Anand Chandrabhan Pawar vs State Of Gujarat

The present appellant accused came to be convicted in Sessions Case No. 20 of 2007 with allied sessions cases along with other accused and came to be tried by the learned Additional Sessions Judge, 5th Fast Track Court, Surat at Vyara. In the said Sessions Case No. 20 of 2007, he came to be convicted and sentenced for 7 years with fine of Rs.1000/- with default stipulation for the offence punishable under Sections 395 and 397 of the Indian Penal Code (hereinafter referred to as "IPC" for short). The aforesaid judgment of conviction and sentence came to be delivered by the learned Judge on 31.12.2007 which has been challenged by way of preferring the present appeal. Initially, the present appeal was tagged with Criminal Appeal No. 1218 of 2008 which came to be preferred by the same appellant in connection with Sessions Case No. 9 of 2007. This Court disposed of the said Criminal Appeal No.1218 of 2008 as per following order dated 05.02.2019:-

"Ms.Shah, learned APP places on record the jail remarks clearly indicating that the appellant has already served out sentence of 10 years on 1.1.2019 and therefore, the appeal has become infructuous. On the other hand, Mr.Madansingh Barod, learned advocate states that he has no objection if the appeal stands disposed of as having become infructuous. In view of the above, the present appeal stands disposed of as having become infructuous."

Previously, whenever this appeal was listed, as the appellant accused was not represented through any advocate, as per the direction of this Court, the Gujarat High Court Legal Services Authority provided the services of learned advocate Mr. Madansingh Barod as legal aid counsel. Even, as during the course of hearing, some legal points were required to be considered, this Court requested learned senior advocate Mr. Yogesh Lakhani to assist the Court as amicus curiae which proposal he rightly accepted.

Today, learned senior advocate Mr. Lakhani has submitted that though on going through the entire record & proceedings, some arguable points are emerging out, the present appellant accused is involved in series of offence of same nature and there appears some doubt as regards his identification as he came to be identified at a very belated stage by way of holding test identification parade and thereafter, during the course of trial. He has submitted that since the appellant has substantially undergone the sentence of about 10 years, in order to put an end to the matter, he has requested that the ends of justice would be served if the sentences imposed in both the sessions cases are ordered to run concurrently while maintaining the sentence.

The record & proceedings clearly indicates that over and above two sessions cases, the appellant is also involved in other several cases. Since the appellant came to be identified in the test identification parade as well as before the learned trial court by eye-witnesses, this Court is of the view to maintain the conviction. However, now, the question arises for determination as to whether in view of Section 427 of the Code of Criminal Procedure, since the appellant came to be convicted in two different sessions cases separately on the same day by the same Sessions Judge, the sentence can be ordered to run concurrently in both the cases.

On this aspect, learned senior advocate Mr. Lakhani assisted by learned advocate Mr. Barod has pointed out that the law on the issue is no more res intergra so far directing the accused to undergo subsequent sentence of imprisonment concurrently. Hon'ble the Supreme Court recently in the year 2017 in couple of cases, gave the normal rule in exceptional cases for issuing such direction. He has further pointed out that only for default sentence, the courts should not order to run the sentence concurrently with the previous conviction. He has placed reliance upon the decisions in Anil Kumar vs. State of Punjab [(2017) 5 SCC 53] and P. N. Mohanan Nair vs. State of Kerala [(2017) 14 SCC 719].

On the other hand, learned Additional Public Prosecutor Ms. Monali Bhatt has strongly objected for ordering the sentence to run concurrently as the appellant accused is involved in series of offence of such nature. Learned APP has further submitted that as the appellant is hazardous to the society, this Court should not exercise the judicial discretion by ordering the sentence to run concurrently in both the cases.

This Court has minutely gone through the entire record & proceedings. The record & proceedings clearly indicates that the trial conducted and investigation carried out are in such a manner that the accused is brought to the concerned police station under the transfer warrant from Maharashtra and put to test identification parade after long time. Even the trial came to be held after about couple of years. Except the identification, no other direct or substantive evidence is available against the appellant. In that view of the matter, since the judgment is delivered by the same Sessions Judge on the same day i.e. on 31.12.2007, in view of general rule as laid down by Hon'ble the Supreme Court in the aforesaid decisions, this Court exercises the judicial discretion and extends the benefit to the appellant by directing to run concurrently substantive sentence of 7 years and 10 years in both Sessions Case Nos. 20 of 2007 and 9 of 2007 instead of consecutively.

For the reasons recorded above, the appeal stands partly allowed. While maintaining the conviction recorded as per judgment dated 31.12.2007, this Court directs to run the sentence of 7 years and 10 years imposed upon the appellant in respect of Sessions Case Nos. 20 of 2007 and 9 of 2007 concurrently instead of consecutively. However, the fine amount and the default sentence or sentences are maintained. If the fine amount is not paid, the default sentence will run consecutively and not concurrently. The substantive sentences imposed upon the appellant are ordered to run concurrently and the appeal stands allowed to that extent only.

The Jail Authority shall promptly assess the sentence served out by the appellant. If the appellant has already undergone the sentence of 10 years and has paid the amount of fine, he shall be released forthwith from the jail, if his presence is no longer required in connection with any other case.

The record & proceedings be sent back to the trial court concerned forthwith.