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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 395 OF 2011
Raya Gopal Moon,
Convict No. C-7543,
Central Prison, Nagpur. .. PETITIONER.
..VERSUS..
1. The State of Maharashtra,
through the Secretary, Home
Department, Mantralaya, Mumbai,
2. The Superintendent, Central Prison,
Nagpur. .. RESPONDENTS.
Mr. N.S. Bhat, Advocate (appointed) for the petitioner,
Mr. T.A. Mirza, Additional Public Prosecutor for the respondents.
CORAM : MRS. V.K. TAHILRAMANI &
M.L. TAHALIYANI, JJ.
DATED : AUGUST 2, 2011.
ORAL JUDGMENT (PER MRS. V.K. TAHILRAMANI, J.)
1] Rule. By consent of Mr. N.S. Bhat, learned Advocate for
the petitioner and Mr. T.A. Mirza, learned Additional Public Prosecutor
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for the respondents, rule is made returnable forthwith and the matter is
heard finally.
2] The petitioner has been convicted in two cases. The prayer
of the petitioner is that the sentence of imprisonment imposed on him in
the two cases be made concurrent. The first case is Criminal Case No.
127/02 which was decided by the learned J.M.F.C., Pulgaon by
judgment and order dated 20.10.2004. In this case, he was convicted
under Section 380 of Indian Penal Code and sentenced to R.I. for 2
years. Being aggrieved by the said conviction and sentence, the
petitioner preferred Criminal Appeal No. 47/2004 before Sessions Court,
Wardha. The appeal was dismissed by judgment and order dated
16.9.2009. The conviction under Section 380 and the sentence was
maintained.
3] In the second case by judgment and order dated 12.1.2007
in Sessions Trial No. 155/05 the petitioner was convicted by the learned
Ad-hoc Additional Sessions Judge, Wardha under Section 395 IPC. In
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the said case, he was sentenced to imprisonment for 5 years. Being
aggrieved by the said conviction and sentence, the petitioner preferred
Criminal Appeal No. 56/07 before this Court. The said appeal was
dismissed. However, being aggrieved by the quantum of sentence of 5
years under Section 395 IPC, the State preferred an appeal being
Criminal Appeal No. 330/07 for enhancement of sentence. The said
appeal was allowed by common judgment and order dated 28.3.2008.
The conviction under Section 395 was upheld and the sentence of
imprisonment was enhanced to ten years.
4] When the appeal of the petitioner preferred against his
conviction under Section 380 of IPC was being heard by the learned
Additional Sessions Judge, Wardha, the petitioner had prayed that the
sentence of imprisonment be directed to run concurrently with the
sentence in the earlier case under Section 395 of Indian Penal Code.
The learned Sessions Judge negatived the said plea and the learned
Sessions Judge directed that all the substantive sentences of
imprisonment shall run consecutively.
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5] Being aggrieved thereby, the petitioner has approached this
Court praying that the sentences of imprisonment in both cases be
directed to run concurrently.
6] As far as the two cases are concerned, these two cases are
entirely different incidents and are in no way related to each other. Both
the cases are distinct and different offences, which occurred on different
dates.
7] The Supreme Court in the case of Mohd. Akhtar Hussain
alias Ibrahim Ahmed Bhatti .vs. Assistant Collector of Customs
(Prevention), Ahmedabad and others reported in AIR 1988 SC 2143
observed that when the two offences for which a person is prosecuted
are distinct and different and they relate to different transactions, the
basic rule of thumb over the years has been the so-called single
transaction rule for concurrent sentences. 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
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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] The Division Bench of this Court in the case of Ramesh
Krishna Sawant .vs. State of Maharashtra reported in 1994 Mh.L.J.
825 has held that when the cases do not arise out of the same
transaction and they arise out of different transactions, had different
crime numbers and had been decided by separate judgments, it is not
expedient or in the interest of justice to direct the sentence to run
concurrently. The Division Bench of this Court by judgment and order
dated 21.7.2011 in Criminal Writ Petition No. 341/11 in the case of
Rajendra @ Rajabhat Bajrang .vs. The State of Maharashtra &
another, to which both of us were parties, has taken the same view.
9] In the present case, the transactions in these two cases are
different transactions, both the cases do not arise out of the same
transactions, they have different crime numbers and they have been
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decided by separate judgments. In such case, it is not possible to
direct that all the sentences of imprisonment should run concurrently.
10] In view of the decisions quoted above, the writ petition is
dismissed. Rule stands discharged.
Fees of the appointed Advocate is quantified at Rs.750/-.
JUDGE. JUDGE.
J.
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