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Balkrishna Bhagwan Salunke Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application Nos. 363 and 364 of 1981
Judge
Reported in1983(1)BomCR259
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 427, 428 and 397
AppellantBalkrishna Bhagwan Salunke
RespondentState of Maharashtra
Appellant AdvocateV.G. Madhabhavi and ;Usha V. Madhabhavi, Advs.
Respondent AdvocateK.H. Chopda, P.P.
Excerpt:
.....with the finding recorded by the courts..........was tried on charge of theft under section 379 read with section 114 of the indian penal code in criminal cases nos. 1612-13-14/p of 1979. he was sentenced under section 379 read with section 114 of the indian penal code for imprisonment of 3 years and to pay a fine or rs. 500/-, in default, to suffer further r.i. for six months in case no. 1614/p of 1981. in case no. 1613/p of 1981 the petitioner was sentenced to rigorous imprisonment for 3 years and fine of rs. 500 in default r.i. for 6 months, under section 411. he was acquitted in case no. 1612/p of 1981. criminal revision application no. 363/81 arises out of these criminal cases. these sentences were confirmed in appeal by the learned additional sessions judge, on 5th march, 1981. the petitioner has filed criminal revision.....
Judgment:

S.J. Deshpande, J.

1. The petitioner along with another accused who was accused No. 2 before the Magistrate, was tried on charge of theft under section 379 read with section 114 of the Indian Penal Code in Criminal Cases Nos. 1612-13-14/P of 1979. He was sentenced under section 379 read with section 114 of the Indian Penal Code for imprisonment of 3 years and to pay a fine or Rs. 500/-, in default, to suffer further R.I. for six months in Case No. 1614/P of 1981. In case No. 1613/P of 1981 the petitioner was sentenced to rigorous imprisonment for 3 years and fine of Rs. 500 in default R.I. for 6 months, under section 411. He was acquitted in case No. 1612/P of 1981. Criminal Revision Application No. 363/81 arises out of these criminal cases. These sentences were confirmed in appeal by the learned Additional Sessions Judge, on 5th March, 1981. The petitioner has filed Criminal Revision Application No. 363 of 1981 against the order of the Appellate Judge. The petitioner is now represented by the Advocate.

2. At the time of hearing, the learned Advocate for the petitioner attempted to challenge the convictions recorded by the courts below. His convictions are based on the evidence on record and especially that of Panchas, which clearly show that petitioner is guilty of the charges levelled against him. After hearing the learned Advocate for the petitioner, I am satisfied that the two courts below have not committed any such error in the procedure or error of basic facts as would enable this Court to interfere with the finding recorded by the courts below. Therefore, the judgment and convictions passed in this case are confirmed.

3. There is another criminal revision application, which arises out of Criminal Case No. 1615/P of 1979. The petitioner is convicted in the said case under section 379 of the Indian Penal Code and sentenced to suffer R.I. for three years and fine of Rs. 100/- in default further R.I. for one month. This order was passed by the Magistrate on 7th March, 1979. In appeal by the petitioner, the learned Additional Sessions Judge confirmed the conviction and sentence on 5th March, 1981. It appears from the judgment of the Appellate Judge that the petitioner has 20 previous convictions. He has also suffered certain sentences. The offence of lifting car was committed by the petitioner in that case. The learned Magistrate has directed in respect of other co-accused that sentences should run concurrently.

4. I have heard both the applications together. The learned Advocate for the petitioner has finally appealed to me on the ground of humanity that the petitioner is now opening a new page in his life. He has started some business and he seems to be on the right line. He is aged 39. The learned Advocate for the petitioner pointed out to me that the sentences which are passed against him are very harsh and involved in three cases, he is sentenced to in all 9 years imprisonment. It was, therefore, pointed out to me that this Court should modify the sentences, to run concurrently. There is no justification for passing such sentences, when duration of the sentences is almost a decade.

5. Under section 397 of the Criminal Procedure Code, the High Court in revision will not be able to pass any order regarding the modification of the sentences, so as to allow the sentences to run concurrently. These are separate cases and in my opinion it will not be possible to allow the prayer strictly speaking relying on the provisions of section 427 of the Criminal Procedure Code.

6. However, this Court in fit cases can exercise the powers under section 482 of the Criminal Code, in certain kinds of cases. The learned Advocate for the petitioner has invited my attention to the judgment of Patna High Court in the case of Baijnath Kurmi v. State, reported in : AIR1961Pat138 Patna High Court felt necessity to exercise this power in respect of modification of sentence. It was held by the Patna High Court rely give on the provisions of section 561-A of the Code, that this power can be exercised by the Court. In that case, accused was to suffer imprisonment for 14 years in all. It was though by the High Court that sentence was of coercive nature and ends of justice would require that the sentences should be made to run concurrently with the previous convictions.

7. Section 561-A of the old Code and section 482 of the new Code are on similar lines. In this case, I find that there are several offences committed by the petitioner. Technically, it would not be possible to say that the sentences should run concurrently, because trials are different. The learned Public Prosecutor has also pointed out that it would not be possible to invoke principle of section 427 of the Criminal Procedure Code. However, I find that the petitioner is subjected to imprisonment in all for 9 years, if the convictions in these two cases are taken into consideration. These sentences which he has to suffer are of coercive nature. The co-accused in another case was made to suffer the sentences and other is passed by the learned Additional Sessions Judge by which the petitioner's other co-accused are made was to suffer the sentences concurrently. I do not see any justification why the present petitioner should not be allowed to suffer the sentences concurrently. It is true that he has involved in more that 20 cases. In this case also he is sentenced to suffer imprisonment. Having regard to the fact that he has several previous sentences and further fact that he is now opening a new life, I think that ends of justice will be must if the sentence passed in Criminal Application No. 364 is allowed to run concurrently with the sentence passed in Criminal Revision Application No. 363. I direct that the sentence passed in Criminal Revision Application No. 364 of 1981 of three years rigorous imprisonment will run concurrently with the sentences passed in Criminal Revision Application No. 363 of 1981 and so that extent the order of the learned Additional Sessions Judge modified.

In the result, Rule in Criminal Revision Application No. 364 of 1981 is discharged, with the above modification. Petitioner to surrender to the police within two weeks.


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