A full Bench, comprising Chief Justice Swatanter Kumar, Justice S A Bobde and Justice V K Tahilramani, has held that “a court passing an order of imprisonment upon a subsequent conviction of an accused who is already undergoing a sentence of imprisonment awarded in an earlier case, has power to direct that the subsequent sentence awarded is to run consecutively or concurrently”.

The court was hearing a reference case based on a letter sent by Satnam Gill in December 2007 seeking that his two sentences should run concurrently as he is an HIV positive patient.

Gill was convicted for seven years by a Satara Sessions Court in 2002. He was also convicted to two years by a court in Amritsar in a narcotics case in 1997.

Gill, who is currently lodged in Kolhapur Central Prison, in his letter states that his health is getting spoilt by the day and he is not sure how long will he live. He adds that he has already served two years awarded by the Amritsar court. Now, he has urged the high court to make his sentences concurrent as he wished to die in his native place where his family is.

Gill’s case was first heard by a single judge of the high court who then directed the case to be placed before a larger Bench. Justice Abhay Oka in his order cites several Division Bench orders as well as apex court judgment put forward by the defence and prosecution, and held that this conflict will have to be resolved by placing the matter before a larger Bench.

The full Bench was then constituted to decide “whether power under section 427 of the CrPC can be exercised when the conviction of the accused is in two or more cases for distinct and separate offences arising out of different incidents”.

Gill’s advocate Yug Mohit Chaudhry had argued that the court can exercise its discretion under the CrPC to make the sentences concurrent. Chaudhry argued that in a case where a man is convicted for simple theft eight times his consecutive sentence will amount to 16 years imprisonment which is too harsh. He submitted that section 427 is a beneficial provision meant to provide amelioration for the prisoner.

The Maharashtra government, however, had taken the stand that a convict facing two different sentences in two different cases can’t undergo the sentences concurrently, but has to serve the sentences consecutively.

Additional public prosecutor Aruna Kamat Pai after citing Supreme Court judgments told the court that two sentences in two different cases has to run consecutively.

The judgment has observed that “power is vested in the court¿ but such power need not be exercised on impulses, whims or unregulated benevolence”.