Punjab-Haryana High Court
Nathu Ram Bansal And Anr. vs State Of Haryana And Anr. on 30 May, 1996
Equivalent citations: 1997CRILJ1413
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
ORDER V.S. Aggarwal, J.
1. This is petition filed by Nathu Ram Bansal and Shyam Sunder Goyal under Section 482 of the Code of Criminal Procedure read with Section 427 of the said Code for a direction to the District and Sessions Judge/Additional District & Sessions Judge, Bhiwani and also to Superintendent, Jail, Bhiwani to consider the sentence awarded to the petitioners in two complaints to run concurrently.
2. The relevant facts for disposal of the present petition are that respondent Radhey Shyam Aira filed a criminal complaint. He pleaded that he is the Honorary Secretary of Dadri Education Society which runs certain colleges and schools. Petitioner No. 1 is Journalist and is the owner, Editor and Publisher of weekly newspaper titled 'Janta Ke Vichar'. The newspaper used to be printed by Mahashakti Printers. Shyam Sunder Bansal petitioner is the proprietor of the same. In the issue of 8-3-1985 published by Nathu Ram Bansal petitioner it was mentioned "Radhey Shyam Airon alias Satish Dwara Kar Chori wa Hera Pheri Joron Per". The complainant was alleged to be the most hated person. It was mentioned that complainant-respondent No. 2 was head of a gang of thieves. He had contended that respondent No. 2 is running no business and he is an employee of Cement Corporation of India. The news item was published by Nathu Ram Bansal petitioner to defame the respondent No. 2 - complainant and to lower down the image, prestige and reputation of respondent No. 2 in the eyes of citizens and relatives with malafide intentions. The complaint was filed with respect to offences punishable under Sections 500/501, I.P.C. and Sections 3 and 12 of the Press and Registration of Book Act, 1867.
3. The learned Judicial Magistrate on 7-11-1988 held the petitioners guilty of the offences punishable under Sections 500 of the Indian Penal Code and 501 of the said Code respectively. They were sentenced to undergo simple imprisonment for three months and a fine of Rs. 1,000/-. In default of payment of fine, they were to undergo further simple imprisonment for three months. The petitioners preferred an appeal with the Court of Sessions. On 18-3-1994 the learned Additional Sessions Judge dismissed the appeal. It is not being disputed that their revision petition filed in this Court was dismissed. The petitioners did not succeed even when they filed the Special Leave Petition in the Supreme Court.
4. Another complaint had been filed by respondent No. 2 for another alleged news item published by petitioner No. 1 and printed by petitioner No. 2 for the same offences but published on 8-9-1984. Therein also the petitioners were convicted. Similar sentence as mentioned above was imposed. The appeal/revisions and finally the Special Leave Petition failed.
5. The petitioners' claim is that complaints were decided by the same trial Court and heard by the same Additional Sessions Judge. Both the Courts failed to pass an order with regard to the sentence awarded in the complaints referred to above. The grievance of the petitioners is that the Courts should have directed that sentences should be run concurrently and not consecutively. This fact was ignored by them and it was prayed that sentences imposed in separate complaints filed by respondent No. 2 should be directed to run concurrently.
6. The petitioner has been contested. Respondent No. 1 in it's reply pointed that petitioners have suppressed from this Court that their Special Leave Petition had been dismissed. It was denied that sentences should have been directed to run concurrently. The plea was also raised that Section 427 of the Code of Criminal Procedure is not attracted because none of the petitioners was undergoing sentence.
7. In face of the above facts, the short question that arises for consideration is as to whether this Court should exercise it's inherent powers under Section 482 of the Code of Criminal Procedure and direct the sentence to run concurrently and secondly if in the facts of the case, there is justification for directing the sentences to run concurrently.
8. This question came up for consideration in the case of Rajinder Singh v. State of Haryana, (1991) 1 Rec Cri 590. This Court in paragraph 3 of the cited case held as under :-
"3. This Court, in exercise of its inherent jurisdiction under Section 482 of the Code deems it to be fit to rectify this glaring defect. There substantive sentences of imprisonment in both the said cases can be directed to run concurrently, even if the order of conviction and sentence had become final. Such discretion cannot in any way be fettered by Section 427(1) of the Code. I am fortified in my view by Full Bench decision of Madhya Pradesh High Court in Sher Singh v. State of M.P., (1989) 1 Rec Cri R 696 ; (1989 Cri LJ 632)."
The same question was considered by the Full Bench of Madhya Pradesh High Court in the case of Sher Singh v. State of M.P., (1989) 1 All Cri LR 1090 : (1989 Cri LJ 632). The ratio decided of the decision was that the High Court can use the inherent powers if the trial or appellate Court has not exercised the same under Section 427(1) of the Code of Criminal Procedure. In paragraph 5, it was held as under:-
"5. The consensus of Judicial opinion of different High Courts seems to be that inherent powers of the High Court can be invoked under Section 482 even if the trial Courts or the appellate or revisional Court has not exercised its discretion under Section 427(1) of the Code. The inherent powers of the High Court is not in any way fettered by the provisions of Section 427(1) and it can be invoked at any stage even if there is no such order passed under Section 427(1) by the trial Court or appellate or revisional Court and even though the conviction has become final."
There is no dispute with the said proposition but, the Court would be circumspect in exercising such like powers. Thus, there is no bar for the High Court to exercise inherent powers and in appropriate cases where interest of justice so requires, the Court can direct the sentences to run concurrently.
9. In this regard reference can well be made to the provisions of the Code of Criminal Procedure. Sections 31 and 427 of the Code of Criminal Procedure reads :-
"31. Sentence in cases of conviction of several offences at one trial. - (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on' conviction of a single offence, to send the offender for trial before a higher Court:
Provided that -
(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence."
...
"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, 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."
It is obvious from aforesaid that scope of both. the provisions are separate; Section 31 would come into play when a person is convicted at one trial Of two or more offences, while Section 427, Cr.P.C. permits the Court to direct that if a person is already undergoing the sentence and is again convicted, the sentence has to run consecutively unless otherwise directed. However, such power has to be utilized sparingly.
10. Learned counsel for the petitioners had drawn the attention towards the decision rendered by this Court in the case of Sukhdev Raj v. State of Punjab, (1996) 1 Rec Cri R 366. In the facts of that case it was held that sentence should run concurrently. The petitioner therein was awarded sentence Under Section 5 of the T.A.D.A. Act and Section 25 of the Indian Arms Act, Further a warrant was received for the offence punishable under the Opium Act to undergo rigorous imprisonment for 3 years for the subsequent offence. There was no entry if the sentence has to run concurrently. In the fact it was concluded that sentences should run concurrently. It is obvious from perusal of the facts that the ratio decidendi of the case of Sukhdev Raj (supra) is confined to the peculiar facts. It was not held that in each and every case, the sentence must run concurrently when a person is convicted afresh of another offence.
11. Reference in this regard can well be made to the decision of the Supreme Court in the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs, AIR 1988 SC 2143 : (1989 Cri LJ 283). The scope of Section 427(1) of the Code of Criminal Procedure came up for consideration. It was held (para 9):-
"The section relates to administration of criminal justice and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive."
Subsequently, certain guidelines were provided that enormity of crime is relevant for measuring the sentence. The Court has to consider the totality of sentences and decide if they should run concurrently or consecutively. It was observed (para 17):-
"It is no doubt true that the enormity of the crime committed by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. The totality principle has been accepted as correct principle for guidance. In R.V. Edward Charles French (1982) Crl App R (S) p. 1 (at 6)), Lord Lane, C.J., observed:
"We would emphasize that in the end, whether the sentences are made consecutive or concurrent the sentencing Judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case."
12. In other words, the Court has to see the totality of facts, the gravity of offences and all surrounding circumstances before the passing of the order if the sentence has to run concurrently or consecutively. In the present case, the petitioners are alleged to have defamed respondent No. 2 and the article was published. It followed by another article a few months thereafter. Again the petitioners were held guilty. The Court passed the sentences and thought it appropriate not to make a reference that they should run concurrently. This gives the inkling that they should not run concurrently. Besides that and irrespective of the aforesaid, the nature of the offence cannot be ignored. Having written and published one article for which they were held guilty, they repeated the similar offence. There is no ground, thus, that the sentences should run concurrently. The petition, therefore, patently is without any merit.
13. For these reasons, the petition being without merit fails and is dismissed.