DHARMANANDA BEHERA Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner prays for a direction to grant him benefit of detention in custody in a case which ended in acquittal, in another case for which he is presently in custody.

(2.) The case presents some interesting features. Filtering out unnecessary details, fact situation which is undisputed is as follows: The petitioner is in custody having been convicted to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/-, with default stipulation of six months rigorous imprisonment, in S.T. No. 110 of 1979 arising out of G.R. Case No. 861 of 1978. The original judgment passed by the Asst Sessions Judge, Cuttack was confirmed in appeal by the learned Sessions Judge, Cuttack in Criminal Appeal No. 31 of 1981. This Court did not interfere in Criminal Revision No. 547 of 1981. Apex Court affirmed the conviction and sentence in Criminal Appeal No. 377 of 1986. In the above case, he was in custody as an under-trial prisoner from 22.7.1979 to 22.11.1979. After his special leave petition was dismissed by Apex Court, he is in custody since 13.3.1991. In between he was in custody in some other cases, details of which are as follows:

(3.) At this juncture, it is relevant to take a birds eye view of the provisions contained in Sections 427 and 428, Cr.P.C. The former deals with sentence on an offender already sentenced for another offence. It fixes time from .which a sentence can be passed on an offender. It .states that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to 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. The general rule is that sentences commence to run from the time of their being passed and this section makes, an exception in the case of persons already undergoing imprisonment i.e. subsequent sentence shall commence at the expiration of the previous sentence, unless the Court directs that it shall run concurrently with the previous sentence. This rule has no application if (a) the transaction relating to the offence is not the same, or (b) if facts constituted two offences are quite different. Unless Court directs that such sentence shall run concurrently with such previous sentence, the imprisonment shall commence at the expiration of sentence to which offender has been previously sentenced sub-sec. (1) of Sec. 427 contemplates a sentence anterior in time to the one which a person is undergoing, and also a subsequent sentence on a subsequent conviction, A concurrent sentence carries the inbuilt conception of the prisoner undergoing the sentences in connection with two different punishments imposed in two different cases simultaneously or concurrently at the same time. Law has resorted to a fiction and has treated the sentence being undergone by the prisoner as being undergone for both the offences simultaneously or concurrently. The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constituted two offences under two enactments, generally it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application in the transaction relating to offences is not the same or the facts constituting the two offences are quite different. No single consideration can definitely determine the proper sentence. In arriving at an appropriate sentence, the Court must consider, and sometimes reject many factors. In consecutive sentences, in particular, the Court cannot afford to be-blind to imprisonment which the accused is already undergoing. Similar view, was expressed by apex Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Asst. Collector of Customs (Prevention), Ahmedabad and others1. The Court must apply its mind to the facts and circumstances and should not make it a meaningless exercise, missing and nuances of the case. The Court in exercise of power under Sec. 482 can direct sentence to run concurrently. Such an order can be passed to secure ends of justice. But the power should not be used in a routine manner.