Aslam Salim Shaikh v. The State of Maharashtra

10 Vishrantwadi Police Stn CR No.36 of 2014 R.C.C. No.72/2015 10.09.2014 18.03.2015 U/s.380 r/w.34 IPC R.I. for 18 months and fine of Rs.500/- i/d. RI for 1 month. U/s.457 r/w.34 IPC – RI for 1 Yr.

11 Sahakar Nagar Police Stn CR No.6 of 2014 R.C.C. No.4051/2014 Ld. 11th Magistrate, F.C., Pune U/secs.457,380 r/w.34 of IPC 02.08.2014 06.01.2015 U/s.380 IPC S.I. for 2 Yrs. and fine of Rs.2000/- i/d. SI for 7 days. S.I. for 2 yrs. and fine of Rs.2000/- id. SI – 7 days.

12 Sahakar Nagar Police Stn CR No.26 of 2014 R.C.C. No.2672/2015 Ld. 11th Magistrate, F.C., Pune U/secs.454,380 r/w.34 of IPC 06.09.2014 03.09.2015 U/s.380 IPC S.I. for 2 Yrs. and fine of Rs.2000/- i/d. SI for 7 days. S.I. for 1 yr. and fine of Rs.2000 i/ d. SI 7 days.

13 Sahakar Nagar Police Stn CR No.3 of 2014 R.C.C. No.674/2016 Ld. 11th Magistrate, F.C., Pune U/secs.457,380 r/w.34 of IPC 02.09.2014 08.03.2016 U/s.380 IPC 2 Yrs. Imprisonments and fine of Rs.2000/- and i/d SI 4 days U/s.457 IPC imprisonment 2 years and fine of Rs.2000/- Id. SI – 4 days.

N. S. Chitnis 6/22

14 Sahakar Nagar Police Stn CR No.36 of 2014 R.C.C. No.601/2016 Ld. 11th Magistrate, F.C., Pune U/secs.457,380 r/w.34 of IPC 09.03.2014 08.03.2016 U/s.380 IPC - SI 2 Yrs. Imprisonments and fine of Rs.2000/- and i/d SI 4 days U/s.457 IPC SI 2 years and fine of Rs.2000/- id. SI – 4 days.

15 Sahakar Nagar Police Stn CR No.122 of 2014 R.C.C. No.78/2015 Ld. Addl. Sessions Judge, Pune. U/secs.454,380 of IPC 02.09.2014 19.04.2017 U/s.380 IPC SI 2 Yrs. U/s.454 IPC SI 2 years.

16 Sahakar Nagar Police Stn CR No.106 of 2014 R.C.C. No.77/2015 Ld. Addl. Sessions Judge, Pune. U/secs.454,380 of IPC 04.09.2014 19.04.2017 U/s.380 IPC SI 2 Yrs. U/s.454 IPC SI 2 years.

17 Khadak Police Stn CR No.08 of 2014 R.C.C. No.4488/2014 Ld. J.M.F.C., 6th Court, Pune. U/secs.457,380,511, 34 of IPC 01.11.2014 06.05.2015 U/s.457 IPC SI – 6 months & 15 days and fine Rs.100/- i/d SI 4 days 380 r/w.511 IPC SI 6 months 18 Khadak Police Stn CR No.113 of 2014 R.C.C. No.651/2015 Ld. J.M.F.C., 6th Court, Pune. U/secs.454,380,34 of IPC 31.10.2014 29.06.2015 U/s.454 IPC SI – 8 months and fine Rs.100/- i/d SI 2 days 380 r/w.34 IPC SI 6 months and fine Rs.100/- i/d. SI 2 days.

N. S. Chitnis 7/22

19 Khadak Police Stn CR No.214 of 2010 R.C.C. No.4850/2010 Ld. J.M.F.C., 6th Court, Pune. U/secs.379 of IPC 30.10.2010 27.09.2016 U/s.379 IPC RI – 3 Yrs. and fine Rs.5000/i/d SI 2 months

20 Khadak Police Stn CR No.05 of 2008 R.C.C. No.1235/2008 Ld. J.M.F.C., 6th Court, Pune. U/secs.457,380 of IPC 15.01.2008 27.09.2016 U/s.457 IPC RI – 3 yrs. and fine Rs.3000/- i/d SI 2 months 380 IPC RI 3 yrs. and fine Rs.3000/- i/d.SI 2 months.

21 Khadak Police Stn CR No.150 of 2011 R.C.C. No.3220/2011 Ld. J.M.F.C., 6th Court, Pune. U/secs.454,457, 380 of IPC 02.07.2011 27.09.2016 U/s.454 IPC RI – 2 yrs. and fine Rs.3000/i/d SI 2 months RI – 2 yrs. and fine Rs.3000/i/d SI 2 months 380 IPC RI 2 yrs. and fine Rs.3,000/- i/d. SI 2 months.

22 Warje Malwadi Police Stn CR No.113 of 2015 R.C.C. No.475/2015 Ld. J.M.F.C., Pune. U/secs.454,380,411 of IPC 01.10.2014 22.06.2015 U/s.454, 380, 411 IPC Imprisonment – 3 yrs. and fine Rs.7000/- i/d SI 5 months 23 Warje Malwadi Police Stn CR No.40 of 2014 R.C.C. No.2003/2015 U/secs.454,380,411 of IPC 04.10.2014 22.06.2015 U/s.454, 380, 411 IPC Imprisonment – 3 yrs. and fine Rs.7000/- i/d SI 5 months

N. S. Chitnis 8/22

24 Warje Malwadi Police Stn CR No.235 of 2014 R.C.C. No.599/2015 Ld. J.M.F.C., Court No.3, Pune. U/secs.454,457,380 r/w.511 of IPC 03.10.2014 26.08.2016 U/s.454, 380, 511 IPC Imprisonment – 2 yrs. and fine Rs.1000/- i/d SI 10 days.

25 Bharati Vidyapeeth Police CR No.197 of 2014 R.C.C. No.0400617/2015 U/secs.454,457,380, 511 of IPC 02.12.2014 31.07.2015 U/s.454 IPC RI – 6 months and fine Rs.2000/- i/d SI 3 months RI – 2 yrs. and fine Rs.2000/- i/d SI 3 months 380 r/w.511 IPC RI 6 months

26 Bharati Vidyapeeth Police CR No.73 of 2014 R.C.C. No.4218/2015 Ld. J.M.F.C., Court No.4, Pune. U/secs.454,380 of IPC 02.12.2014 28.07.2016 U/s.454, 380 IPC RI – 3 yrs. and fine Rs.5000/- i/d RI 1 yr.

27 Bharati Vidyapeeth Police CR No.227 of 2014 R.C.C. No.807/2015 Ld. J.M.F.C., Court No.4, Pune. U/secs.454, 380, 34 of IPC 02.12.2014 28.07.2016 U/s.454, 380,34 IPC RI – 3 years fine Rs.5000/i/d RI 1 year

N. S. Chitnis 9/22

28 Hinjwadi Police Stn CR No.295 of 2014 R.C.C. No.4541/2014 Ld. J.M.F.C., Court No.7, Pune. U/secs.454,457,380 r/w.34 of IPC 28.10.2014 07.09.2015 U/s.454 r/w.34 IPC RI – 9 months and fine Rs.1000/- i/d SI 10 days U/s.457 r/w.34 IPC RI – 9 months and fine Rs.1000/- i/d SI 10 days 380 r/w.34 IPC RI 9 months and fine of Rs.1000/- i/d SI – 10 days 29 Hinjwadi Police Stn CR No.311 of 2014 R.C.C. No.4818/2014 Ld. J.M.F.C., Court No.7, Pune. U/secs.454,457,380 r/w.34 of IPC 28.07.2014 07.09.2015 U/s.454 r/w.34 IPC RI – 1 year and fine Rs.1000/i/d SI 10 days U/s.457 r/w.34 IPC RI – 1 year and fine Rs.1000/- i/d SI 10 days 380 r/w.34 IPC RI 1 year and fine of Rs.1000/- i/d SI – 10 days 30 Hinjwadi Police Stn CR No.116 of 2014 R.C.C. No.4819/2014 Ld. J.M.F.C., Court No.7, Pune. U/secs.454,457,380 r/w.34 of IPC 28.07.2014 07.09.2015 U/s.454 r/w.34 IPC RI – 1 year and fine Rs.1000/i/d SI 10 days U/s.457 r/w.34 IPC RI – 1 year and fine Rs.1000/- i/d SI 10 days 380 r/w.34 IPC RI 1 year and fine of Rs.1000/- i/d SI – 10 days

N. S. Chitnis 10/22

31 Shivaji Nagar Police Stn CR No.16 of 2015 R.C.C. No.0403531/2015 U/secs.353 of IPC 19.05.2015 18.09.2015 U/s.353 IPC RI – 8 months

32 Kondhva Police Stn CR No.314 of 2014 R.C.C. No.91/2015 Ld. J.M.F.C., Cantonment Court, Pune. U/secs.380 of IPC 16.09.2014 14.01.2016 U/s.380 IPC SI – period already undergone in detention

33 Wanwadi Police Stn CR No.96 of 2015 R.C.C. No.435/2015 Ld. J.M.F.C., Pune. U/secs.454,457,380 r/w.34 of IPC 22.04.2015 17.02.2016 U/s.379 SI – 2 Yrs., SI – 2 Yrs., SI – 3 Yrs.,

34 Wanwadi Police Stn CR No.125 of 2014 R.C.C. No.859/2014 Ld. J.M.F.C., Cantonment Court, Pune. U/secs.454,457,380 r/w.34 of IPC 03.11.2014 12.04.2016 U/s. 380 r/w. 34 SI – 2 Yrs., U/s.454 r/w. 34 IPC SI – 2 Yrs., U/s.457 r/w. 34 IPC SI – 3 Yrs.,

N. S. Chitnis 11/22

35 Wanwadi Police Stn CR No.142 of 2014 R.C.C. No.101 /2016 Ld. J.M.F.C., Lashkar, Pune. U/secs.454,457,380 r/w.34 of IPC 15.09.2015 31.08.2016 U/s. 454, 457, 380 r/w. 34 of IPC SI – 2 Yrs.,

36 Bibwewadi Police Stn CR No.78 of 2014 R.C.C. No.4568/2014 Ld. J.M.F.C., Pune. U/secs.454,457,380 of IPC 18.08.2014 28.07.2016 U/s.454, 457, 380 IPC RI – 2 Yrs. and fine Rs.5000/i/d RI 6 months 37 MIDC Bhosari Police Stn CR No.112 of 2014 R.C.C. No.57/2015 Ld. J.M.F.C., Pimpri, Pune. U/secs.454,380 r/w.34 of IPC 07.11.2014 29.08.2016 U/s.454,380 r/w.34 IPC SI – 1 year, 9 months and 22 days 38 Vimantal Police Stn CR No.112 of 2014 R.C.C. No.0400268/2015 U/secs.454,380,411 r/w.34 of IPC 13.11.2014 09.09.2016 U/s.380 r/w.34 IPC RI – 3 yrs. and fine Rs.5000/- i/ d SI 6 months U/s.454 r/w.34 IPC RI – 3 years and fine Rs.5000/- i/d SI 6 months 39 Vimantal Police Stn CR No.191 of 2014 R.C.C. No.0400269/2019 U/secs.454,380,411 r/w.34 of IPC 13.11.2014 09.09.2016 U/s.380 r/w.34 IPC RI – 3 yrs. and fine Rs.5000/- i/ d SI 6 months U/s.454 r/w.34 IPC RI – 3 years and fine Rs.5000/- i/d SI 6 months

N. S. Chitnis 12/22

40 Vimantal Police Stn CR No.115 of 2014 R.C.C. No.0400270/2015 U/secs.454, 457, 380, r/w.34 of IPC 13.11.2014 09.09.2016 U/s.380 r/w.34 IPC RI – 3 yrs. and fine Rs.5000/- i/ d SI 6 months U/s.457 r/w.34 IPC RI – 3 years and fine Rs.5000/i/d SI 6 months 41 Vimantal Police Stn CR No.139 of 2014 R.C.C. No.0400272/2015 U/secs. 454, 457, 380, r/w.34 of IPC 13.11.2014 09.09.2016 U/s.380 r/w.34 IPC RI – 3 yrs. and fine Rs.5000/- i/ d SI 6 months U/s.457 r/w.34 IPC RI – 3 years and fine Rs.5000/i/d SI 6 months.

3. It appears, that on arrest in one case, the petitioner came to be arrested in the other cases, on transfer warrant. As noted above, the petitioner has pleaded guilty in all the 41 cases and has been sentenced to imprisonment and payment of fine, as stated aforesaid. Although, some of the cases were pending before the same Court, there is no direction that the sentences to either run concurrently/consecutively.

N. S. Chitnis 13/22

4. Section 427(1) Cr.PC provides that 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 the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence. In other words, Section sub-section (1) of Section 427 confers a discretion on the Court to direct that the subsequent sentence following a conviction shall run concurrently with the previous one. The Apex Court in the case of Mohd Zahid v/s State through NCB[1], whilst interpreting the said provision and after considering the precedents, has held in para 17 as under:-

5. Thus, it is evident that the Court has the power and discretion under Section 427(1) of Cr.PC, to issue a direction that all the subsequent sentences run concurrently with the previous sentence. However, the said discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts of the case. Admittedly, in none of the cases as reflected in the chart aforesaid, though some of the cases were tried by the same Court and arose from the same police station, there is no specific direction or order by the said Court, that the subsequent sentences to run

N. S. Chitnis 15/22 concurrently with the previous sentence. There is no specific direction issued by the trial Court, before whom there were more than one case pending, in terms of Section 427(1) Cr.PC allowing the subsequent sentences to run concurrently.

6. We find that the Courts before whom there was more than one case pending before them, had failed to exercise their discretion. It appears that the petitioner was not defended by any advocate nor does it appear that he was offered any legal aid by the trial Court. It appears that the petitioner was only 21 years and his family members were dependent on him. It appears that the petitioner pleaded guilty with a belief that he would be released on undergone sentence. It is the petitioner’s case, that he had prayed for leniency on the premise that he belonged to a poor family and that his family was dependent on him, however, whilst handing over the sentence and whilst imposing fine, the prayer of the petitioner was not taken into consideration. None of the Courts have considered these factors. Infact, 3 cases, out of the 41 cases, are of 2008, 2010 and 2011. If

N. S. Chitnis 16/22 according to the prosecution, he was about 21 years of age in 2014, he most certainly, was a juvenile in conflict with law, in 2008, 2010 and may be even in 2011. None of the Courts even dwelled into the dates, presumably because, the petitioner pleaded guilty in the said 3 cases, in 2016.

7. The sentencing policy of criminal jurisprudence mandates Courts to pass such sentences as would meet its primary twin objects of deterrence and re-formation. The deterrent effect of a sentence is to prevent the commission of a similar offence by the convict by confining him to jail and to prevent the prospective offenders from committing such a crime. Infact, compensation some times can be said to have such a deterrent effect. However, the same would depend upon the facts of each case. The sentence of imprisonment should also have a reformative aim, inasmuch as, it should not demoralize the offender and infact, the offender should be given an opportunity depending on the nature of offence to improve himself. Thus, any sentence imposed by any Courts must maintain a proper balance

N. S. Chitnis 17/22 between the deterrent and reformative objects of a sentencing policy and must ensure that the said object is sufficiently met.

8. As noted from the chart reproduced hereinabove, if the petitioner is permitted to undergo imprisonment in all the aforesaid cases, he would be compelled to undergo imprisonment of approximately 83 years 3 months and 5 days, and since he is not in a position to pay the fine, for non-payment of the fine amount, he would require to undergo imprisonment of further 10 years 1 month and 26 days i.e. a total of 93 years 5 months, his entire life, with no hope whatsoever, to even come out of jail. A sentence, more than what a life convict would have to undergo for murder. If permitted, this would certainly lead to travesty of justice. Being alive to this reality, we cannot permit this miscarriage of justice.

9. In this context and having regard to the peculiar facts, it is apposite to quote the words of Earl Warren ‘It is the spirit and not the form of law, that keeps justice alive.’ The petitioner was about 21

N. S. Chitnis 18/22 years old at the relevant time when he was booked in the aforesaid 38 offences and in 3 cases, a juvenile in conflict with law. All, except 3 offences pertain to the period 2014 to 2015. As noted above, it appears that the petitioner could not afford to engage a lawyer having regard to his financial condition and hence pleaded guilty in all the 41 cases. Infact, even the present petition is filed through jail. Since, the cases were tried by different Courts, we are unable to invoke Section 427(1) Cr.PC. However, at the same time, we cannot be oblivious, to the fact, that there will be serious miscarriage of justice, if we fail to interfere and exercise our discretion, in writ jurisdiction as well as under our inherent powers, in the peculiar facts of this case. Courts exist to do justice, and this is one such case, that begs our interference.

10. As rightly said by William Scott Downey, ‘Law without justice is a wound without a cure’. Hence, in exercise of our writ and inherent jurisdiction, we deem it appropriate to put right the clock, to prevent miscarriage of justice, failing which the petitioner

N. S. Chitnis 19/22 would remain incarcerated for more than 90 years, in 41 cases (total), for committing ‘theft’, with no prospect of coming out of jail anytime in the future. The actual period of imprisonment undergone by the petitioner is more than 9 years and without remission more than 11 years. The petitioner was 21 years old and is now about 30 years of age.

11. We have perused a few of the FIRs to satisfy our conscience, with respect to the nature of offences alleged to have been committed by the petitioner. It appears that the said FIRs have been lodged against unknown person/persons. The material in some of the cases, if trial had commenced may have probably ended into petitioner’s acquittal, for want of evidence. It was the bounden duty of the learned Magistrates to have atleast perused the papers before awarding the sentences, more particularly, when the petitioner had pleaded guilty, so as to ensure that the sentences awarded were commensurate with the evidence on record against the petitioner. The learned Judge has also failed to consider, that the petitioner/accused

N. S. Chitnis 20/22 was a juvenile in conflict with law, in cases of 2008, 2010 and may be even in 2011, as it is the prosecution’s case, that the petitioner was 21 years of age in 2014.

12. It is well settled that when there is grave error of law apparent on the face of record or there is a miscarriage of justice, resulting from the orders passed by the Courts below or when it is necessary for enforcing fundamental or legal rights or to meet the ends of justice, the Court can certainly entertain a petition of this nature.

13. Section 482 Cr.PC can be invoked to render complete justice. It can be exercised to give effect to an order under Cr.PC;f to prevent abuse of the process of the Court; and, to secure the ends of justice. In short, Section 482 Cr.PC is a reminder to High Courts, that they are not merely Courts of law, but also Courts of justice and as such possess inherent powers to remove injustice. The petitioner, in the facts, has no other effective alternative remedy to redress his grievance/injustice, that will be caused to him. Inherent jurisdiction is

N. S. Chitnis 21/22 to be exercised ex debito justitiae to do real and substantial justice for which alone, Courts exist.

14. Hence, in the peculiar facts, we exercise our writ jurisdiction, as well as, inherent powers and allow the petition, lest, there is travesty of justice. Hence, we pass the following order: ORDER i) The petitioner be released forthwith, on undergone sentence, in all the 41 cases reproduced hereinabove, unless required in any other case.

15. Petition is allowed and disposed of in above terms. Rule is made absolute in the aforesaid terms. All concerned to act on the authenticated copy of this judgment.

GAURI GODSE, J. REVATI MOHITE DERE, J. N. S. Chitnis 22/22