bombay high court

Bombay High Court: For what the Court described a glaring case warranting interference filed by the petitioner aged 30 years through the Legal Services Authority seeking directions to concurrently run the sentences of imprisonment awarded by different Courts in 41 cases and set aside the fine amounting to Rs 1,26,400 in those cases, the Division Bench of Revati Mohite Dere* and Gauri Godse, JJ. ordered the release of petitioner in all 41 cases against the existing sentence which required the petitioner to undergo imprisonment of more than 90 years.

Brief Facts

The Court took up the instant case as “a protector of the fundamental right to life and personal liberty, lest there would be serious miscarriage of justice” justifying through the facts of the instant case warranting exercise of writ jurisdiction and inherent jurisdiction to do justice and serve the purpose of Courts' existence.

The instant petition was filed seeking directions to concurrently run the sentences of imprisonment awarded by different Courts in 41 cases and set aside the fine amounting to Rs 1,26,400 passed by the Courts in those 41 cases. The petitioner was in custody since 3-12-2014, arrested and prosecuted for the offence of theft in 41 cases by different police stations. It was contended that the petitioner was falsely implicated in those cases and unaware of the legality due to his illiteracy. He was also financially unable to engage a lawyer, and thus, pleaded guilty in all 41 cases under a bona fide belief that he would be released from prison for the period already undergone by him as an undertrial prisoner.

Court's Analysis of 41 theft cases

The Court perused details of all 41 cases and noted that the petitioner was apparently arrested in one case and came to be arrested in other cases on transfer warrant. He pleaded guilty in all 41 cases and got sentenced to imprisonment and payment of fine, and there was no direction to either run the sentences consecutively or concurrently.

The Court explained Section 427(1) of Criminal Procedure Code, 1973 (‘CrPC') which lays that “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. It confers a discretion on the Court to direct that the subsequent sentence following a conviction shall run concurrently with the previous one.”

Discussion over Concurrent and Consecutive Sentences

The Court referred to Mohd. Zahid v. State, (2022) 12 SCC 426 regarding power and discretion of the Court under Section 427(1) of CrPC for issuing direction that all subsequent sentences to run concurrently with the previous sentence, to be exercised judicially considering the nature of offence and facts of the case.

The Court observed that none of the cases indicated specific direction or order by the Courts to run subsequent sentences concurrently with the previous one. The Court expressed that “the Courts before whom there was more than one case pending before them, had failed to exercise their discretion.” Highlighting the fact that the petitioner was not defended by any advocate or offered any legal aid by the Trial Court, who was only 21 years old having his family dependent upon him, who believed that he would be released on undergone sentence, none of the petitioners considered any of those factors.

The Court further called attention to the fact that 3 out of 41 cases were of 2008, 2010 and 2011, when the petitioner might have been a juvenile in conflict with law. The Court explained that “The sentencing policy of criminal jurisprudence mandates Courts to pass such sentences as would meet its primary twin objects of deterrence and re-formation. The deterrent effect of a sentence is to prevent the commission of a similar offence by the convict by confining him to jail and to prevent the prospective offenders from committing such a crime. Infact, compensation sometimes can be said to have such a deterrent effect. The sentence of imprisonment should also have a reformative aim, because it should not demoralize the offender and in fact, the offender should be given an opportunity depending on the nature of offence to improve himself.”

The Court said that the sentence imposed by the Courts must strike a balance between deterrent and reformative objects of sentencing policy and ensure that the object is met sufficiently with. If the petitioner in the instant case was to undergo imprisonment in all the cases, he would be undergoing imprisonment of approximately 83 years, 3 months and 5 days, as calculated by the Court. The same would be extended to another 10 years since the petitioner was not in a position to pay the fine, ultimately making it 93 years 5 months, with no hope of ever coming out of jail, and a punishment much more than what a murder convict would undergo.

Court's Decision

The Court said that “we deem it appropriate to put right the clock, to prevent miscarriage of justice.” He had already undergone imprisonment of 9 years and more than 11 years without remission. The Court viewed that “it was the bounden duty of the learned Magistrates to have at least perused the papers before awarding the sentences, more particularly, when the petitioner had pleaded guilty, so as to ensure that the sentences awarded were commensurate with the evidence on record against the petitioner.”

The Court expressed that “Section 482 CrPC is a reminder to High Courts, that they are not merely Courts of law, but also Courts of justice and as such possess inherent powers to remove injustice. Inherent jurisdiction is to be exercised ex debito justitiae to do real and substantial justice for which alone, Courts exist.”

The Court allowed the instant petition and ordered the release of petitioner in all 41 cases.

[Aslam Salim Shaikh v. State of Maharashtra, 2023 SCC OnLine Bom 1446, decided on 17-07-2023]

Judgment by: Justice Revati Mohite Dere

Advocates who appeared in this case :

For Petitioner: Advocate Gazala R. Shaikh

For Respondents: Additional Public Prosecutor P.P. Shinde

Buy Code of Criminal Procedure, 1973  HERE

Code of Criminal Procedure

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