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2018 DIGILAW 1179 (RAJ)

Pushpa Jindal v. State of Rajasthan

2018-05-05

VIJAY BISHNOI

body2018
ORDER : Vijay Bishnoi, J. This criminal misc. petition under section 482 CrPC, 1973 has been preferred on behalf of the petitioner with a prayer that the sentences awarded to her in 3 different cases for the offence punishable under section 138 of the Negotiable Instruments Act, details of which are being provided in later part of this order, may be ordered to run concurrently. 2. The facts necessary for disposal of the present misc. petition are that the petitioner was tried, convicted and sentenced by the trial court for the offences punishable under sections 138 of N.I. Act, details of which are given here under: S.No Case No. Court Date of decision Sentence default Appeal 1 443/2015 (1138/06) Reg. Criminal (sneh lata v. Pushpa Movies) Spcl. Judicial Magistrate (N.I. Act, cases) No. 1, Udaipur 02/12/15 Six month simple imprisonment & in default of payment two months simple imprisonment ADJ No. - 5, Udaipur Criminal Appeal No. 50/2015 CIS No. 1721/15 Decided on: 23.05.16 2 236/2012 (1030/11) Reg. Criminal (Ankur Sharma V. Pushpa) Spcl. Judicial Magistrate (N.I. Act, cases) No. 1, Udaipur 10/08/16 Six month simple imprisonment & fine of Rs. 8,80,000/- ADJ No. - 5, Udaipur Criminal Appeal No. 24/2016 CIS No. 273/16 Decided on: 20.12.16 3 Reg. Criminal No. 77/12 (Tushar Dave V. Pushpa Movies) Spcl. Judicial Magistrate (N.I. Act, cases) No. 1, Udaipur 22.2.14 One year simple imprisonment & fine of Rs. 8,00,000/- against one cheque. One year simple imprisonment & fine of rs. 8,00,000 against another cheque. ADJ No. - 5, Udaipur Criminal Appeal No. 44/2015 CIS No. 1409/15 Decided on: 14.12.16 Both sentences were run separately 3. As the sentences awarded to the petitioner are in 3 different cases, she is being made to suffer sentences one after another (consecutively), therefore, the present petition has been preferred by the petitioner with a prayer that a direction needs to be issued that the petitioner's sentences should run concurrently. 4. It is argued that going by the sentence calculation, which has been awarded to the petitioner would effectively mean that the total length of sentences in aggregate would be around 2 years. 5. It is also argued that the petitioner is behind the bars since 23.05.2016 and till 26.04.2018, she served 1 year, 11 months and 3 days out of total sentence of 2 years awarded in three different cases. 5. It is also argued that the petitioner is behind the bars since 23.05.2016 and till 26.04.2018, she served 1 year, 11 months and 3 days out of total sentence of 2 years awarded in three different cases. It is further argued that though the petitioner was awarded those sentences in different cases but all the cases are of similar nature. 6. Learned counsel for the petitioner has placed reliance on decision of this Court dated 17.02.2017 rendered in Rajender v. State of Rajasthan, S.B.Cr.Misc. (Pet.) No.2883/2014. 7. Learned Public Prosecutor has opposed the prayer of the petitioner for concurrent running of all the sentences awarded to her in 3 different cases by the trial court for the offences punishable under sections 138 of N.I. Act and prayed for dismissal of these criminal misc. petitions. 8. Learned Public Prosecutor has placed reliance on decision of Division Bench of this Court rendered in Shimbhu Singh v. State of Rajasthan, reported in (2016) 1 CriLR 467 and argued that as per the said decision passed by the Division Bench, a petition under section 482 CrPC, 1973 filed by the petitioner with a prayer for ordering that the sentences awarded in different cases be directed to run concurrently, is liable to be dismissed. 9. Heard learned counsel for the parties. This Court in Rajender v. State of Rajasthan (supra) has held as under: "section 427 CrPC, 1973 is relevant in the context, which reads as under:- "427. Sentence on offender already sentenced for another offence. - (1) 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: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence." As per sub-section (1) of section 427 CrPC, 1973 when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment 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: As per second proviso to sub-section (1) of section 427 CrPC, 1973 where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. Sub-section (2) of section 427 CrPC, 1973 provides that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. From the above, it can be gathered that the intention of legislature is that even the life convicts have been held entitled to benefit of subsequent sentence, being run concurrently, be it life term or of any lesser term then the different yardstick cannot be applied for those persons, who have been awarded sentence of lesser duration than life unless there are compelling reasons to do so. In this case, I do not see any compelling reason to order that all the sentences awarded to the petitioner in all cases would run consecutively." 10. In all the 3 cases filed against the petitioner, she has been convicted for the offence punishable under section 138 of the N.I. Act and has been sentenced as aforesaid. The maximum sentence awarded to the petitioner is 1 year's simple imprisonment along with fine. 11. The substantive sentences awarded to the petitioner in all the 3 cases, if calculated jointly, is about 2 years. As per information supplied by the Deputy Superintendent, Central Jail, Udaipur dated 26.04.2018 to G.A. Office, the petitioner is in jail since 23.05.2016 and has not been released for any period either on parole or interim bail. 11. The substantive sentences awarded to the petitioner in all the 3 cases, if calculated jointly, is about 2 years. As per information supplied by the Deputy Superintendent, Central Jail, Udaipur dated 26.04.2018 to G.A. Office, the petitioner is in jail since 23.05.2016 and has not been released for any period either on parole or interim bail. As such till 26.04.2018, she served 1 year, 11 months and 3 days sentence. 12. Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and in view of the decision of this Court rendered in Rajender v. State of Rajasthan (supra), I am of the considered view that ends of justice would be met if the petitioner is granted benefit of section 427 of the CrPC, 1973 and in my opinion, it would not be inconsistent with the administration of criminal justice. 13. In Shimbhu Singh v. State of Rajasthan (supra), a petition under section 482 CrPC, 1973 was filed after the decision of the High Court in the criminal appeal and, therefore, the Division Bench has held that after final decision in the appeal, the petition under section 482 CrPC, 1973 with a prayer for issuing directions to run different sentences concurrently is not maintainable as this Court has become functus officio. However, in the present case, a criminal revision petition filed by the petitioner against the judgment of appellate court is pending consideration before this Court and has not yet been decided, and in respect of two other cases, no appeal or revision is filed by the petitioner before this Court. Hence, it cannot be said that this Court has become functus officio. As such the above referred judgment has no applicability. 14. In such circumstances, the present misc. petition is allowed and it is ordered that the substantive sentences awarded to the petitioner in the above referred 3 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC, 1973 do not permit a direction for concurrent running of substantive sentences with the sentences awarded in default of payment of fine/compensation. The sentences, which the petitioner has been directed to undergo in default of payment of fine/compensation shall not be effected by this direction and if the petitioner has not paid the fine/compensation as directed by the trial courts, the said sentences would run consecutively. Needless to say, if the petitioner pays the fine/compensation now, she is not required to undergo default sentences (sentences awarded by the trial courts in default of payment of fine/compensation). A copy of this order be placed in S.B.Cr. Revision Petition No.594/2016.