S.427 CrPC | Sentences Imposed On Habitual Offender In Separate Trials Can't Run Concurrently Without Considering Gravity: Jharkhand High Court

While disposing of a revision petition, a division bench of the Jharkhand High Court has recently held that sentences in separate trials involving different offences and victims cannot run concurrently without considering the gravity of those offences and their impact on the society.

The division bench comprising Justices Ajay Kumar Gupta and Joymalya Bagchi observed,

“Sentences awarded in these trials cannot be directed to run concurrently under section 427(1) Cr.P.C. without considering the gravity and nature of the offence, maximum punishment that may be awarded upon conviction and the impact of such offence on society including possibility of re-offending.”

The court has further held that any direction regarding the order of execution of the subsequent sentence vis-a-vis the earlier one would not impact the findings/conclusions recorded in the earlier judgment and would therefore not run foul of Section 362 CrPC.

Background

The petitioner was convicted in two separate cases for offences under the Indian Penal Code (IPC) and the Immoral Traffic (Prevention) Act. In the first case, the police raided the hotel of the petitioner and found three victims. Investigation showed that the victims had been kept in the hotel against their will for sexual exploitation. One of the victims stated that she had also been raped by the petitioner. Relying on their deposition and other evidence on record, petitioner had been convicted under Section 376 of the Indian Penal Code and under Sections 3/4/6/7 of Immoral Traffic (Prevention) Act and was awarded a maximum sentence of ten years of rigorous imprisonment.

While undergoing the sentence he was charged in another case on the accusation that he along with others were trafficking five girls, some of whom were under eighteen years, in a Maruti Van for sexual exploitation. Accordingly, he was again convicted under sections 363/363A/367/372/34 of the Indian Penal Code and under Sections 3/4/5/6/9 of Immoral Traffic (Prevention) Act and was awarded a maximum sentence of rigorous imprisonment for 10 years. Both the judgments were upheld in appeal.

Thereafter, the petitioner assailed the conviction and sentence in the two cases in separate appeals, which were dismissed and the conviction and sentence in both the cases were upheld. While dismissing the appeals the petitioner was given a privilege that the sentence awarded in each case shall run concurrently under Section 31 CrPC, however, there was no direction that the sentences awarded in the two cases shall run concurrently in terms of Section 427 CrPC. After the disposal of the appeals, the petitioner filed the present petition praying that the sentences awarded in the two cases be directed to run concurrently.

Another argument posed by the petitioner’s counsel was that Section 362 CrPC bars the Court to alter/revise its earlier judgement and in view of the fact that the Court had already disposed of the criminal appeals affirming the conviction and sentence awarded in both the cases, any further alteration was not possible.

Verdict

While dealing with the issue of whether the petition seeking the aforesaid relief was maintainable, the division bench had to decide as to whether in the instant case a direction under section 427(1) CrPC could be passed.

The bench initially opined that as per the factual matrix of the case it is clear that the offences though similar, did not occur in the course of the same transaction which would have justified simultaneous trial.

The bench then took note of the facts that the petitioner is a serial offender who was a member of an organized crime racket, had abducted, raped and trafficked several women. The victims in the two cases are not the same, and were recovered on different dates and under different circumstances.

The bench then noted that the co-accused in both the cases are different, and the offences though similar were committed by a habitual offender on different dates and involve different victims.

While further noting that the two cases give rise to independent cause of action and have been tried separately, the bench held that sentences awarded in such trials cannot be directed to run concurrently under section 427(1) CRPC without considering the gravity and nature of the offence, maximum punishment that may be awarded upon conviction and the impact of such offence on society including possibility of re-offending.

The bench observed, "When offences involving trafficking of women for sexual exploitation are committed by members of an organised crime racket the possibility of re-offending is most likely and would ordinarily discourage exercise of discretion in favour of concurrent sentencing."

"Petitioner has already been given the privilege of set off in respect of undertrial detention against substantive sentences awarded in each case. Sentences on each count in both the cases have also been directed to run concurrently. Maximum sentence which could have been awarded is life imprisonment," the bench further observed.

On the issue of whether the bar under Section 362 CrPC applied to this case, the court observed, “Subsequent consideration of the prayer for concurrent running of sentences would not call for review of the findings recorded in the appellate judgment, namely, validity of the conviction or quantum of sentence awarded. This issue relates to the order of execution of the subsequent sentence vis-à-vis the earlier one. Any direction in that regard would not impact the findings/conclusions recorded in the earlier judgment and run foul of section 362 Cr.P.C. Hence, we hold the petition is maintainable.”

"In this backdrop, consecutive running of the subsequent sentence after set off does not render the total period of imprisonment to be served disproportionate to the nature of offence and/or the maximum sentence prescribed for the same. Under such circumstances, further privilege of concurrent running of the subsequent sentence is not called for."

While disposing of the revision petition, the bench directed that in the second case the petitioner would be entitled to set off for the period of detention as an undertrial till his conviction and sentence in the 1st case against the substantive sentence awarded to him in the 2nd case. The court further directed that the remainder of the sentence awarded in the 2nd case shall run after the expiry of the sentence awarded in the 1st case.

The petitioner was represented by Advocates NS Ghosh, S Chatterjee and Sourav Mondal. The State was represented by Public Prosecutor SG Mukherjee and Advocates PP Das and MFA Begg.

Case Title: In Re : Nakul Bera @ Nakul Chandra Bera C.R.R 1981 of 2021

Citation: 2023 LiveLaw (Jha) 14