Punjab-Haryana High Court
Budh Ram vs State Of Punjab And Another on 1 October, 2012
Author: Daya Chaudhary
Bench: Daya Chaudhary
Crl. Revision No.1293 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(i) Crl. Revision No.1293 of 2012
Date of Decision: 01.10.2012
Budh Ram ....Petitioner
Versus
State of Punjab and another ....Respondents
(ii) Crl. Revision No.1318 of 2012
Budh Ram ....Petitioner
Versus
State of Punjab and another ....Respondents
BEFORE :- HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. S.P.S. Sandhu, Advocate
for the petitioner.
Mr. Gaurav Garg Dhuriwala, D.A.G., Punjab
for the respondent-State.
Mr. Sunil Chadha, Advocate
for respondent No.2.
*****
DAYA CHAUDHARY, J.
Two Criminal Revisions bearing Nos.1293 of 2012 and 1318 of 2012 shall stand disposed of by passing a common Order as the petitioner, in both the revision petitions, is same. However, for the sake of convenience, the facts are being taken from Criminal Revision No.1293 of 2012.
Petitioner-Budh Ram was convicted in two cases for an offence under Section 138 of the Negotiable Instruments Act. A complaint was made by respondent No.2-complainant and the petitioner faced trial. Crl. Revision No.1293 of 2012 2 He was convicted/sentenced by Judicial Magistrate Ist Class, Ludhiana vide judgment dated 01.10.2010. Subsequently, the said judgment of conviction/sentence was challenged by way of filing appeal which was also dismissed and the judgment of trial Court was upheld vide Order dated 27.04.2012 passed by the Additional Sessions judge, Ludhiana. The petitioner has filed two Criminal Revision Nos. 1293 of 2012 and 1318 of 2012 to challenge the judgment passed by the Appellate Court in both the complaints.
Notice of motion in this case was issued. Learned counsel for the petitioner raised certain arguments on merits of the case but the Court was not convinced after hearing the arguments raised by both sides. A request has been made by learned counsel for the petitioner to the effect that the sentences awarded in both cases may be permitted to run concurrently as the petitioner is same in both the petitions and the offence is also same i.e under Section 138 of the Negotiable Instruments Act.
Learned counsel for the petitioner has also relied upon the judgment of Full Bench of this Court in the case of Jang Singh v. State of Punjab 2008(1) RCR (Criminal) 323 as well as the judgment of Hon'ble the Apex Court in the case State of Punjab v Madan Lal 2009(2) R.C.R. (Criminal) 602, in support of his contention. He submits that the Court has power to issue direction to make the sentences to run concurrently during the trial, at the appellate stage as well as at the revisional stage. Learned counsel also submits that although two different complainants are there but the petitioner and the nature of offence are same. He has also argued that the petitioner is not a habitual offender as no other case is pending against him. Learned counsel further submits that the petitioner was convicted in both the cases on same date and because of fault of the lawyer, who was representative of the petitioner, he should not be punished as neither the Crl. Revision No.1293 of 2012 3 request was made at the time of passing of judgment of the trial Court nor at the time of passing of judgment by the Appellate Court. The prayer is being made at the time of disposal of revision petitions.
Learned counsel for respondent No.2-complainant, on the other side, opposes the submissions made by learned counsel for the petitioner on the ground that although the petitioner is same but the complainants are different and it cannot be said that it is a case between the same parties.
Learned counsel for respondent No.2-complainant relies upon the judgment of Madhya Pradesh High Court in the case Ku. Rekha Mishra v State of Madhya Pradesh 2012(1) RCR (Civil) 792.
I have heard the arguments of learned counsel for the parties and have also perused the judgments of both the Courts below as well as other documents on the file. Admittedly, both the revision petitions have been filed by the petitioner against the judgments dated 01.10.2010 passed by the Judicial Magistrate Ist Class, Ludhiana for offence under Section 138 of the Negotiable Instruments Act. The petitioner has lost before both the Courts below and has approached before this Court by way of filing two revision petitions and when the Court was not convinced on the merits of the case, a request for running the sentences concurrently has been made in view of Section 427 of the Cr.P.C.
Section 427 of the Cr.P.C regulates the mode of execution of sentence in those cases where the offender is already undergoing a sentence for another offence. The same 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 Crl. Revision No.1293 of 2012 4 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."
The general principle in the case of conviction is that the sentence should take effect immediately on conviction and the same cannot be postponed. However, sub-section (1) of Section 427 Cr.P.C provides that a person who is already undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to imprisonment or imprisonment for life, then such imprisonment or imprisonment for life is to commence at the expiration of the imprisonment, to which he had been previously sentenced. This principle, however, is subjected to an exception as is clear from the words "unless the Court directs that subsequent sentence shall run concurrently with such previous sentence" Meaning thereby, in case, a person is already undergoing sentence then subsequent imprisonment is to commence only on the expiration of the previous sentence, unless both sentences are ordered to run concurrently.
Section 31 of the Cr.P.C also enacts the rules that sentences are to run consecutively unless the Court directs it to run concurrently.
The basic rule is called as single transaction rule for Crl. Revision No.1293 of 2012 5 concurrent sentences. This view has been discussed at length in the judgment of Full Bench of this Court in Jang Singh's case (supra) in para 18 which is reproduced as under :-
"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 Criminal Procedure Code, 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 sentence 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 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 Criminal Procedure Code. The view taken by one set of the High Courts that such an application can be entertained while exercising inherent powers under Section 482 Criminal Procedure Code would no more appear to be a good law in view of the decision of the Hon'ble Supreme Court in M.R. Kudva case (supra). We are, thus,bound to take this view that this discretion through available with the trial Court, appellate Court or the revisional court while holding trial or Crl. Revision No.1293 of 2012 6 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 Criminal Procedure Code. What principle and consideration will govern the exercise of this discretion, as already noted above can not 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 reason 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 Criminal Procedure Code 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."
It is clear from the ratio of above said judgment that this power to order to run the sentences concurrently can be exercised by the trial court or by the Appellate Court or by the Revisional Court and accordingly, the prayer can be accepted at any stage. Although, in view of the decision of Hon'ble the Supreme Court in the case of M.R. Kudva v. State of Andhra Pradesh 2007(1) RCR (Criminal) 868, it has been held that it is a judicial discretion available to the trial Court, Appellate Court or the Revisional Court while holding trial or entertaining appeal or revision, however, it should not be exercised in isolation but certain factors should Crl. Revision No.1293 of 2012 7 be considered while exercising this judicial discretion, like nature or character of the offences committed, the prior criminal record of the offender, character, age and sex of the offender/accused etc. It is also mentioned that discretion is open to be exercised by any Court dependent upon the facts and circumstances of each case. Accordingly, while exercising judicial discretion by the Courts, the facts and circumstances of each case is to be seen.
In the present case, the petitioner is not a habitual offender as no other case of similar nature is pending against him and he is having no criminal background as stated by learned counsel for the petitioner and the same has also not been disputed by learned counsel for respondent No.2- complainant. Moreover, the judgments in both the cases were passed on same dates by the trial Court as well as by the Appellate Court and the revision petitions have been filed to challenge the judgments of both the Courts below. To make prayer at the time of hearing of revision petitions is not bar as held in various judgments i.e the judgment of Full Bench of this Court in Jang Singh's case (supra) and other judgments of Hon'ble the Supreme Court as referred to here-in-above.
In view of the submissions made by learned counsel for the parties and the facts as mentioned above, both the revision petitions bearing Nos.1293 of 2012 and 1318 of 2012 are dismissed except to allow to run both the sentences concurrently.
Disposed of accordingly.
(DAYA CHAUDHARY) 01.10.2012 JUDGE gurpreet