Rajasthan High Court - Jodhpur
Hadiya @ Dalji vs State on 18 July, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
1 / 13
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 523 / 2015
Hadiya @ Dalji s/o Khoma b/c Aadiwasi, r/o Bhichawada
Thana Kalinjara, District Banswara (Presently lodged in
Central Jail, Udaipur)
----Petitioner
Versus
State of Rajasthan
----Respondent
_______________________________________________
For Petitioner(s) : Mr.K.R.Bhati, Amicus Curiae
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
_______________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 18/07/2017
1. The petitioner in this criminal misc. petition under Section 482 Cr.P.C. has been convicted in Sessions Case No.37/2006 and 38/2006 passed by learned Additional Sessions Judge (Fast Track), Banswara vide judgment dated 19.07.2006 and 31.07.2006 respectively.
2. In Sessions Case No.37/2006, the petitioner has been convicted for the offences under 366 and 376 IPC and sentenced to five years' rigorous imprisonment and a fine of Rs.10,000/- and in default of payment of fine, to further 2 / 13 undergo one year's imprisonment; and seven years' rigorous imprisonment and a fine of Rs.25,000/- and in default in payment of fine, to further undergo one year's imprisonment, respectively.
3. In Sessions Case No.38/2006, the petitioner has been convicted for the offences under Sections 420, 363, 366A and 368 IPC, and sentenced to three years' rigorous imprisonment and a fine of Rs.2,000/- and in default of payment of fine, to further undergo three months' rigorous imprisonment; three years' rigorous imprisonment and a fine of Rs.3,000/- and in default of payment of fine to further undergo six months rigorous imprisonment; five years' rigorous imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo one year's rigorous imprisonment; and three years' rigorous imprisonment and a fine of Rs.3,000/- and in default of payment of fine, to further undergo six months rigorous imprisonment, respectively.
4. Learned counsel for the petitioner has placed reliance on the precedent law laid down by a coordinate Bench of this Court in Ramesh Kumar Gupta Vs. The State of Rajasthan (S.B.Criminal Misc. Petition No.2224/2015 decided on 17.02.2017).
5. The coordinate Bench of this Court on 17.02.2017 has passed the following order in Ramesh 3 / 13 Kumar Gupta Vs. The State of Rajasthan (supra):-
" This criminal misc. petition under section 482 CrPC has been preferred on behalf of the petitioner with a prayer that the sentences awarded to him in 14 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.
Initially this misc. petition was preferred at Jaipur Bench of this Court, however, by judicial order dated 28.04.2015, it has been transferred to Principal Seat of this Court at Jodhpur.
A reference was made to the Division Bench of this Court to adjudicate the following question:
"WHETHER, the High Court exercising powers under Section 482 Cr.P.C., invoke Section 427 Cr.P.C. and order that sentences awarded in two different cases shall run concurrently."
The Division Bench of this Court in Arjun Ram vs. State of Rajasthan and Ors. (D.B.Criminal Misc. Petition No.1912/2013 along with three other miscellaneous petitions) reported in 2016(1) Cr.L.R. (Raj.) 346, answered the said reference in the following terms:
"As per Section 427 Code of Criminal Procedure, in normal course a person already undergoing a sentence of imprisonment, if sentenced on a 4 / 13 subsequent conviction to imprisonment, such imprisonment commence at the expiration of the imprisonment to which he has been previously sentenced, but the court in its discretion based on settled principles may direct that the subsequent sentence shall run concurrently with previous sentence. While exercising such discretion, the trial court, appellate court or revisional court, as the case may be, keeps in mind several factors. While examining such factors, the possibility of some error cannot be ruled out. Not only the error, but absolutely non-consideration of the issue about invoking this discretion, may also be there and that may cause great injustice. In general, it can be said that every provision of law is meant to impart justice and to ensure fair and objective treatment with every subject, but while doing so, the chances of causing injustice or failure in extending complete justice cannot be denied. To meet such an eventuality the inherent powers like Section 482 Code of Criminal Procedure are meant and those are always open to be invoked to prevent abuse of process of court and secure the ends of justice. The inherent jurisdiction is having a very large amplitude but should always be exercised cautiously and only to prevent miscarriage of justice. While keeping in mind that the inherent powers must be exercised sparingly, the court should not restrain itself to invoke the same if any injury is caused to the justice.
We are of considered opinion that to meet the ends of justice and to rectify the gross error the powers under Section 482 Code of Criminal Procedure can be exercised, if court arrives at a conclusion that the trial court, appellate court or 5 / 13 the revisional court, as the case may be, failed in completing the circuit of justice while invoking/not invoking the discretion vested with it as per Section 427 Code of Criminal Procedure.
The court while doing so must keep in mind all necessary ingredients and precedents which are to be taken into consideration to exercise the discretion as per Section 427 Code of Criminal Procedure. The reference made by learned Single Bench is answered accordingly. Let the Criminal Miscellaneous Petitions be listed before learned Single Bench for their adjudication on merits."
Now in view of the decision rendered by this Court in Arjun Ram vs. State of Rajasthan & Ors. (supra), this petition is considered for deciding on merits.
The facts necessary for disposal of the present misc. petition are that the petitioner was tried, convicted and sentenced by the different trial courts for the offence punishable under section 138 of the N.I. Act, details of which are being given hereunder:
S. No. Case No. Court Date Imprisonment & Fine Appeal 1385/2011 Addl. Metropolitan 05.11.2011 1 year Simple imprisonment and to pay a
1.
Magistrate No.12 , fine of Rs. 3,06,000/- . Jaipur 738/2009 Addl. Metropolitan 17.04.2012 1 year Simple imprisonment and to pay a
2. Magistrate No.8 , fine of Rs. 2,70,000/- . Jaipur 1151/2009 Metropolitan 05.09.2012 2 year Simple imprisonment and to pay a
3. Magistrate No.15, fine of Rs. 5,30,000/- . Jaipur 1107/2012 Addl. Metropolitan 25.09.2012 2 year Simple imprisonment and to pay a
4. Magistrate No.12 , fine of Rs. 2,61,000/-, in default of payment Jaipur of fine, further to undergo 3 months' SI 1106/2012 Addl. Metropolitan 25.09.2012 2 year Simple imprisonment and to pay a
5. Magistrate No.12 , fine of Rs. 2,63,500/-, in default of payment Jaipur of fine, further to undergo 3 months' S.I. 6 / 13 247/2010 Addl. Metropolitan 15.10.2012 1 year Simple imprisonment and to pay a
6. Magistrate No.3 , fine of Rs. 1,35,000/-, in default of payment Jaipur of fine, further to undergo 3 months' SI. 11/2010 Addl. Metropolitan 23.11.2012 1 year Simple imprisonment and to pay a
7. Magistrate No.3 , fine of Rs. 1,35,000/-. And, in default of fine Jaipur he will have to undergo S.I. of 3 months. 1228/2012 Metropolitan 26.04.2013 8 months Simple imprisonment and to pay a
8. Magistrate No.17, fine of Rs. 5,50,000/-, in default of payment Jaipur of fine, further to undergo 2 months' SI. 986/2009 Addl. Metropolitan 08.05.2013 1 Year and 3 months Simple imprisonment
9. Magistrate No.9, Jaipur and to pay a fine of Rs. 20,00,000/-, in default of payment of fine, further to undergo 4 months' SI.
32/2010 Metropolitan 15.05.2013 1 year Simple imprisonment and to pay a
10. Magistrate No.10 , fine of Rs. 7,50,000/-. Jaipur 848/2012 Addl. Metropolitan 11.07.2012 2 years' Simple imprisonment and to pay a
11. Magistrate No.12 , fine of Rs. 2,58,500/-, in default of payment Jaipur of fine, further to undergo 3 months' SI. 849/2012 Addl. Metropolitan 11.07.2012 2 year Simple imprisonment and to pay a
12. Magistrate No.12 , fine of Rs. 2,59,000/-. And, in default of Jaipur payment fine, further to undergo S.I. of 3 months.
05/2012 Addl. Metropolitan 09.07.2013 1 and a half year Simple imprisonment and
13. Magistrate No.14 , to pay a fine of Rs. 6,00,000/-. Jaipur 410/2011 Metropolitan 20.10.2011 6 months Simple imprisonment and to pay a
14. Magistrate No.32 , fine of Rs. 4,50,000/-. Jaipur As the sentences awarded to the petitioner are in 14 different cases, he 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.
It is contended that the petitioner had issued several cheques to the persons from whom he borrowed money and when those cheques were presented in the bank, the same could not be honoured, resulting in filing of the complaints against the petitioner and thereafter the conviction of him for the offence punishable under section 138 of the N.I.Act.
7 / 13It 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 more than 18 years and 11 months and in default of payment of fine in total about 24 months additional simple imprisonment has been awarded to the petitioner meaning thereby that the total sentences awarded to the petitioner come to about 20 years and 11 months.
It is also argued that the petitioner is behind the bars since 02.12.2011 and till January, 2017, he had served five years and one month's sentence out of total sentence of 18 years and 11 months. It is further argued that though the petitioner was awarded those sentences in different cases but all the cases are of similar nature. It is also averred that the maximum sentence in respect of present kind of offence is two years simple imprisonment and if all the sentences are allowed to run consecutively petitioner would remain behind the bars up to year 2030.
Learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court rendered in State of Punjab vs. Madan Lal, AIR 2009 SC (Supp) 2836, V.K.Bansal vs. State of Haryana & Ors., 2013 Cr.L.J. 3986, Shyam Pal vs. Dayawati Besoya & Anr., AIR 2016 SC 5021 and in Ammavasai & Anr. vs. Inspector of Police & Ors., AIR 2000 SC 3544.
Learned Public Prosecutor has opposed the prayer of the petitioner for concurrent running of all the sentences awarded to him in 14 different cases 8 / 13 by the trial courts for the offence punishable under section 138 of the N.I. Act and prayed for dismissal of this criminal misc. petition.
It is noticed that all the complaints against the petitioner for commission of offence punishable under section 138 of N.I.Act were filed during the period from 2009 to 2012. In all the complaints, similar nature of allegations levelled by the complainant are that the petitioner borrowed the money from them and gave cheques for repayment of the said money, however, on presentation of the said cheques in the bank, the same could not be realized for the reason that the account has been closed.
In all the 14 complaints filed against the petitioner, he has been convicted for the offence punishable under section 138 of the N.I. Act and different sentences have been awarded. The maximum sentence awarded to the petitioner is 2 years' simple imprisonment along with fine.
Section 427 CrPC 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:9 / 13
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 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 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 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.10 / 13
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 14 cases would run consecutively.
The substantive sentences awarded to the petitioner in all the 14 cases, if calculated jointly, is about 18 years and 11 months. As per the certificate dated 09.02.2016 (Exhibit-1) issued by Superintendent, Central Jail, Jaipur, the petitioner is in jail from 02.12.2011. As such till January 2017, the petitioner served 5 years and 1 month sentence.
Having considered the facts and circumstances of the present case, offence involved, sentences awarded, period of detention of the petitioner as on date and the law laid down by the Hon'ble Supreme Court in State of Punjab vs. Madan Lal, V.K.Bansal vs. State of Haryana & Ors., Shyam Pal vs. Dayawati Besoya & Anr. and Ammavasai & Anr. vs. Inspector of Police & Ors. (supra), I am of the considered view that it would not be inconsistent with the administration of criminal justice if the petitioner is allowed the benefit of discretion contained in section 427 of the Code to meet the ends of justice. However, as per the law laid down by the Hon'ble Supreme Court in V.K.Bansal vs. State of Haryana & Ors. and Shyam Pal vs. Dayawati Besoya & Anr. (supra), 11 / 13 the direction for concurrent running of sentences would be limited only to the substantive sentences alone.
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 14 cases would run concurrently, however, the petitioner will have to serve default sentences as the provisions of section 427 of the CrPC 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, he is not required to undergo default sentences. (sentences awarded by the trial courts in default of payment of fine/compensation)."
6. Learned counsel for the petitioner has argued that the sentence under Sessions Case No.37/2006, which was to the tune of seven years' imprisonment and the sentence lasted from 31.07.2006 to 22.02.2013 should be directed to run concurrently.
7. Learned Public Prosecutor has submitted before this Court the letter dated 20.02.2017 received by the 12 / 13 prosecution office from the Deputy Superintendent, Central Jail, Udaipur in respect of the present petitioner, which contains the following information in tabular form:-
11. द न क 20.02.2017 तक भगत सज क व रण :-
र् मह द न (अ) भगत सज 03 11 29 (ब) ह ल त समय 00 03 19 (स) योग 04 03 18 ( ) अरज्त पररह र 00 01 24 (य) र जजयय 00 00 00 सरक र क पररह र (र) आ. पै./अ. 00 00 00 जम नत (ल) कल योग 04 05 12 ( ) शेर सज 09 र् 06 म ह 18 द स मय जम ्न ए ज सज
8. In view of the aforequoted precedent law, the present misc. petition deserves to be allowed in part.
9. The present consideration is being made pertaining to the punishment inflicted under Sessions Case No.38/2006, whereby the sentence started running from 22.02.2013, on exhaustion of the earlier sentence of seven years, which began on 31.07.2006.
10. This Court thus deems it appropriate not to exercise its jurisdiction pertaining to the previous punishment inflicted under Sessions Case No.37/2006, for 13 / 13 which the petitioner remained in jail from 31.07.2006 to 22.02.2013.
11. Though in the present case, the total sentence for the offences under Sections 420, 363, 366A and 368 IPC is fourteen years, but as per the spirit of Section 427(1) Cr.P.C., the Court while exercising its jurisdiction allows the present misc. petition in part and the sentences imposed under Sessions Case No.38/2006 for the offences under Sections 420, 363, 366A and 368 IPC are allowed to run in concurrence with each other.
12. The sentences in Sessions Case No.37/2006 and 38/2006 being two separate heinous offences are not permitted to run concurrently.
13. Accordingly, the present misc. petition is partly allowed and it is ordered that the sentence under Sessions Case No.38/2006 wherein separate sentence has started on 22.02.2013 for the offences under Sections 420, 363, 366A and 368 IPC shall run concurrently. The sentences, which the petitioner has been directed to undergo in default of payment of fine shall not be effected by this direction and if the petitioner has not paid the fine as directed by the trial court, the said sentences would run consecutively. Needless to say, if the petitioner pays the fine now, he is not required to undergo default sentences. (sentences awarded by the trial court in default of payment of fine).
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-