Punjab-Haryana High Court
Surinder Singh vs State Of Haryana & Anr on 13 July, 2012
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM No.38778 of 2011 & Criminal Revision No.503 of 2011 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.38778 of 2011 and
Criminal Revision No.503 of 2011 (O&M)
Date of Decision:- 13.7.2012
Surinder Singh ....Petitioner
Versus
State of Haryana & Anr. ...Respondents
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Sanjiv Gupta, Advocate for the petitioner.
Mr.Partap Singh, Addl. AG Haryana for respondent No.1.
Mr.C.M.Munjal, Advocate for respondent No.2.
Mehinder Singh Sullar, J. (Oral)
Tersely, the facts, which need a necessary mention, for the limited purpose of deciding the instant main revision petition and emanating from the record, are that, two criminal complaints, i.e. bearing Nos.823-II of 2007 titled as "Rameshwar vs. Surinder Singh" and 596-II of 2007 titled as "M/s Hazari Ram Inderjit vs. Surinder Singh" were filed against the petitioner-accused, for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as "the NI Act").
2. Having completed all the codal formalities, the trial Magistrate convicted the petitioner-accused in both the complaints and sentenced him to undergo rigorous imprisonment for a period of one year, to pay a fine of ` 5000/- and in default of payment of fine, to further undergo simple imprisonment for a period of three months in each case u/s 138 of the NI Act, vide impugned judgments of conviction dated 15.9.2008 & 27.9.2008 and orders of sentence dated 16.9.2008 & 29.9.2008 respectively.
CRM No.38778 of 2011 & Criminal Revision No.503 of 2011 (O&M) -2-
3. Aggrieved by the judgments of conviction and orders of sentence, the appeals filed by the petitioner-accused were dismissed as well, by the appellate Court, by means of impugned judgments dated 9.2.2011.
4. The petitioner-accused still did not feel satisfied with the impugned judgments of conviction and orders of sentence and preferred 1st criminal revision petition, bearing No.503 of 2011 and 2nd revision petition, bearing No.579 of 2011, invoking the provisions of Section 401 Cr.PC. The 2nd CRR No.579 of 2011 has already been dismissed by a Coordinate Bench of this Court (Alok Singh, J.), by way of judgment dated 9.3.2011 (Annexure A1).
5. In the instant revision petition, the petitioner-accused has also moved a petition for converting both the sentences imposed on him in two different cases to run concurrently, invoking the provisions of Section 427 read with Section 482 Cr.PC.
6. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present main revision petition in this context.
7. As is evident from the record, that the trial Court as well as appellate Court, having analyzed the evidence on record, in the right perspective, recorded a concurrent finding of fact that the petitioner-accused is guilty for the commission of indicated offence. The learned counsel for petitioner-accused did not point out any ground/reason, muchless cogent, to interfere in the concurrent finding of the Courts below.
8. Meaning thereby both the Courts below have rightly convicted and sentenced the petitioner-accused, by virtue of impugned judgments of conviction and orders of sentence. Such impugned judgments/orders, containing valid reasons, cannot possibly be interfered with by this Court, while exercising the CRM No.38778 of 2011 & Criminal Revision No.503 of 2011 (O&M) -3- limited revisional jurisdiction under section 401 Cr.PC, unless and until, the same are illegal, perverse and without jurisdiction. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-accused.
9. There is another aspect of the matter, which can be viewed entirely from a different angle. As indicated here-in-above that the petitioner-accused was also convicted and sentenced in the same manner in the 2nd complaint, bearing No.596-II of 2007 under section 138 of the NI Act. It is not a matter of dispute that all the points/grounds, urged herein, have already been considered and negatived by a Coordinate Bench of this Court (Alok Singh, J.), while dismissing the connected CRR No.579 of 2011, by means of judgment dated 9.3.2011 (Annexure A1) under the same set of circumstances. Therefore, I see no reason to interfere in the impugned judgments of conviction and orders of sentence of the Courts below. Thus, the instant revision petition deserves to be dismissed.
10. Faced with the situation, the learned counsel for petitioner-accused intends to withdraw the main revision petition, which is hereby dismissed as withdrawn.
11. Be that as it may, now the next short & significant question, that arises for determination in the present revision petition is, as to whether the sentences imposed by the trial Court on the petitioner-accused in the aforesaid two criminal complaints can be converted, to run concurrently or not?
12. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the affirmative. The matter, as to whether such sentences can be converted, to run concurrently or not, is not res integra and is now well settled.
13. An identical question came to be decided by this Court in Mohan Lal v. State of Punjab and another 2011(7) RCR (Criminal) 2503. Having considered the provisions of Sections 427 Cr.PC and 138 of the NI Act, it was ruled as under
CRM No.38778 of 2011 & Criminal Revision No.503 of 2011 (O&M) -4- (paras 6 & 7) :-
"6. In the present case, admittedly the petitioner was convicted in two different complaints under Section 138 of the Negotiable Instruments Act and sentenced for a period of two years by the trial Court with fine of Rs.5000/- and in default of payment of fine to undergo further RI for two months. Appeal filed against judgment of the trial Court was dismissed by the learned Additional Sessions Judge, Nawanshahr and Crl.Revisions in both the cases were partly allowed by the High Court and sentence was reduced from two years RI to one year RI and sentence of fine remained the same. It is also an admitted fact that no such application for running the two sentences concurrently was made neither before the trial Court nor before the appellate Court or even in the High Court also. It would not be appropriate to go into the controversy whether it was fault of the lawyers appearing before the Courts or fault lies with the petitioner. This application has been filed after completion of first sentence. It is also mentioned in the petition that the petitioner is having three minor children and is facing the protracted criminal proceedings since the year 2003 and has also suffered mental agony and physical pain. Different views have been taken in different judgments. It would be appropriate to quote Section 427 Cr.P.C. 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 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." Although discretion has been left to the Court but that discretion is to be exercised by taking into consideration the different provisions which depend upon facts of each case, nature and character of the offence, criminal background of the case, his age, sex etc. All these provisions would be relevant while exercising the discretion in view of the provisions of Section 427 (1) Cr.P.C. Even in Full Bench judgment of this Court in Jang Singh v. State of Punjab 2008(1) R.C.R. (Criminal) 323 after CRM No.38778 of 2011 & Criminal Revision No.503 of 2011 (O&M) -5- discussing judgment of Hon'ble the Supreme Court in M.R.Kudva's case (supra), it has been held in para No. 18 of the judgment as under:
"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 case (supra). 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 principal and consideration will governs 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 CRM No.38778 of 2011 & Criminal Revision No.503 of 2011 (O&M) -6- 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."
7. In view of the law position and the facts of this case as discussed above, the present case is also of such nature where such discretion ought to be exercised as petitioner is facing the agony of protracted trial since the year 2003. He is having three minor children and having no criminal background and offence is also under Section 138 of the Negotiable Instrument Act and sentence in both the cases is one year. He has already completed sentence in one case and then application has been moved after conclusion of the proceedings and after exhausting all remedies but inadvertently the prayer for running the sentences concurrently was neither made before the trial Court nor before the appellate Court or even before the revisional Court."
14. The law enumerated in the aforesaid judgment "mutatis mutandis" is applicable to the facts of the present case and is the complete answer to the problem in hand.
15. In the light of aforesaid reasons, as there is no merit, therefore, the instant main revision petition is hereby dismissed as such. However, the sentences awarded by the trial Court to the petitioner-accused in both the criminal complaints/cases are directed to run concurrently, in the obtaining circumstances of the case.
13.7.2012 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No