Sukhdev Raj vs State of Punjab and others

Swatanter Kumar, J. (Oral)

Heard the learned counsel for the parties at some length.

This case was directed to be listed for rehearing in view of the order passed by Hon''ble Mr. Justice V.K. Bali on 16.2.1995. From further argument it is clear that the factum of previous conviction of the petitioner was not obviously brought to the notice of the Additional Sessions Judge, Designated Court, Amritsar on 7.1.1991 and consequently the Court could not have considered the question of previous sentence awarded to the accusedpetitioner to run concurrently or otherwise.

At this stage, it would be relevant to make reference to the provisions of Section 427 of the Code of Criminal Procedure. In subsection 1 of Section 427 of the Code, the sentence awarded to an accused in two cases to run one after the other unless the Court directs the subsequent sentence awarded to the accused to run concurrently, while the provisions of SubSection 2 of the Section 427 of the Code relate to life convict and punishment awarded to an accused/convict subsequently which shall run concurrently with such previous sentence. The provisions of sub section 2 of the Section 427 of the Code, therefore, cover different class of cases which are not interchangeable. Reliance on the judgment of the Supreme Court in Ranjit Singh v. Union Territory Chandigarh and another, AIR 1991 SC 2296, is of no avail to the State inasmuch as the said judgment deals with the question arising under Section 427(2) of the Code. The cited case related to an accused who was awarded life imprisonment twice in different cases and they were directed not to run concurrently and one was to commence after the first imprisonment was satisfied if the sentence of the accused is computed. There is no doubt that the accused in the present case had not brought to the notice of the Trial Court which convicted him on 7.1.1991, his previous conviction. According to the learned counsel for the petitioner it was for the State to bring it to the notice of the Court because the accused was jail. On the other hand, the learned counsel for the State submits that it was for the mala fide intention that the accused did not bring this fact to the notice of the Trial Court because it might have affected the quantum of sentence which might have been awarded to him by the Court concerned.

Certainly it is the duty of the accused to bring it to the notice of the Trial Court his previous conviction, if any, in a subsequent case. The reason for the same is simple that it is the accused who wishes to claim benefit of the sentence to be run concurrently and not the State. It will be unfair even to direct or even observe that it is the duty of the State to bring it to the notice of the Court that the accused in the subsequent case is previous convict. Thus, the accused in the present case had certainly to bring to the notice of the Court his previous conviction, but this mistake of the accused cannot be said to be so fatal to reasonable expectation on the part of the accused to make the prayer in an appeal or revision for directing the sentence to run concurrently. This matter does not prejudice either the prosecution or the defence in any manner whatsoever. The trial Court too has to pass such an order or decline the request of the accused/convict on the basis of the material before it. The law neither postulates any independent enquiry of such matter nor any independent proceedings. If the Trial Court had passed that order, then the Court of Appeal or Revision can certainly entertain the same request because the entire record would be available before the Court. The present petition is directed only to the extent of requesting the Court to pass an order under Section 427(1) of the Code. In the judgment dated 20.9.1995 I have discussed in detail that the State has not brought any fact to the notice of the Court as to why the prayer of the petitioner in the present petition be not granted. In the absence of any serious objection and plausible facts constituting the grounds for declining such a relief, the Court would pass an appropriate order in the facts and circumstances of the case.

As I have already discussed that the judgment of the Supreme Court does not prohibit the granting of such relief and in fact, said judgment has no application of the facts of the present case. I maintain the order dated 20.9.1995 as it was pronounced. This order shall form part of my order dated 20.9.1995.

The petition is finally disposed of.