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2008 DIGILAW 262 (PNJ)

Prern Chand v. State Of Haryana

2008-01-31

RAJESH BINDAL

body2008
Judgment Rajesh Bindal, J. 1. The prayer in the present petition filed by the convict, who is confined in District Jail, Bhiwani is for ordering substantive sentences awarded to the petitioner to run concurrently as against consecutively. 2. Briefly the facts as stated in the petition are that on May 22, 2000, petitioner along with one more accused was involved in case FIR No. 146 registered under Sections 379, 411,465, 467,468, 471, 34 IPC at Police Station, City Narnaul. The petitioner was tried, convicted and sentenced to undergo rigorous imprisonment for two years under Section 379 IPC, six years under Section 467 IPC and two years under Section 471 IPC by the learned Chief Judicial Magistrate, Narnaul vide judgment dated December 7, 2004. 3. Similarly, on May 27, 2000, petitioner was involved in case FIR No. 128 registered under Sections 379, 411 IPC at Police Station, Mahendergarh. The petitioner was tried, convicted and sentenced to undergo rigorous imprisonment for one year under Section 411 IPC by the learned Judicial Magistrate 1st Class, Mahendergarh vide judgment dated November 29, 2004. 4. Similarly, on December 21, 2002, petitioner along with other co-accused was involved in case FIR No. 210 registered under Sections 279, 336, 392, 120B IPC and Section 25 of the Arms Act at Police Station, Bhiwani Khera. The petitioner was tried and convicted under Section 25 of the Arms Act and was acquitted in all other charges vide judgment dated November 2, 2004 and sentenced to undergo rigorous imprisonment for two years under Section 25 of the Arms Act vide order dated November 3, 2004 passed on quantum of sentence by learned Additional Sessions Judge (Fast Track Court), Bhiwani. The petitioner preferred an appeal against the judgment dated November 2, 2004 and order dated November 3, 2004 passed on quantum of sentence by learned Additional Sessions Judge (Fast Track Court), Bhiwani before this Court, which is admitted and the petitioner was ordered to be released on bail. 5. Similarly, on January 26, 2003 petitioner along with one more accused was involved in case FIR No. 16 registered under Sections 307, 341 read with Section 34 IPC and 25 & 27 of the Arms Act at. Police Station, Loharu. 5. Similarly, on January 26, 2003 petitioner along with one more accused was involved in case FIR No. 16 registered under Sections 307, 341 read with Section 34 IPC and 25 & 27 of the Arms Act at. Police Station, Loharu. The petitioner was tried and convicted vide judgment dated June 3, 2004 and sentenced to undergo rigorous imprisonment for fifteen days under Section 341 IPC and seven years under Section 307 IPC vide order dated June 4, 2004 passed on quantum of sentence by learned Additional Sessions Judge (Fast Track Court), Bhiwani. The petitioner preferred a Criminal Appeal bearing No. 1524-SB of 2004 against the judgment dated June 3, 2004 and order dated June 4, 2004 passed on quantum of sentence by learned Additional Sessions Judge (Fast Track Court), Bhiwani before this Court, which is admitted and pending for final disposal and recovery of fine was ordered to be stayed vide order dated August 9, 2004. 6. It is further stated in the petition that at the time of trial of the subsequent cases, sentences awarded to the petitioner in the earlier cases were not brought to the notice of the Court and accordingly, it could not be directed that various sentences awarded to the petitioner should run concurrently. The petitioner being illiterate person was not aware about the law. Presently, he had already undergone three years of sentence in total and in case all the sentences awarded to the petitioner are to run consecutively, he will have to undergo 22 years of sentence. Reliance has been placed upon the judgments of this Court in Mehal Singh V/s. State of Haryana,1 and Balbir Singh V/s. State of Punjab.2 7. On September 6, 2007, the case was adjourned with the observation that the issue raised in the present petition is pending consideration before Full Bench of this Court in 2008 (1) Criminal Court Cases 358 (P&H) (FB): Criminal Appeal No. 601-DB of 2005. On November 16, 2007 in the absence of counsel for the petitioner, while recording that the judgment in Criminal Appeal No. 601-DB of 2005 has been pronounced and in terms of the ratio of law laid down there in a petition under Section 482 of the Code of Criminal Procedure (for short the Code") directing the sentences to run concurrently may not be maintainable, "the case was adjourned to January.28, 2008 for arguments. Even on the next date, no one appeared for the petitioner but still in the interest of justice, the case was adjourned to January 30, 2008. On that date also, no one appeared for the petitioner and accordingly after hearing Mr. Navneet Singh, learned Assistant Advocate General, Haryana for the State, the judgment was reserved. 8. A Full Bench of this Court in Jang Singh V/s. State of Punjab,3 after considering Mehal Singh and Balbir Singhs cases (supra) while dealing with the issue of converting consecutive sentences into concurrent opined as under: (See Cr.P., p. 368) "18. The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C. is that, a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Such direction to make the sentences to run concurrently, as per various decisions noted above, can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well. However, if the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Sections 482/427 Cr.P.C. The view taken by one set of the High Courts that such an application can be entertained while exercising inherent powers under Section 482 Cr.P.C. would no more appear to be a good law in view of the decision of the Hon ble Supreme Court in M.R. Kudva, 2007 (1) Criminal Court Cases 516 (S.C.) case. We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertaining appeal or revision but would not be so available to be exercised in isolation when application in this regard is moved either under Sections 482 or 427 Cr.P.C. What principle and consideration will govern the exercise of this discretion, as already noted above cannot be exhaustively enumerated. Certain relevant factors, as can be culled out from different judgments referred to above, may give an indication where such discretion may be exercised. These factors generally would be the nature or character of the offences committed, the prior criminal record of the offender, character his age and sex etc. ghastly nature of the crime. The offender being habitual would also be the factor, which can be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any Court dependent upon the facts and circumstances of each case on any relevant or valid consideration as may be considered so by the Court while holding the trial or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Cr.P.C as observed by Hon ble Supreme Court . is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion." 9. Once issue has already been settled authoritatively by a Full Bench of this Court opining that discretion to direct sentences to run concurrently lies only with the trial Court, the Appellate Court or the revisional Court and no petition for the same is maintainable under Sections 482 and 427 of the Code, no relief could possibly be granted to the petitioner in a petition, filed under Sections 482 and 427 of the Code. Accordingly, the present petition is dismissed.