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2013 DIGILAW 875 (HP)

Jimee. v. State of H. P

2013-10-04

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J.: An interesting question that the sentences imposed upon the accused in different cases and decided vide different judgments should be allowed to run concurrently or can legally be ordered to run consecutively, needs consideration of this Court in the present petition. 2. The petitioner, a convict, initially was booked by the police of Police Station, Barotiwala under Section 379 of Indian Penal Code vide FIR No.215 of 2006, registered on 18.11.2006 and subsequently, by the police of Police Station, Sarkaghat, District Mandi under Sections 302 and 392 read with Section 34 of Indian Penal Code vide FIR No.320 of 2008, registered on 9.12.2008. 3. In the second case registered against him under Sections 302 and 392 of Indian Penal Code, learned Presiding Officer, Fast Track Court, Mandi vide judgment dated 3.6.2011, Annexure P-3 in Sessions Trial No.23 of 2009 has convicted him under Sections 392 and 304-II of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ‘5,000/- under Section 392 of Indian Penal Code and rigorous imprisonment for five years and a fine of ‘5,000/- under Section 304-II of Indian Penal Code. The sentences so awarded against him have been ordered to run concurrently. 4. In the case under Section 379 of Indian Penal Code, registered against him in Police Station, Barotiwala, learned Judicial Magistrate 1st Class, Court No.2, Nalagarh, District Solan vide judgment dated 26.9.2011 (Annexure P-1) in Criminal case No.39/II of 2009/2007 convicted him and sentenced to undergo rigorous imprisonment for one year and to pay ‘500/- as fine, after noticing the factum of he having been convicted by learned Presiding Officer, Fast Track Court, Mandi under Sections 392 and 304-II of Indian Penal Code to undergo rigorous imprisonment for five years and serving out the sentences so awarded against him, brought to its notice by learned defence counsel. 5. Significantly, the judgment of conviction, Annexure P-1, supra, under Section 379 of Indian Penal Code though appealed by the petitioner-convict in Sessions Court at Solan, however, affirmed by learned Additional Sessions Judge, Solan vide judgment dated 17.3.2012 in Criminal Appeal No.5-NL/10 of 2011, Annexure P-2. 5. Significantly, the judgment of conviction, Annexure P-1, supra, under Section 379 of Indian Penal Code though appealed by the petitioner-convict in Sessions Court at Solan, however, affirmed by learned Additional Sessions Judge, Solan vide judgment dated 17.3.2012 in Criminal Appeal No.5-NL/10 of 2011, Annexure P-2. No ground to allow the subsequent sentence of one year to run concurrently with earlier sentence of five years, seems to have been urged before learned appellate Court as the judgment, Annexure P-2 does not contain any such discussion or findings. 6. The grounds urged in this petition to allow the sentence passed subsequently under Section 379 of Indian Penal Code concurrently, in a nutshell, are that both cases though registered vide two different F.I.Rs. and on two different occasions and at two different places, however, the nature of the offence for which he was booked is similar in nature being theft and also robbery/murder and that no prejudice will be caused to any one in case the sentences awarded against him in these cases are ordered to run concurrently. It has further been urged that the petitioner- convict is 26 years of age and unmarried and also that his parents are totally dependent upon him. Therefore, in the event of the sentences are not ordered to run concurrently and he had to undergo sentence of one year awarded under Section 379 of Indian Penal Code after serving out the sentence of five years under Sections 392 and 304-II of Indian Penal Code, no fruitful purpose would be served thereby except for resulting in undue hardships to him besides being not in the interest of justice. 7.Let us first take note of the provisions of Section 427 of the Code of Criminal Procedure, which read as follows: “The bare perusal of the provisions, ibid demonstrates that the same fixes time from which a sentence passed on an offender who is already undergoing another sentence should run. An order to run the sentences concurrently in one single transaction is the Rule, whereas, to allow the sentences to run concurrently in different transactions is an exception, which Section 427 of the Code of Criminal Procedure creates and postpones the subsequent sentence till the expiry of the previous sentence. An order to run the sentences concurrently in one single transaction is the Rule, whereas, to allow the sentences to run concurrently in different transactions is an exception, which Section 427 of the Code of Criminal Procedure creates and postpones the subsequent sentence till the expiry of the previous sentence. No doubt, under Section 427, Cr.P.C. the Court is vested with the power to order the sentences awarded against an offender subsequently to run concurrently, however, such power is discretionary and can only be exercised sparingly in appropriate cases having regard to the given facts and circumstances. The direction issued in casual manner to run the sentences concurrently goes against the express statutory provisions under Section 427 of the Code of Criminal Procedure and, therefore, the exercise of discretion in a casual manner is not legally justified. In the absence of any specific order that the sentence imposed upon an offender subsequently will run concurrently or consecutively, the presumption would be that the previous and subsequent sentences have to run consecutively. It is rule that the subsequent sentence shall start to run after the expiry of first sentence of imprisonment. As noticed supra, such general rule, no doubt, can be changed by an order of the Court and the Court may order the sentence awarded against an offender in a subsequent trial to run concurrently with the sentence awarded against him in the previous trial. The exercise of such discretion, however, depends upon the facts of each case. In a case where the complainant is the same person and the transactions though different and distinct resulted in registration of different cases against the convict, however, similar in nature, can be said to be an appropriate case where discretion to order the sentence to run concurrently irrespective of awarded in different cases, registered on different occasions against the offender, can be exercised by the Court”. 8.The case in hand is a case of two different transactions/occurrences having taken place at two different places and on different occasions and even under different circumstances; first incident is of 16/17.10.2006 when motor cycle bearing registration No.HP-21A-1406 of PW-8 Ravinder Kumar (complainant) was stolen by the accused from Chakki road, Baddi, which he had parked on 16.10.2006 there outside his room, whereas, the second incident pertains to murder of one Tara Devi of village Talaw, Tehsil Sarkaghat, District Mandi during the night intervening 8/9.12.2008 in order to commit theft of jewelry and other valuable articles from the house of the deceased. Therefore, first incident pertains to theft, whereas, the second that of murder and robbery/dacoity. The present, therefore, is a case of two different transactions, however, not having identical or similar characteristics and rather quite distinct and different. While the first transaction pertains to theft of motor-cycle, the second qua murder of one Tara Devi committed intentionally to take away jewelry and other valuable articles from her house. The victims/complainants in these transactions are different persons. The place and time are also separate and distinct. The cases registered in respect of both the transactions have also been decided by different courts and vide different judgments. Therefore, in the considered opinion of this Court, the present is not a fit case warranting order to run the sentences concurrently. 9.Interestingly enough, at the time of the subsequent sentence under Section 379 of Indian Penal Code, learned defence counsel has only made a reference to the previous conviction and sentence awarded against the petitioner-convict for the commission of an offence under Sections 392 and 304-II of Indian Penal Code and seems to have not sought an order to run the sentence so imposed concurrently with the one imposed against the petitioner-convict by learned Presiding Officer, Fast Track Court, Mandi previously. On the other hand, the benefit of set-off under Section 428 of the Code of Criminal Procedure is also declined by learned trial Magistrate on the ground that his confinement in jail was in respect to his previous conviction, while sentencing the accused under Section 379 of Indian Penal Code. On the other hand, the benefit of set-off under Section 428 of the Code of Criminal Procedure is also declined by learned trial Magistrate on the ground that his confinement in jail was in respect to his previous conviction, while sentencing the accused under Section 379 of Indian Penal Code. The intention of the Court, which has convicted and sentenced the petitioner-convict subsequently, therefore, is that the sentence so awarded shall run consecutively, i.e. on expiration of the previous sentence of five years rigorous imprisonment awarded against him by learned Presiding Officer, Fast Track Court, Mandi. Even the sentence so passed against him has been affirmed by learned appellate Court vide judgment Annexure P-2. As a matter of fact, this point was not urged before the appellate Court. Had it been urged before it, the appellate Court being competent could have considered the same and passed appropriate order. Therefore, the present being a case of two different transactions relating to commission of offences not same and similar and rather the facts constituting two offences are different, imposition of consecutive sentences would serve the ends of justice. The sentences to run concurrently should only be ordered in a case of single transaction irrespective of relating to more than one offence and more than one enactment, but would be misplaced sympathy in a case of this nature. 10.Learned counsel appearing on behalf of the petitioner has placed reliance on the judgment of Apex Court in State of Punjab Versus Madan Lal, (2009) 5 SCC 238 in order to persuade this Court to take a view that the present is a case warranting the sentences awarded in two cases to run concurrently, however, unsuccessfully for the reason that the law laid down in this judgment is not attracted in the given facts and circumstances of this case and, as such, is distinguishable on facts, because that was a case where the complainant was same and all the three transactions relate to the same family of the respondent pertaining to issuance of different cheques by the respondent to the complainant parties, leading in registration of different complaints under Section 138 of Negotiable Instruments Act. The facts of this case, however, are different and distinct to the one which were in the case before the Hon’ble Apex Court. The facts of this case, however, are different and distinct to the one which were in the case before the Hon’ble Apex Court. 11.Similarly, the judgment of the Apex Court in Ramesh Chilwal alias Bambayya Versus State of Uttrakhand, (2012) 11 SCC 629 is also not applicable in this case for the reason that though being a case of single transaction, resulted in registration of two separate cases; one under Section 302 of Indian Penal Code read with Sections 2/3[3(1)], Gangsters Act and the other under Section 27 of the Arms Act. Since in the case registered under Section 302 IPC, the sentence of life imprisonment was awarded against the convict, therefore, the Apex Court keeping in view the provisions contained under Section 31 of the Code of Criminal Procedure while maintaining the order to run the sentences concurrently in both cases has observed that in view of the sentence of life imprisonment awarded by the trial Court under Section 302 of Indian Penal Code, therefore, all sentences imposed under IPC, the Gangsters Act and the Arms Act are to run concurrently. The present, however, is not a case of awarding of sentence of life imprisonment warranting the sentence passed against the petitioner subsequently to run concurrently. 12.On the other hand, a Division Bench of this Court in its judgment rendered in Cr.M.P. No.785 of 2012 titled Sushil Kumar alias Shashi Versus State of Himachal Pradesh on 21st May, 2013 while discussing the scope of Section 427 of the Code of Criminal Procedure and also the law laid down by the Apex Court, has held as follows:- “14. In the instant case, petitioner Sushil Kumar was convicted for two offences in separate trials for attempted murder on a person and murdering another person at two different times. Both these transactions were different in time and separate and were also not interconnected with each other. Therefore, we are of the opinion that this Court cannot interfere with the sentences passed in two separate cases, triad and decided separately under its inherent jurisdiction, therefore, the petition is dismissed.” 13.For the foregoing reasons, there is no substance in this petition and the same is accordingly dismissed.The petition stands disposed of. Pending applications, if any, shall also stand disposed of.