have heard learned counsel for parties and perused the record.
12. The first question which arises for consideration is as to whether when in the peculiar facts and circumstances of the present case, the trial court having convicted the applicant in two cases on the same day, should have recorded whether the punishment in both the cases should run concurrently or successively.
13. A perusal of Section 31 sub-clause(1) of the Cr.P.C., it is mandatory upon the trial court to record as to whether the sentence would run concurrently or successively and also give adequate reasons for the same. The trial court has clearly not followed the mandate of Section 31 Cr.P.C.
14. To consider as to whether the term of sentence awarded to him should run concurrently or successively, reliance was placed on Section 427 Cr.P.C.
Section 427 Sub-Clause (2) of Cr.P.C. which reads as under:-
"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 con- currently with such previous sentence."
Therefore, when the trial court had convicted the accused in the first case before him and the fact that he was already produced in police custody his term of imprisonment would have deemed to be commenced immediately on his conviction. When learned trial court convicted him in the second case then the applicant was deemed to have been undergoing sentence of imprisonment and therefore in the present case Section 427 Sub-Clause (2) Cr.P.C. is also liable to be attracted and the benefit of concurrent running of the sentence is liable to be given to the applicant.
15. In the case of Shyampal Vs. Dayawati Desoya and another Vs. 2016 (10) SCC 761, where the appellant therein was tried in two separate cases involving dishonour of cheques in two separate transactions at two different points of time, the Ho'nble Apex court held that looking into the overwhelming identicalness in the features of both the case deemed to be a singular transaction and gave benefit of Section 427 of the Cr.P.C. and directed the sentence in both the case to run concurrently. For ready reference, paragraph Nos. 10, 13, 14, 15, 16 & 17 quoted hereinbelow:-
"(10) We have extended our required consideration to few facts and the submissions made.
The materials on record leave no manner of doubt that the complaints filed by the respondents stem from two identical transactions between the same parties whereunder the respondent had advanced loan of Rs.5 lacs each to the appellant on two different dates against which the latter had issued cheques to discharge his debt and that the cheques had been dishonored. The facts pleaded and proved do unassailably demonstrate that the loans advanced had been in the course of a series of transactions between the same parties on same terms and conditions. Significantly in both the cases, following the conviction of the appellant under Section 138 of the Act, the same sentences as well have been awarded. There is thus an overwhelming identicalness in the features of both the cases permitting, the two transactions, though undertaken at different points of time, to be deemed as a singular transaction or two segments of one transaction. This deduction understandably is in the singular facts of the case.
(13) Though this provision has fallen for scrutiny of this Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal Vs. State of Haryana and Another(2013) 7 SCC 211 where it was held that though it is manifest from Secction 427 (1), that the Court has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same.
(14) The imperative essentiality of a single transaction as the decisive factor to enable the Court to direct the subsequent sentence to run concurrently with the previous one was thus underscored. It was expounded as well that the direction for concurrent running of sentence would be limited to the substantive sentence alone.
(15) In a more recent decision of this Court in Benson Vs. State of Kerala - Criminal Appeal No.958 of 2016 (since disposed of on 03.10.2016) and the accompanying appeals, arising from the conviction of the appellant from his prosecution on the offences proved, this Court in the singular facts as involved and having regard to the duration of his incarceration and the remission earned by him, extended the benefit of such discretion and directed that the sentences awarded to him in those cases would run concurrently. It was noticeably recorded that the offences in the cases under scrutiny had been committed on the same day. The benefit of the discretion was accorded to the appellant therein referring as well to the observation in V.K. Bansal (supra) that it is difficult to lay down any straight jacket approach in the matter and that a direction that the subsequent sentence would run concurrently or not, would essentially depend on the nature of the offence or offences and the overall fact situation. Understandably, the appellant was required to serve the default sentence as awarded with the direction that if the fine imposed had not been deposited, the default sentence or sentences would run consecutively.
(16) Reverting to the facts as obtained in the present appeal, we are of the comprehension, on an appreciation thereof as well as the duration of the appellant's custody, as is evidenced by the certificate to that effect, that the appellant is entitled to the benefit of the discretion contained in Section 427 of the Code. In arriving at this conclusion we have, as required, reflected on the nature of the transactions between the parties thereto, the offences involved, the sentences awarded and the period of detention of the appellant as on date.
(17) It is thus ordered that the substantive sentences of 10 months simple imprisonment awarded to the appellant in the two complaint cases referred to hereinabove would run concurrently. Needless to say, the appellant would have to serve the default sentences, if the fine by way of compensation, as imposed, has not been paid by him. The appeals are thus allowed to this extent. The appellant would be entitled to all consequential reliefs with regard to his release from custody as available in law based on this determination."
16. In the present case, two similar cases in identical provisions of I.P.C. were sections being lodged against the applicant, namely sections being Section 392/411 I.P.C. He confessed his guilt in both the cases on 03.02.2018 and the sentence imposed on him was also identical and therefore relying on the aforesaid judgment of Hon'ble the Apex court it can be clearly concluded that overwhelming identicalness in the features of both the cases where they can be deemed to be a singular transaction or two segments or one attracting provisions of 427 sub-clause (2) of the Cr.P.C.
17. Another fact which needs to be noted in the present case is that the order of conviction in both the cases is identically worded wherein when the applicant was produced in custody on the fateful date i.e. 03.02.2018 he submitted before the trial court that he is a poor person and he does not have any parokar and he confessed to his guilt. It seems that he was not represented by advocate nor is any such fact mentioned in the order of the conviction.
18. Confronted with such a situation, it was mandatory for the trial court to have requested any advocate to assist the applicant, failing which, he should have appointed an Amicus Curiae to assist the applicant. The learned trial court, it seems, did not do any other the above and proceeded to record the conviction of the applicant. The Hon'ble Apex Court recently in the case of Subedar Vs. State of Uttra Pradesh by it judgment dated 18.12.2020 passed in Criminal Appeal No. 886 of 2020 (Arising out of SLP (Criminal) No. 6684 of 2020 arising out of Diary No. 20424 of 2020), has held as under:-
"One of the submissions urged on behalf of the appellant is that the appeal was disposed of in absence of any representation on behalf of the appellant.
It is well acepted that right of being represented through a counsel is part of due process clause and is referable to the right guaranteed under Article 21 of the Constitution of India.
In case the Advocate representing the cause of the accused, for one reason or the other was not available, it was open to the court ot appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented.
In the circumstances, we have no other alternative bu to set-aside the judgment passed by the High Court and to restore Criminal Appeal No. 2798 of 1988 to the file of the High Court to be disposed of afresh."
19. In the present case the trial court should have at the first instance noticed the fact that the applicant was not represented by an advocate, and should have ensured that he was duly represented by an advocate or should have appointed an amicus curiae to assist the applicant. The accused should have been informed of the consequence of confession being made by him by an advocate before the same was recorded by the Magistrate.
20. Considering the above, I am of the opinion that the sentence in both the cases i.e. Case No. 278/2015 under section 392/411 IPC PS Jankipuram , Lucknow and Case No. 276/2015 under section 392/411 IPC PS Jankipuram, Lucknow should run concurrently. The petition under Section 482 Cr.P.C. is accordingly allowed.
21. Registry is directed to sent a copy of this order to all concerned including the trial court and concerned Jail Superintendent immediately for compliance.
22. In case the applicant has served his sentence then he shall be released forthwith in case he is not wanted in any other case.
(Alok Mathur, J.) Order Date :- 13.01.2021.
Ravi/