Allowed

Mohar Singh v. State of Hp

Himachal Pradesh HC9 Jul 2024CRMMO/135/2024

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 CrPC directing that the petitioner's substantive sentence for a cheque dishonour case, which commenced on 6.1.2024, should run concurrently with other sentences already ordered to run concurrently by a coordinate bench. The court clarified that this directive applies only to the substantive sentence, excluding default terms for fine.

What did the court decide?

Decision that the substantive sentence in Comp. NI Act No. 545-III/18/15 shall run concurrently with other sentences in Sr. Nos. 7 to 21, excluding default sentences for fine payment.

Mohar Singh Vs State of Hp — Cheque Dishonour | Himachal Pradesh HC (2024)

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2024:HHC:5974

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CrMMO No. 135 of 2024 Decided on: July 9, 2024

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____________ Mohar Singh State of Himachal Pradesh ____________	Versus ****	………..Petitioner ….Respondent ****

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Coram:

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Hon’ble Mr. Justice Sandeep Sharma, Judge.

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Whether approved for reporting?¹ No.

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For the Petitioner	: Mr. Jagan	Nath,	Advocate.
For the Respondent	: Mr. Rajan	Kahol	, Mr. Vishal Panwar
	and Mr.	B.C.	Verma, Additional
	Advocates	Gener	al.
_________________________ Sandeep Sharma, Judge	_______________ (oral):	_____	__________________

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Petitioner-Mohar Singh has approached this Court by way of

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instant petition filed under S.482 CrPC, with a prayer that the sentences awarded vide Annexure P-2 be ordered to run concurrently with other sentences mentioned in Annexure P-4.

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Vide warrant of commitment of sentence of imprisonment dated 29.12.2022 (Annexure P-2), Superintendent, District Jail, Mandi has been asked to receive the petitioner for execution of sentence awarded by learned Additional Chief Judicial Magistrate, Court No.1, Mandi, Himachal Pradesh vide judgment of conviction and order of sentence dated 29.12.2022 in Comp. NI Act No. 545-III/18/15. However, it transpires from the documents adduced on record that the petitioner is undergoing sentence in the aforesaid case with effect from 6.1.2024.

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Brief facts of the case are that the petitioner has been sentenced in 21 other cases under S.138 of the Negotiable Instruments Act and since he is 77 years of age and already undergone three years

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1 Whether the reporters of the local papers may be allowed to see the judgment?

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imprisonment, he filed CrMMO No. 113 of 2023 before this Court, with the prayer that the sentences in all the 21 cases be ordered to be run concurrently. The aforesaid petition was allowed by a co-ordinate Bench of this Court on 2.11.2023, whereby it was ordered that the sentences awarded in cases at Sr. Nos. 7 to 21 shall run concurrently.

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Since, the petitioner was again convicted and sentenced vide judgment dated 29.12.2022 by the court of learned Additional Chief Judicial Magistrate, Court No.1, Mandi, Himachal Pradesh in Comp. NI Act No. 545-III/18/15 and sentence awarded in this case could not be included in 21 cases, mentioned in CrMMO No. 113 of 2023, petitioner has approached this Court, praying therein to issue a direction that sentence awarded in this case be also ordered to run concurrently alongwith 21 other cases, as ordered in CrMMO No. 113 of 2023.

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As per, custody certificate issued by the Deputy Superintendent Jail, Mandi, the petitioner has undergone 03 years 01 months and 01 day sentence and 11 years, 06 months and 09 day’s sentence remains to be undergone by the petitioner.

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As per reply filed by the respondent-State, as on 29.5.2024, the petitioner has undergone total sentence of 04 year, 05 months and 27 days, excluding the remission/parole period. As per custody certificate Annexure R-1, the petitioner, sentence in cases mentioned at Sr. Nos. 1 to 6 has been executed and in cases mentioned at Sr. Nos. 7 to 21, sentence is running concurrently and in case mentioned at Sr. No. 22, petitioner is undergoing sentence with effect from 6.1.2024, which is the case involved in the present petition.

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In reply, the respondent-State has admitted the factum of sentences having been awarded by learned Courts in 22 cases and also the fact that at present the petitioner is undergoing sentence in case mentioned at Sr. No.22. Respondent-State has further stated that it is only an executing agency, which executes sentence based on conviction warrants issued by the courts of law.

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With a view to substantiate the prayer made on behalf of the petitioner, learned counsel for the petitioner invited attention of this Court to judgment passed by Hon'ble Apex Court in State of Punjab v. Madan Lal , (2009) 5 SCC 238, V.K. Bansal v. State of Haryana and another , (2013) 7 SCC 211, Anil Kumar v. . State of Punjab , (2017) 5 SCC 53, Nagaraja Rao v. Central Bureau of Investigation , (2015) 4 SCC 302 and Benson v. State of Kerala , (2016) 10 SCC 307.

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Reliance has also been placed by learned counsel for the petitioner on Iqram v. The State of Uttar Pradesh & Ors. , Cr. Appeal No. 2319 of 2022, relevant paragraphs whereof read as under:

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“7 The Division Bench of the High Court has come to the conclusion that in view of the provisions of Section 427 of the Code of Criminal Procedure 1973 2, each subsequent term of conviction has to commence at the expiration of the imprisonment currently being undergone by the appellant.

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8 The net consequence of the position, as it emerges, is that the appellant would have to undergo a total term of imprisonment of 18 years in respect of the nine convictions for offences under Section 136 of the Electricity Act and cognate provisions.

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9 The plea bargain was with reference to the provisions of Chapter XXI-A of the CrPC. Section 265-G stipulates that the judgment delivered by the Court shall be final and no appeal (except a Special Leave Petition under Article 136 and a Writ Petition

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under Articles 226 and 227 of the Constitution) shall lie in any court against such a judgment.

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10 Section 427 provides that 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. In other words, sub-section (1) of Section 427 confers a discretion on the court to direct that the subsequent sentence following a conviction shall run concurrently with the previous sentence.

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11 In Mohd Zahid Vs State through NCB , this Court interpreted the provisions of 2 “CrPC” 3 2021 SCC OnLine SC 1183 Section 427 of CrPC after duly considering the precedents in the following terms :

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“33. Thus from the aforesaid decisions of this Court, the principles of law that emerge are as under:

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(i) if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;

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(ii) ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence;

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(iii) the general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 Cr.P.C.;

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(iv) under Section 427(1) of Cr.PC the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.” 12 The Trial judge, in the present case, granted a set off within the ambit of Section 428/Section 31 CrPC. No specific direction was issued by the trial court within the ambit of Section 427(1) so as to allow the subsequent sentences to run concurrently. All the convictions took place on the same day.

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13 Once the petitioner espoused the remedy of moving a Writ Petition under Article 226 of the Constitution, the High Court ought to have noticed the serious miscarriage of justice which would occur consequent upon the trial court not having exercised specifically its discretion within the ambit of Section 427(1).

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When the appellant moved the High Court, he was aggrieved by the conduct of the jail authorities in construing the direction of the trial court to mean that each of the sentences would run consecutively at the end of the term of previous sentence and conviction. The High Court ought to have intervened in the exercise of its jurisdiction by setting right the miscarriage of justice which would occur in the above manner, leaving the appellant to remain incarcerated for a period of 18 years in respect of his conviction and sentence in the nine sessions trials for offences essentially under the Electricity Act.

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14 In view of the above discussion, we allow the appeal and set aside the impugned judgment of the High Court dated 24 March 2022. We order and direct that the sentences which have been imposed on the appellant in the nine sessions trials noticed in the earlier part of this judgment shall run concurrently.”

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15 The jail authorities shall now act immediately on the production of a certified copy of this order.”

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Reliance is also placed on judgment rendered by Hon'ble Apex Court in V.K. Bansal (supra), wherein it has been held that power under S.427(1) CrPC shall be exercised judiciously and not mechanically. Relevant paras of aforesaid judgment read as under:

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“16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor.”

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11. Similarly, Hon'ble Apex Court in Anil Kumar (supra) has elaborately discussed the provisions of S.427 CrPC, as under:

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“4. The power conferred on the Court under Section 427 Cr.P.C. to order concurrent sentence is discretionary. Section 427 Cr.P.C. reads as under:-

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“S.427. Sentence on offender already sentenced for another offence.-

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(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:

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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.

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(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.”

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In terms of sub-section (1) of Section 427, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion be exercised by the Court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case.

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In V.K. Bansa l v. State of Haryana and Anr . (2013) 7 SCC 211, it was held by this Court as under:

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“It is manifest from Section 427 (1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises.” This Court then went on to club various crimes in respect of which sentences were imposed upon the appellant therein in three groups.

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After referring to V.K. Bansal’s case, in Benson v. State of Kerala (2016) 10 SCC 307: 2016 (9) SCALE 670, this Court directed the substantive sentences imposed on the appellant Benson to run concurrently. The appellant therein was convicted for the offences punishable under Section 379 and Section 414 read with Section 34 IPC in at least eleven cases. By a separate judgment, the appellant was convicted and sentenced in each of the aforesaid cases and total length of sentences in aggregate was around nineteen years.”

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Keeping in view the age of the petitioner and considering the fact that he is undergoing sentence in various cases coupled with the fact that Co-ordinate Bench of this Court in CrMMO No. 113 of 2023, has already ordered the sentences to run concurrently in cases mentioned at Sr. Nos. 7 to 21, this Court is of the view that ends of justice would be met, if the substantive sentence awarded by judgment dated 29.12.2022 by the court of learned Additional Chief Judicial Magistrate, Court No.1, Mandi, Himachal Pradesh in Comp. NI Act No. 545-III/18/15 i.e. 8 months simple imprisonment, which is already running since 6.1.2024, to run concurrently alongwith other cases.

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Having taken note of aforesaid law laid down by Hon'ble Apex Court coupled with the fact that the petitioner is 77 years of age and is behind the bars for the last more than four years, this court is of the view that ends of justice would be met, if the substantive sentence awarded vide judgment of conviction and order of sentence dated 29.12.2022 in Comp. NI Act No. 545-III/18/15 is also ordered to run concurrently with sentences being undergone by the petitioner in cases at Sr. Nos. 7 to 21 in Annexure P-4, as already ordered by Co-ordinate Bench of this Court in CrMMO No. 113 of 2023. Ordered accordingly. 14. However, it is clarified that in view of judgment of Hon'ble Apex Court in Vicky @ Vikas v. State (Govt. of NCT of Delhi) 2020 (3) Scale 40, the benefit of concurrent running of sentence(s) is granted to the petitioner only with regard to substantive sentence and not the sentence, which has been awarded for default in payment of fine, meaning thereby, substantive sentence ordered by learned trial Court in the present case shall run concurrently but after completion of the same, petitioner herein shall have to undergo sentence awarded upon him in default of payment of fine, if the same has not been deposited.

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With the aforesaid observations present petition is allowed. All pending applications stand disposed of.

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(Sandeep Sharma)

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Judge

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July 9, 2024 (vikrant)

Mohar Singh v. State of Hp

Case brief

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Mohar Singh v. State of Hp

Case brief

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