YAMIN  Vs THE STATE ( GOVT OF NCT OF DELHI)

Crl.A. No.769/2015 Page 1 of 25
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 09.12.2020
Pronounced on: 11.01.2021

+ CRL. A. 769/2015 & Crl.M.A. 230/2019
YAMIN ….. Appellant
Thro ugh: Mr. Kanhaiya Singhal, Adv.

versus

THE STATE ( GOV T OF NCT OF D ELHI) ….. Respond ent
Through : Mr. G. M. Farooqui, APP for Sta te.

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

J U D G M E N T
CRL.M.A.No. 230/2019 in CRL. A. 769/2015
1. The hearing has been conducted through video conferencing.
2. Present applicant had filed the appeal mentioned above by seeking
prayer as under:
“directing the sente nce awarded in pursuance to FIR
No.1013/20 04 re gistered at P olice Station U ttam Nagar
for the offences punishable under sections 307/324/34
IPC concurre ntly with the sentence a warded in
2021:DHC:86Crl.A. No.769/2015 Page 2 of 25
pursuance to FIR No. 67/2011 registered at P olice Station
Swaroop Nagar for the offences punishable under
sections 39 4/397 IPC or to reduce the sentence to the
period already undergone by the appellant. ”
3. However, the appel lant moved present application under section 427
read with section 482 Cr.P.C., seeking dispos al of the appeal with a
direction that the seven years sentence awarded to the appellant in case FIR
No.1013/2004 for the offence punishable under section 307 IPC registere d at
Police Station Uttam N agar should run concurrently with 10 years sentence
awarded in case FIR No.67/2011 for the offence punishable under secti on
394/397 IPC registered at Poli ce Station Swaroop Nagar; or , that in
alternative, the sente nce be reduced to the period already undergone.
4. The application came on hearing on 14.08.2019 before this Court and
notice was issued. Thereafter, the issue of sentence s to run concurrently (as
in present application) was carried out by a co-accused na mely Vicky @
Vikash in the ca se arisi ng ou t of FIR No.65/2007 registered at P olice Station
Swaroop N agar in which by order dated 31.01.2020 passed in Crl.A.
No.208/2020, the Hon ’ble Supreme Court has allowed the plea taken by the
abovenamed co -accused. The said case is r eported as 2020 SCC OnL ine SC
2021:DHC:86Crl.A. No.769/2015 Page 3 of 25
116.
5. During hearing of the present application on 02.07.2020, lear ned APP
for State argued that the applicant/appellant has criminal antecedents and
has been involved in 21 other cases. Accordingly, vide order dat ed
02.07.2020, the Social Wel fare Department of the Government o f NCT of
Delhi was directed to a ppoint a Probation Officer, to examine the appellant ’s
case and assess the family background, the family situati on, the chan ces of
reformation and reinte gration of the appellant with family and society and
other r elevant factors, as per the proto col of the said Department, and submit
the report.
6. Pursuant to the directions of this Court, Probation Of ficer, Man doli
Jail filed its report dated 21.07.2020 wherein st ated as und er:
“Name of the p erson under study: Yamin.
Personal History: – Accused/ convict Yam in is 38 years
old and married. He is presently lodged in Central Jail
No.12, Mandoli, Delhi and his fam ily lives in own
substandard house built in an area a round 25 sq. yards.
along with fami ly on the above said address, which
comprises of 05 people. He is illiterate and wishes to live
a normal social life after his release from the j ail. He was
running a meat shop to ear n his livelihood as narr ated by
the convict. He is sole bread earner in h is family.
Details reg arding Behav iour, Ha bits and moral values
2021:DHC:86Crl.A. No.769/2015 Page 4 of 25
etc:- The convict is habitual of beedi smoking, gutkha
chewing and othe r prohibited and health thre atening
substances. He was addicted of intoxicants before his j ail
tenure . It has been narra ted by the j ail offic ials and also
verified from the jail reports that the convict i s indulged
in nuisance conduct and engages in quarrels , threatening
and und esirable behaviour with fellow convicts a nd jail
officials . A summar y of punishments /warnings imp osed
on the convi ct in the j ail is enclosed herewith as
Annexure -A.
Temperament, Character & Personality Trait s:- The
convict is ag gressive and short tampered in his behaviour
and em otionally unstable . He becomes violent too an d
none of the staff or fellow convicts has any appreciation
for his behaviour .
Physical and M ental History and Pr esent Conditions :-
Convict ’s mental condition appeared to be normal and he
shares about his p lans to settle down pea cefully after his
release f rom jail.
Contact with Socia l & Religious Organization , if any: –
Reported Ni l.
Economic Conditions of the Family: – The family of the
convict is presently residing in their own house co vering
an area around 25 Sq. Yards in JJ Co lony Bind apur and
falls in the lower income group.
Famil y Det ails:-
Sr.
No. Relationship
with the
Convict Socio-economic status
1. Father Sh. Nayab Khan, aged 70
years , is under medication of
tuberculosis .
2021:DHC:86Crl.A. No.769/2015 Page 5 of 25
2. Mothe r Smt. Khurshi d Begum, aged 68
yrs., is a housewife.
3. Brother First – Sh. Aftab , aged 35 yrs .,
is married and lives separately
with his family.
4. Brother Second – Sh. Naw ab, aged 32
yrs., is married and lives
separately with his f amily.
5. Sister Smt. Mal ka, aged 39 y rs., is
married and lives with her
children a nd in -laws.
6. Wife Smt. Shabnam, aged 32 y rs., is
an illiterate house wife and
doing household works as a
domestic labour in
neighbourhood in order to ear n
livelihood for her family in the
absence of her husband – the
convict.
7. Daughter Ms. Sanna, aged 14 yrs ., is
studying in school.
8. Son Master Mannu @ Manohar,
aged 8 yrs ., is also a student.

Report o f Neighbours : Neighbours have not reported
favourab ly in view of his past multiple criminal cases.
The n eighbours particularly requested the PO about non –
disclosure of their identi ties.
Attitudes of Family Towards Offenders and Extent of
his Influence of him/her: – The family members of the
convict are wi lling to see him released from jail as early
2021:DHC:86Crl.A. No.769/2015 Page 6 of 25
as possible and want to resume their socio -econ omic life.
Home Surrounding and General O ut Look: – The famil y
of the convict lives in JJ C olony and condition of civic
amenities are poor. The home surrounding is very
congested and unhygienic . People living in the locality
belong to poor/low socio econom ic strat a and
unempl oyed you th of the neighbourhood are prone to
criminal activities .
Offenders Own Reaction t o the Offence and his Attitude
Towards Po ssible Punishment :- Convict feels repentant
about his guilt and confessed to have committed the
offence. He is seeking l enient consideration from
author ities and ho pe for his early release.
Obser vation :- The convict is desirous of rest arting a
normal social life after his release from the jail and he
also expressed his willingness to build peaceful and
cordi al relations with e veryone in society, t hough the
convict ’s past criminal cases evidently est ablish th at the
convict is a threat to the society. ”
7. Learned APP while oppo sing the present application filed by the
appel lant subm itted that On 17.11.2004 on receiving of D D No 39 at Police
Station Uttam Nagar , Delhi, ASI Ramphal along with Ct Rakesh reached at
D-58B Chankya place where he came to know that injured ha d been taken to
DDU Hospital by CAT ambulance. Then they rea ched at DDU hospital and
found that injured Amardeep and Bharat Thakur were admitted. ASI
Rampha l collected MLC of the injured and recorded the statement of
Amardeep on 17 .11.2004 wherein injured Amardeep reported that on
2021:DHC:86Crl.A. No.769/2015 Page 7 of 25
16.11.2004 at about 8:45 PM accused Yamin stabbed his father and Arvind
stabbed him with knife while Kamlesh and Ram Pratap caught hold them.
On the basis of said statement and a case vide FIR No. 1013/2004 U/s
307/34 IPC was registered at Police Station Uttam Nagar , Delhi .
8. During the course of investigation , statement of the w itnesses were
recorded, site plan was prepared, MLC also c ollected. Accused Arvind w as
arrested and his confessional statement was recorded . Nature of injuries of
Amardeep and Bharat were opined as dangerous injuries. Later o n
Investigation was assigned to SI Neeraj Kumar who formally arrested the
accused Kamlesh as he was on anticipatory ba il. Later on , investigation was
assigned to ASI Ram Chander who formally arrested the accused Yamin as
he was arrested in FIR No. 669/ 2005 U/ s 25 Arms act PS Ut tam Nagar .
Accused Ram Prasad could not be apprehended. Charge sheet u/s 307/34
IPC against accused Kamlesh @ Baby, Arvind and Yamin were filed and
accused put to trial. Later on , accused Ram Prasad was also arrested and
supplementary charge sheet w as filed against him.
9. Vide order s dated 19 .04.2006 and 21 .09.2007 , charge u/s 307/324/34
IPC was fr amed against all the accu sed persons by Trial Court in which
accused pleaded not guilty and claim ed trial.
2021:DHC:86Crl.A. No.769/2015 Page 8 of 25
10. During trial, accused Arvind has expired and proceeding qua him
abated vide order 22 .01.2008 and accused Ram Prasad was declared
proclaimed offender.
11. After e xamination of prosecution witnesses , Trial C ourt held that the
prosecution was able to prove its case beyond reasonable doubt that both the
accused Yamin and Kamles h@ Baby along with Arvind ( since expired) and
Ram Prasad (since PO) in furtherance o f their common intention has caused
injuries to Amardeep and Bharat Thakur with the intention to commit their
murder . Accordingly, the Trial Court convict ed both the accuse d for offence
U/s 307 /34 IPC for attempting to commit murde r of Amardeep and Bharat
Thakur.
12. Consequently, Trial C ourt has impose d a sentence of 7 years of
rigorous imprisonment with fine of Rs 20,000 /- each for the offence U/s 30 7
IPC for attempt to murder to injured Amardeep and Bharat Thakur , in
default of payment of fine , convict s shall further sentence for six months
simple imprisonment. Further directed that if fine is realized from both the
convicts, Rs .35,000/ – shall be paid to the i njured Amardeep and Bharat
Thakur as compensation U/s 357 Cr.P.C.
2021:DHC:86Crl.A. No.769/2015 Page 9 of 25
13. Learned APP further submitted t hat the appellant has following
criminal antecedent :-
Sl.
No. FIR
No. Year U/s Police Station Status of the
case
1. 459 1997 380 IPC Janakpuri Acquitted
2. 475 1997 380 IPC Janakpuri
3. 1115 1998 457/380 IPC Sadar Jaipur
4. 591 1999 392/34 IPC Uttam Nagar Acquitted
5. 733 1999 307/34 IPC Uttam Nagar Acquitted
6. 662 2002 25 Arm s Act Uttam Nagar
7. 767 2003 394/34 IPC Dabri
8. 875 2003 380/411 IPC Uttam Nagar Acquitted
9. 1180 2003 356/379/3 4 IPC Uttam Nagar Convicted
10. 63 2003 25 A rms Act Hari Nagar
11. 549 2004 379/411 IPC Defence
Colony
12. 1013 2004 307/34 IPC Uttam Nagar Convicted
13. 669 2005 25 A rms Act Uttam Nagar Acquitted
14. 37 2006 341/3 23/34 IPC Hari Nagar Convicted
15. 8 2007 21 NDPS Act Uttam Nagar Convicted
2021:DHC:86Crl.A. No.769/2015 Page 10 of 25
16. 150 2008 452/352/34 Bind apur Convicted
17. 258 2008 379 IPC Bindapur Convicted
18. 359 2009 356/379/400 IPC Rajouri
Garden Convicted
19. 64 2011 394/34 IPC Bhalswa
Dairy Convicted
20. 67 2011 397/34 IPC Swaroop
Nagar Convicted
21. 161 2013 186/353/332/147/
149/34 IPC Hari Nagar Acquitted.

14. Learned APP has in formed this Court that the appellan t also filed the
Crl.M.A. No. 10016/2015 in C rl. Appeal No. 811/2015 before th is court
wherein he praye d to direct sentence awarded in case FIR No . 64/2011
registered under section 392 /397/411/34 IP C PS Bha lswa Dairy to run
concurrently with the sentence awarded in FIR No .67/2011 PS Swaro op
Nagar. The s aid application was dismissed vide order/judgement dated
20.05.2016 by observ ing that sentence in the case i.e. 64/2011 and FIR
No.67/2011 ar e commission of d istinct offence at differen t periods. Sentence
order records that A -2 has suffered convict ion in FIR No. 1180/2013 under
section 356/379/34 IPC PS Uttam Nagar, FIR No. 37/2006 under section
324/341/34 IP C PS Ha ri Nagar Delhi; he is involv ed in fifteen other
criminal cases under various offences at various police stations. Apparently,
2021:DHC:86Crl.A. No.769/2015 Page 11 of 25
the appellan ts are habitual hard core criminal.
15. Learned APP submitted that in the instant case, not only the victim
was robbed of valuable articles but also inflicted dangerous injurie s on his
body. Thus, present applicat ion deserves to be dismissed.
16. I have heard learned counsel for the partie s and perus ed the material
available on record.
17. The Appellant herein vide the instant Appl ication U/s 427 Cr.P.C. r/w
Section 482 Cr.P.C. is seeking the direction for concurrent running of
sentences in FIR No. 1013/2004, F IR No. 67/2011 and FIR No. 64/20 11.
The Ch art below delineates the F IR particulars, quantum of sentence
awarded and the status of the respective Appeals filed by the Appellant .
F.I.R. Particulars Quantum of Sentence Status of Appeal
F.I.R. No. 64/2011 ,
U/s. 394 /397 I.P.C.
P.S. Bhalsw a Dairy 10 ye ars RI with fine of
Rs.10,000/ – with default
sentence of 1 month. Crl. A. No. 1020/2013.
Dismissed on
10.03.3016 by this
Court
F.I.R. No. 67/2011
U/s. 392 /394/397 I.P.C.
P.S. Swaroop Nagar. 10 years RI with a fine
of Rs. 10,000/ –
Application U/s 427
Cr.P.C. seeking
concurrent run ning of
sentences in F.I.R. No.
64/2011 and F.I.R. No. Crl. A. No. 811/2015.
Dismiss ed on
20.05.2016 by this
Court
2021:DHC:86Crl.A. No.769/2015 Page 12 of 25
67/2011 dismissed by
this Court on
20.05.2016.
F.I.R. No. 1013/2004
U/s. 307 /324/34 IPC
P.S. Uttam Nagar. 7 years RI with a fine of
Rs.20,000/ – with default
sentence of 6 months on
two counts with the
direction that sentence
shall run concurrently. Crl. A . No. 769/2015
PRESENT APPEAL

18. It is pertinent to ment ion here that s imilar prayer was ma de by co –
accused Vicky in the FIR No. 67/2011 & 64/2011 in Crl.A. No. 1496/2013
titled Vikas @ Vicky vs. State, before this Court. However, vide comm on
judgment dated 2 0.05.2016 passed in Crl.A. No s. 1496/2013 & 811/2015,
pleased to reject the said prayer.
19. The co -accused Vikas @ Vicky filed Criminal Appeal before the
Hon’ble Supreme Cour t vide Crl.A. No. 208/2020 against the common
judgment dated 20.05.2016 of this Court. The Hon’ble Supreme Court
allowed the said appeal vide judgment dated 31.01.2020 by di recting the
sentences to run con currently in F.I.R. No. 64/2011, F.I.R. No. 67/2011 and
F.I.R. No. 263/2009 and further directed t o release the said accused sin ce he
had already suffered 10 years RI. [Criminal Appeal No. 208/2020 titled
“Vicky @ Vikas v. S tate (Govt. of NCT of Delhi)” (2020 SCC Online SC
2021:DHC:86Crl.A. No.769/2015 Page 13 of 25
116)] .
20. Section 427 Cr.P.C. is relevant which reads as under :
“427. Sentence on offender already s entenced for another
offence.
(1) When a person already undergoing a sentence of
imprisonment is sentenced on a subsequent conviction to
imprisonment or imprisonment for life, such
imprisonment or imprisonment for life shall commence at
the expiration of t he imprisonment to which he has been
previously sentenced, unless the Court directs that the
subsequent sen tence shall run concurrently w ith such
previous sentence: Provided that where a person who has
been sentenced to imprison – ment by an order under
section 122 in default of furnishing security is, whilst
undergoing such sentence, sentenced to imprisonment f or
an offence committed prior to the making of such order,
the latter sentence shall commence immediately.
(2) When a person already undergoing a sen tence of
imprisonment for life is sentenced on a subsequent
conviction to imprisonment for a term or impris onment
for life, the subsequen t sentence shall run con – currently
with such previous sentence.

21. It is settled position of the law that the direction to run the sentence
concurrently may be passed by the Trial Court, Appellate Court and the
Revisional Court .
2021:DHC:86Crl.A. No.769/2015 Page 14 of 25
22. The issue of concurrent runn ing of the sentenc es awarded in different
cases came up before the Full Bench of Bombay High Court, in the case of
Satnam Singh Puran Singh Gill vs. State of Maharashtra : 2009 SCC
Online Bom 52. The objection of State was as u nder:
“2. The o bjection raised by the learned A PP to the
application is on the ground that the conviction the
applicant is not based only on one incident but the
conviction is based on two totally independent incidents
or transactions. The submission is th at in view of the
decision of the Division Ben ch of this Court the case of
Ramesh Krishna Sawant Vs. State of Maharashtra (1994
Maharashtra Law Journal 825) power under section 427
cannot be exercised in the present case for directing that
the sentence sha ll run concur rently. Reliance was also
placed on judgment and order dated 04th June 2007 in
Criminal Application No.3959 of 2006 (Sanjeev Kumar
Sadanandan Pillai & Anr. Vs. The State of
Maha rashtra). ”
23. However, while taking into consideration the legislati ve intent,
interpretation of penal statute and the objections of the State , the Court
observed as under:
“21. The provisions of Section 427 of the Code are titled
to provide a benefit in favour of a convict. Whether the
sentence awarded earlier or the sent ence awarded on
subsequent convictio n to run consecutive or concurrent is
a matter of importance not only from the point of view of
the accused but even administration of criminal justice.
The Court has been vested with this power and is
expected to apply this provisio n in every case at the time
2021:DHC:86Crl.A. No.769/2015 Page 15 of 25
of awarding the sentence. The obligation cast upon the
Court is of a mandatory nature as it has the impact of
granting or declining to grant a benefit to a convict.
Thus, it may not be appropriate to read into the
provisions of Section 427 any restric tion or limitation on
the discretion of the Court which has not been
specifically imposed by the Legislature.
22. As we have already noticed, the Legislature in its
wisdom has not imposed any bar or limitation on the
basis of which case of any subsequent c onviction would
fall outside the ambit or scope of Section 427. On the
contrary, to apply these provisions to different cases is
the very intent behind this provision. Sub -section (2) of
Section 427 requires mandatorily that life imprisonment
in two differ ent cases shall run concurrently. To hold that
the provisions of Section 427(1) would not apply to any
case wo uld be an interpretation which would neither be
permissible on any principles or any accepted canons of
interp retation o f statutes nor with refere nce to the
legislative intent behind this provision.
23. We are unable to see any statutory restriction on the
powers of the Court or legislative mandate to exclude any
class of cases from the provisions of Section 427 o f the
Code once the ingredients of t he provision are satisfied. It
is not for the Court to read into the provisions what is not
stated unless it becomes imperative due to the rule of
implied construction. On its plain reading, the language
of the provision does not admit any direct or implie d
restriction. Of course, the Court has to exercise its
discretion guided by law and legal principles. It must be
governed by rules, not by humour and cannot be
arbitrary, vague and fanciful. It essentially has to be
legal, regula r and according to the rul es of reason and
justice. (See Ramji Dayawala & Sons (P) Ltd. v. Invest
Import, (1981) 1 SCC 80).

2021:DHC:86Crl.A. No.769/2015 Page 16 of 25
24. More over, while taking into consideration the discretionary powers of
the criminal Courts, the Full Bench observed as und er:
“28. Another aspect which ne eds to be clarified with
reference to the legislative intent apparent from the
language of the section is that imprisonment of
subsequent convict ion shall commence at the expiration
of the imprisonment to which the accused has been
previously sentenced unl ess the Court directs such
sentence to run concurrently with the previous sentence.
This clearly indicates that the normal rule would be that
sentence would run consecutively and exception is that
they would run concurrently . The pre -requisite of the
excep tion being that Court has to apply its mind and pass
a specific order directing that the sentences shall run
concurrently with the previous sentence but for such
specific exercise of discretion, the rule of sentence
running consecutively would cover the ca se. We have
already noticed that this requirement of law has to be
satisfied by the Court. The law intends to provide a
benefit to the accused of calling upon the Court to
exercise discretion where a sentence awarded in a
subsequent trial would run consecu tively or concurrently
with the previous sentence. Wherever the provi sions of
the Criminal Procedure Code are applicable the Court
would be required to apply the provisions of Section 427
of the Code unless their application was specifically
barred by the Legislature or by its necessary implication.
The language of Section 427 read cumulatively does not
command an accused or a convict to make such an
application as consideration of this aspect of sentencing
requires the Court s to exercise the discretion in terms of
Section 427 of the Code. No doubt, it will be always more
appropriate that the factum of previous conviction and
sentence and the reasons for exercising the judicial
discretion under Section 427 is brought before th e Court
by means of an appropria te application, but this cannot
2021:DHC:86Crl.A. No.769/2015 Page 17 of 25
be termed as a requirement absolutely mandatory and
without which the Court would not be in a position to
pass appropriate orders as regard directing the sentences
to run concurrently or conse cutively. While passing an
order of imprisonment/sentence upon a subsequent
conviction, it will alway s serve the ends of justice better
and would be inconformity with public good that such
discretion is even exercised by the Court suo motu. The
Legislature in its wisdom did not leave any choice or
discretion with the Courts in relation to sentences
covered under Section 427 (2) of the Code and mandated
that they would run concurrently. This is to be seen in
contra -distinction to the judicial discretion vest ed by the
Legislature in the Cou rt under Section 427(1) of the
Code, where all convicts undergoing imprisonment in a
previous conviction, except imprisonment for life, can
invoke the jurisdiction of the Court in terms of Section
427 of the Code. The expres sion “unless the Court
directs” clearly suggested that the Court would apply its
mind and by virtue of some reasoned directions direct
that the sentences shall run concurrently with the
previous sentence.
The Court while dealing with stringent laws and
particularly penal statutes is requ ired to ensure that the
intention of the Legislature is not frustrated and even if
necessary it should take recourse to the rule of purposive
construction as more the stringent is the law less is the
discretion with the Cour t. While dealing with such
enact ments, even on the first principle the course which is
favourable to further the legislative cause should be
adopted and an interpretation which would reduce the
legislation to futility should be avoided. One provision
alone need not be construed in isolat ion and it is always
preferred rule of interpretation that a provision should be
construed with reference to other relevant provisions as
well as the scheme of law underlining the said provisions.
2021:DHC:86Crl.A. No.769/2015 Page 18 of 25
(See Prakash Kumar v. State of Gujarat, (2005) 2 SCC
409).
29. It is also equally well settled principle of law that the
Court cannot enlarge the scope of legislation or intention
when the language of the statute is plain and
unambiguous as well as that the Court would not read
into the provisions what has not been stated in the
language of the provision. (A.N. Roy, Commissioner of
Police v. Suresh Sham Singh, (2006) 5 SCC 745). Section
31 and Section 427 both should be read in conjunction
with the other provisions of the Code which vests the
Court with judicial di scretion in regard to imposition of
imprisonment and should be seen in the backdrop of the
scheme of the Code and basic rule of criminal
jurisprudence with an interpretation which provides an
advantage to the under -trial is preferred to the one
against him . May be parameters and criteria in awarding
sentence under different provisions of the Code would
largely be applicable even to exercise of jurisdiction
under Section 427 of the Code. The nature and gravity of
the previous offence, the punishment inflicte d, the
circumstances leading to the occurrence , conduct of the
accused could be looked into by the Court through the
judgment of the previous conviction while deciding
whether the sentence in a subsequent conviction would
run consecutively or concurrently. The gravity, nature
and circumstances in relation to the crime committed in
subsequent conviction could further help the Court to
exercise the discretion in consonance with the settled
principles. Merely because the convict ion is in two
different cases an d the punishment awarded in previous
conviction was for a heinous crime, per se would not
exclude the jurisdicti on of the Court under Section 427(1)
of the Code. It is apparent that the Legislature in its
wisdom has chosen n ot to impose any such restrictio n on
the power of the Court. The provisions relating to vesting
of jurisdiction or judicial discretion are not t o be
construed narrowly when they are capable of admitting
2021:DHC:86Crl.A. No.769/2015 Page 19 of 25
no ambiguity. the maxim Est boni judicis ampliare
jurisdictionem is indicative of pro per amplification of
jurisdiction particularly in relation to matters arising out
of procedural law. ”

25. It is per tinent to mention here that the Full Bench discussed the
precedents in this regard and also took note of the con flicting judgments and
then obse rved as under:
“55. Thus, there is hardly any judgment brought to the
notice of this court which lays uni versal principle that
wherever the accused is convicted for two different
transactions under two different enactments a t two
different points of time, then the court is divested of its
power and jurisdiction under the provisions of section
427(1) of the Co de. The emphasis in the language under
section 427(1) is not on different offences but the
application thereof is on th e premise of undergoing
sentence of imprisonment in a previous conviction and
directing sentence of imprisonment on a subsequent
convicti on to run consecutively unless directed to run
concurrently by the court of competent jurisdiction. The
exclusion of th e provisions of section 427(1) w ith
reference to different transactions, different offences and
different cases, is not comprehens ible within the
language, particularly, in view of the unambiguous and
clear terms used by the legislature in section 427(1) o f
the Code. The section is proba bly intended to achieve a
twin purpose, one which is beneficial to the accused
where the court is expected to consider directing the
imposition of subsequent sentences to run consecutively
or concurrently with the previous s entence and secondly,
a general and administrative concept that of over –
crowded jails where under -trials and convicts are lodged
2021:DHC:86Crl.A. No.769/2015 Page 20 of 25
so as to even require the State to act in the interest of
administration of criminal justice system and not to
frustrate the pu rpose of sentencing by ill -treat ing the
convict. These alongwith the above -referred criteria are
relevant consideration for exerc ise of jurisdiction but
certainly are not determinative as they would have to be
seen in the facts and circumstances of a given case. the
court which exercises such jurisdiction has to be the
court of competent jurisdiction and the matter essentially
shoul d fall within its jurisdiction. Exercise of judicial
discretion presupposes legal and inherent jurisdiction to
entertain such m atters. ”

26. The Bench finally hel d as under:
“58. In view of our detailed discussion, now we proceed
to answer the que stion referred as under:
a) Neither the court of competent jurisdiction is
divested of its power to pass appropriate order in
terms of Section 427(1) of the Code of Criminal
Procedure, 1973 nor does the accused lose this
statutory benefit of right of consi deration by the
Court, only on the ground that the accused has
been tried in two or more cases separately and they
arise from distinct and sep arate offences arising
out of di fferent transactions/incidents.
b) It is neither permissible nor possible to spell out
universal principle or formula which would be
applicable to all cases for exercise of power vested
in Court under Section 427(1) of the Code . Such
power and judicial discre tion has to be exercised in
terms of the settled precepts of criminal
jurisprudence, sentencing policy and with
reference to the facts and circumstances of a given
case, where the previous and subsequent sentences
of impriso nment awarded to the accused are in two
2021:DHC:86Crl.A. No.769/2015 Page 21 of 25
or more cases for di stinct and separate offences
arising out of different transactions/incidents and
even under different enactments. ”

27. Moreover , a full bench of the Kerala High Court in Mani v s. State of
Kerala : 1983 Cri LJ 1262 held that when no d irection is given by the Trial
court that the sentences were to run concurrently, di rection can be issued by
the High Court under inherent powers even if the stage of exercising
discretion Under Section 427(1) o f the Code i s over, in circumstances which
would serve the purposes mentioned in Section 482. The judgment of Kerala
High Court was noted with approval by the Full Bench of Bombay High
Court.
28. A Division Bench of the Andhra Pradesh High Court in V.
Venkateswarlu v s. State of A.P. : 1987 Cri LJ 1621 held that when two
convictions and sentences are passed against accused by two different courts
and orders have become final , on an application by accused under Section
482 that those sentences may be run concurrently, the Hi gh Court is
competent to i ssue such direction.
29. The Hon’ble Supreme Court in the case of Benson v s. State of
Kerala : (2016) 10 SCC 307 has considered the question of conviction of an
2021:DHC:86Crl.A. No.769/2015 Page 22 of 25
accused in separate trials and the fact that whether the sentences would run
concurrently or consecu tively in exercise of pow ers under Section 427(1) of
Cr.P.C. In the said case, the petitioner before the Supreme Court was
convicted in four different cases and prayed for running of sentences
concurr ently in all those four cases . The petitioner of said case was having
previous involvements in as many as 12 cases (cases involving
392/457/205/379/414/120 -B of IPC). Despite, the Supreme Court in terms of
its judgment directed the running of substantive se ntences concurrently.
30. The Ho n’ble Supreme Court in the case of co-accused Vicky @ Vikas
(supra) considered the issue of running the sentences concurrently. The
petitioner of said case was convicted in 5 cases (including
NDPS/Kidnapping/assa ult on public servant/ robbery ). He had unde rgone
only 1 year 6 months out of 7 years sentence. The Supreme Court directed
the running of sentences in three difference cases concurrently.
31. Even r ecently, this Court in Panka j Verma @ Nikhil v s. State
(Crl.M.A. No.40714/2019 i n Crl. A. No. 611/2018, de cided on 12.06.2020)
passed directions for the concurrent running of the sentences of the
Petitioner (an accused in 4 cases) who had undergone about 1 year 5 months
out of the act ual sentence of 5 years and was in judicial custody for about 7
2021:DHC:86Crl.A. No.769/2015 Page 23 of 25
years.
32. Facts of the case in hand are a s per the available information,
Appellant has been languishing in jail for a protracted period of more than
12 years in F.I.R. No. 1013/2004, F.I.R. No. 67/2011 and FIR No. 64/2011.
He has already underg one a period of more than 4 years and 3 months in the
instant case (F.I.R. No. 1013/2004) and otherwise a total custody of about
12 years. If the remaining sentence awarded in F.I.R. No. 1013 of 2004 is
also directed to run consecutively, then the Appellan t shall be subjected to
prolonged incarceration in prison for a total period of more than 24 years.
33. The Appellant was a yo ung boy aged 18 years at the time of the
commission of the alleged crime in quest ion. Presently, he is aged about 35
years. Further, poverty, illiteracy and mi sguidance resulting due to
impressionable young age, led into Appellant ’s implications.
34. The A ppellant is an illiterate person belonging to a poverty -stricken
family which now co mprises of an old and ailing mother only who has not
only been living a distre ssful life burdened with financial debts for several
years but also battling against several a ge-related diseases, since Appellant’s
2021:DHC:86Crl.A. No.769/2015 Page 24 of 25
protracted incarceration. He has already reac hed to the age of maturity and
the crimes were commi tted as an adolescent pers on.
35. As per report dated 2 1.07.2020 filed by Probation Officer mentioned
above, the family of appellant is in great need of him. The appellant also
needs a fresh lease of life.
36. The appellant undertakes to conduct himself as per the accepted
norms of the society.
37. Regarding involvement of the applicant/appellant in 21 other cases
mentioned above, he has been convicted in 9 cases whereas acquitted in 6
cases.
38. It was argued by learned counsel for the appellant that the appellant
does not dispute the orders of conviction and sent ence as raised in appeal ,
however, seeking directions to run the sentence awarded in the present case
concurrently with the sente nces awarded in other case mentioned above.
39. Keeping in view the facts and the law discussed above and t he fact
that d espite having criminal record of co -accused Vicky @ Vikas, the
Hon’ble Supreme Court directed to run concurrently, this Court is of the
considered opinion that pres ent applicant/appellant deserves same rel ief as
2021:DHC:86Crl.A. No.769/2015 Page 25 of 25
awarded in case of co -accused named above.
40. Accordingly, I hereby direct th at 7 years sentence awarded to the
appellant in case FIR No.1013/20 04 regis tered at Police Station Uttam
Nagar shall run concurrently with the 10 years sentence award ed in case F IR
No.67/20 11 registered at Polic e Station Swaroop N agar.
41. In view of above, the present applica tion is allowed and disposed of.
Crl.A. 769/2015
42. Keeping in view the submissions made by learned counsel for the
appellant , while maintaining the orders of conviction an d sentence, the
present appeal is hereby dismissed.
43. The judgment be uploaded on the website forthwith.

(SURESH KUMAR KAIT )
JUDGE
JANUARY 11, 2021
ab
2021:DHC:86