Last Updated on December 7, 2019 by Legalseva.net
Zulfiqar khan the director of NGO theatre age was convicted of sodomizing his students; he was then charged and convicted under Section 377 (Unnatural offences) and Section 292 (sale, distribution of obscene objects to young persons). The lower court convicted him in 3 cases for 7 yearsand stated that the sentence for 2 cases would run concurrently and in total he was sentenced for 14 years.
Zulfiqar khan then appealed in the High court. He also appealed for the quashing of his sentence pending the completion of the appeal proceedings in the High court.
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The case of Zulfiqar khan involves two fundamental legal matters:-
1.The undergoing of two simultaneous sentences concurrently
It was held in Mohd. Akhtar Hussain v Assistant collector of Customs that
“If a given transaction constitutes two offences under the enactments generally , it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences . But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.”
The serving of 2 sentences consecutively is if an individual is sentenced for
3 years for a particular offence, and 4 years for another offence , and the convict has to serve the 3 years of sentence first and then the 4 years , resulting in 7 years of sentence.
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The serving of sentence concurrently , refers to serving of two sentences simultaneously ie, if for the same offence the convict is sentenced for 3 years under a certain act and 4 years under another act , the convict may be directed to serve the sentence concurrently and serve the 4 years of imprisonment which would automatically include the 3 years of imprisonment.
The landmark case further states that “the basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences.
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It was further held in State of Maharashtra v Najakat Alia Mubarak Ali that
“when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well”
Section 31 of the Code of criminal procedure ( Cr.P.C ) provides for sentence provided concurrently.
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2. The quashing of sentence or conviction of a lower court by the High court.
The Code of criminal procedure , 1973 under section 374 allows for appeals in conviction. That is if convicted by a lower court or court of session , a convicted individual has the right to appeal in the high court against such conviction.
If the high court finds substantialgrounds , it may accept the appeal and direct for a re-trial.
In the present case of zulfiqar khan , he appealed in the high court and sought to get his sentence suspended till high court proceedings were complete.
Such suspension of sentence is completely at the discretionof the judge based on appeal by the convict.
Bail in such scenario is given stating valid reasons in writing and providing ample opportunity to the public prosecutor to appeal against such suspension of sentence or bail provided.
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The provisions for such suspension of sentence is provided in Code of criminal procedure, 1973 under
Section 389 ( Suspension of the sentence provided by lower court pending appeal in higher court).
In addition to Section 389 of Cr.P.C, Section 482 of the Cr.P.C gives an inherent jurisdiction to the High Court to stay the conviction on a wider ground that is
‘to secure the ends of justice’.Section 482 of the Cr.P.C reads as follows
“Saving of inherent powers of High court: — Nothing in this code shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this code, or to prevent the abuse of the process of any court or otherwise to secure the ends of justice”.
For instance, if the aggrieved person finds it difficult to get the conviction order stayed by the appellate court, the appellant may invoke the original jurisdiction of the high court and may get the order of conviction stayed and stop the disabilities attached with the conviction.
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The High Court in exercise of its inherent jurisdiction underSection 482 of the Code can also stay the conviction if the power was not provided by Section 389 of the Code.
In Ravikant S. Patil v. Sarvabhouma. Bagali the appellant was convicted and sentenced to undergo imprisonment for a period of seven years; criminal appeal was preferred by the appellant challenging the judgment of conviction and order of sentence. The elections to Karnataka Legislative Assembly were notified. The appellant moved an application in the pending appeal, for stay of the order of conviction, so that he can contest the election. The Bombay High Court, by order, stayed the conviction pending appeal. The appellant was declared elected.
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You may also contact best/top/expert criminal lawyers of Punjab and Haryana High Court Chandigarh for your case before relying upon the above said judgments as they would be giving you first rate Free Legal Advice/Legal Opinion on Criminal matters in your best interest.
the Supreme Court in Padam Singh case held that:
“It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court”.
In the present case of Zulfiqar Khanthe high court did not quash the sentence pending appeal, and hence Zulfiqar khan will remain behind bars till the high court acquits him under the appeal filed.
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This post is written by Alex John from Pune. For more info on subject, please dial 99888-17966.
