A.N JINDAL, J(ORAL):

This judgment of mine shall dispose of eight connected Criminal Appeals Nos. 305-SB of 2005, 1356-SB of 2004, 1486-SB of 2004, 1901-SB of 2005, 1099-SB of 2005, 2280-SB of 2004, 1669-SB of 2004, 471-SB of 2005 and three Criminal Misc. Nos. 28067-M of 2007, 75764-M of 2006 and 75766-M of 2006, having arisen out of the three different judgments passed by Additional Sessions Judge, Gurgaon, which are as under:-

Sr. No.

Paticulars

Names of accused

Date of judgment

sentence

1

FIR No. 230 dated 10.06.2003, under Sections 395, 397, 120-B & 412 I.P.C, Police Station DLF, Gurgaon

Tinkesh son of Radhey Shyam Goel, Sameer Ahmad son of Rashid Ahmad, Sunil son of Uma Shankar Pandey, Sonu @ Mohammad Sabir son of Rahumuddin

08/05/04

Accused Tinkesh, Sameer Ahmad and Sunil were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1000/- each for the offence under Sections 395 read with Section 397 IPC and accused Sonu @ Mohammad Sabir was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1000/-under Sections 120-B, 395/397 IPC

2

FIR No. 277 dated 07.07.2003 under Sections 459, 380, 411, 120-B IPC Police Station DLF Gurgaon

Tinkesh son of Radhey Shyam Goel, Sonu @ Mohd. Sabbir son of Rahimuddin, Sunil son of Uma Shankar Pandey, Sameer Ahmad son of Rashid Ahmad,

26.02.2005

Accused Tinkesh is sentenced to undergo R.I for a period of seven years and to pay a fine of Rs. 500/- for the offence under Section 392 read with Section 397 IPC and accused Sonu, Sameer Ahmad and Sunil were sentenced to undergo R.I for a period of seven years and to pay a fine of Rs. 500/- each for the offence under Section 392 IPC

3

FIR No. 217 dated 03.08.2003 under Sections 395, 397, 120-B I.P.C and 25 of the Arms Act, registered at police station Udyog Vihar Gurgaon

Sunil son of Kuldeep, Gobind son of Kishan Lal, Sunil son of Uma Shankar, Sameer Ahmad son of Rashid Ahmad and Mohammad Sabir son of Rahisudden

21.04.2004

Accused Sunil was sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1000/- for the offence under Sections 120-B read with Sections 395/397 IPC and accused Sunil, Gobind, Sameer Ahmad and Mohammad Sabir were sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 1000/- for the offence under Section 397 IPC.

The allegations against the appellants are regarding the house breaking with an intention to cause injury, commit dacoity and recovery of stolen articles.

The arguments in all the three appeals have been heard with the help and assistance of the counsel for the parties. Counsel for the parties do not assail the judgments of conviction awarded against the accused in all the FIRs.

In any case, having scrutinized the records, there is nothing to disbelieve the evidence led by the prosecution to prove the offences against the accused. The witnesses are quite consistent with regard to the date, time and place of occurrences. The recoveries of the articles taken by way of theft, robbery or dacoity stand duly proved against them. The medical evidence also fits in with the ocular version, as such the findings with regard to guilt of the accused persons, recorded by the Courts below, in all the eight appeals, stand confirmed.

The only argument advanced by the learned counsel for the appellants is that though they do not assail the conviction yet the sentence awarded against them by way of impugned judgments be made concurrent by extending them benefit under Section 427 of the Criminal Procedure Code (herein referred as ‘the Code’).

Arguments heard. So far as in the three applications, moved on behalf of the accused/appellants Sameer Ahmad son of Rashid Ahmad, Sunil son of Uma Shankar, Sonu @ Mohammad Sabir son of Rahimuddin, for making the sentence as concurrent, it may be observed that since the appeals against the three criminal misc. petitions are still pending adjudication, therefore, no necessity would arise to decide the applications independently. Similar view was taken by the Full Bench judgment of this Court delivered in case Jang Singh v. State of Punjab 2008 (1) R.C.R (Criminal) 323 wherein it was observed as under:-

“If the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Sections 482/427 Cr.P.C The view taken by one set of the High Courts that such an application can be entertained while exercising inherent powers under Section 482 Cr.P.C would no more appear to be a good law in view of the decision of the Hon'ble Supreme Court in M.R Kudva case (supra). We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertaining appeal or revision but would not be so available to be exercised in isolation when application in this regard is moved either under Sections 482 or 427 Cr.P.C

Thus, the controversy with regard to filing of separate petitions after the disposal of trial, appeal, or revision is no more res-integra and no such petitions are maintainable. As, I am already seized of all the appeals preferred by the accused-appellants against the impugned judgments, which are still pending, therefore, the petitions are not maintainable.

Now coming to the next question: “whether the sentences awarded in the aforesaid three FIRs could be made concurrent”?. It may be observed that in FIR No. 217 dated 03.08.2003, the sentence was awarded vide judgment dated 21/23.04.2004. Thereafter, in case FIR No. 230 dated 10.06.2003, sentence was awarded on 08/11.05.2004. Similarly, in case FIR No. 277 dated 07.07.2003, sentence was awarded vide judgment dated 26.02.2005 In view of the Division Bench judgment, passed in case Pritam Singh… v. State Of Punjab… 2007 (4) R.C.R (Criminal) 712, and the full Bench judgment of this Court delivered in Jang Singh's case (supra), and the observations made by the Full Bench judgment of Bombay High Court delivered in case Satnam Singh Puransing Gill v. State of Maharashtra 2009 (1) R.C.R (Criminal) 703, there is no bar to make the sentence concurrent when a person is already undergoing sentence of imprisonment and is convicted and sentenced subsequently. It was further observed that the High Court has the power to order the sentences to run concurrently in an appropriate case when the facts and circumstances so permit. The Full Bench judgment of this Court in Jang Singh's Case (supra) while extending the benefit to the convicts by making the sentences to run concurrently, made the following observations:-

“The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C, is that, a person who is undergoing a sentenceof imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Such direction to make the sentences to run concurrently, as per various decisions noted above, can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well.”

The Full Bench, without laying down the definite guidelines, pointed out some principles and instructions, which may govern the exercise of this discretion, observed as under:-

“What principle and consideration will govern the exercise of this discretion, as already noted above cannot be exhaustively enumerated. Certain relevant factors, as can be culled out from different judgments referred to above, may give an indication where such discretion may be exercised. These factors generally would be the nature or character of the offences committed, the prior criminal record of the offender, character his age and sex etc. ghastly nature of the crime. The offender being habitual would also be the factor, which can be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any Court dependent upon the facts and circumstances of each case on any relevant or valid consideration as may be considered so by the Court while holding the trial or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Cr.P.C as observed by Hon'ble Supreme Court is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion.”

The Full Bench of the Bombay High Court in Satnam Singh Puransing Gill's case (supra) also observed that merely because the conviction is in two different cases and the punishment awarded in previous case was for heinous crime per-se would not exclude the jurisdiction of the Court under Section 427 (1) of the Code. The power is vested in the Court to direct the sentence to run concurrently but such power not to be exercised on impulses, whims or unregulated benevolence. The Court has to exercise the judicial discretion.

The crux of the aforesaid judgments is that the discretion to be exercised while exercising the powers under Section 427 (1) Cr.P.C should not be arbitrary. It should be judicious and reasoned one. As per settled principles of criminal jurisprudence, sentencing policy and with reference to the facts and circumstances of a given case where the previous and the subsequent sentences of imprisonment awarded to the accused are in two or more cases for distinct and separate offences arisen out of different transactions, incidents and even under different enactments the sentences could be made concurrent. In the present case, the accused, having awarded sentence of 10 years, are in custody since 2003. If the accused being 20s or 30s are not extended benefit of Section 427 (1) of the Code then their sentences would not end and they may see their death within the four walls of the jail. This benevolent provision appears to have been incorporated in the Code for the accused who had been slapped with heavy sentences or could be slapped as such which to the human conscious are too hard to face. In those circumstances, the Court is expected to consider for directing the imposition of subsequent sentences to run concurrently with the previous sentence and secondly, a general and administrative concept fails being over crowded where under trial convicts are lodged so as to even require the State to act in the interest of administration of criminal justice and not to frustrate the purpose of sentencing by ill-treating the convicts. These are also the relevant considerations which lead this Court to exercise discretion in favour of the accused.

In the present case, it is also noticed that irrespective of the conduct of the accused, the recoveries affected from some of them are petty in nature and in some of such cases the chances of false implication also cannot be ruled out.

Thus, for the aforesaid reasons, the appeals (Criminal Appeal No. 1356-SB of 2004 and 1486-SB of 2004) qua Gobind son of Kishan Lal and Sunil son of Kuldeep Singh, are dismissed. Similarly, the other appeals are also dismissed. However, while exercising powers under Section 427(1) of Cr.P.C, it is ordered that the sentences awarded to Sunil son of Uma Shankar, Sameer Ahmad son of Rashid Ahmad and Sonu @ Mohammad Sabir son of Rahumuddin awarded by the trial Court in all the three aforesaid FIRs would run concurrently. Similarly, the sentences awarded to Tinkesh, in FIR Nos. 230 of 10.06.2003 and 277 of 07.07.2003 would also run concurrently. The sentence of fine shall remain intact.

In view of the fact that I have already ordered the sentences to run concurrently in the proceedings paras so there is no necessity to pass the separate orders in Criminal Misc. Nos. 75764-M, 75766-M of 2006 and 28067-M of 2007, as such, the same are dismissed as infructuous.

Copy of this order be sent to Chief Judicial Magistrate, Gurgaon, for compliance.

(A.N Jindal)

Judge

07.01.2010

mamta-II