Krishna Veni Vs the State of Karnataka

KRISHNA VENI D/O SRINIVASMURTHI, (W/O CHIDANAND ANANT RAO), AGE: 60 YEARS, OCC: TEACHER IN PRIVATE SCHOOL, ST.PETER’S SCHOOL, SANGAREDDY IN ANDRA PRADESH, R/O. H.NO.4-7-25/7/1/4, BALAJI NAGAR, SANGAREDDY, MEDAK, ANDHRA PRADESH-502 001.

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Digitally signed …PETITIONER by SUMITRA SHERIGAR Location: HIGH (BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE) COURT OF KARNATAKA AND: THE STATE OF KARNATAKA, BY THANAKUSHNOOR POLICE STATION, BIDAR-585 401, (REPTD. BY ADSPP HC KLB-585107). …RESPONDENT (BY SRI JAMADAR SHAHABUDDIN, HCGP)

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THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 OF CR.P.C (OLD) U/SEC 438 OF BNSS, PRAYING TO SET ASIDE THE JUDGMENT IN CRL.APPEAL NO.90/2006, ON THE FILE OF ADDL. DIST. AND SESSIONS JUDGE, BIDAR AND THE JUDGMENT OF CONVICTION AND ORDER OF SENTENCE DATED 18.06.2011 AND JUDGMENT DATED 10.11.2006 AND ORDER OF SENTENCE DATED 13.11.2006 PASSED IN C.C NO.405/2004 BY JMFC COURT, AURAD-B; CONSEQUENTLY ACQUIT THE A-3/PETITIONER FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 420, 465, 468, 471 R/W SEC 34 OF IPC; IN ALTERNATIVE THE ORDER OF SUBSTANTIAL SENTENCE OF IMPRISONMENT AWARDED BY THE TRAIL COURT ON THREE COUNTS SEPARATELY BE ORDERED TO RUN CONCURRENTLY.

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THIS PETITION COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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(PER: HON'BLE MR. JUSTICE V SRISHANANDA)

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Heard learned counsel for the revision petitioner and

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learned High Court Government Pleader for the respondent.

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Revision petition is filed by accused No.3, who suffered an order of conviction in C.C.No.405/2005, which was confirmed in Criminal Appeal No.90/2006 for the offences punishable under Sections 420, 465, 468 and 471

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read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’).

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Operative portion of the order of the learned Trial Magistrate reads as under:

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“The offenders are sentenced to undergo simple Imprisonment for a term of 02 months and to pay fine of Rs.500/- each for the offence punishable u/sec 465 г/w Sес.34 of IPC. In default to pay the said fine, they shall further undergo simple imprisonment for term of 01 month each.

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The offenders are further sentenced to undergo simple imprisonment for a term of 06 months and shall pay fine of Rs.1,500/- each for the offence punishable u/sec 468 г/w Sec.34 of IPC. In default to pay the said fine, they shall further undergo simple imprisonment for a term of 02 months each.

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Further, the offenders are sentenced to undergo simple imprisonment for a period of 06 months and shall pay fine of Rs.1,500/- each for the offence punishable u/sec 471 r/w Sec.34 of

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IPC. In default to pay the said fine, they shall further undergo simple imprisonment for a term of 02 months each

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And the offenders are further sentenced to undergo simple imprisonment for a term of 06 months and shall pay fine of Rs.1,500/- each for the offence punishable u/sec 420 r/w Sec.34 of IPC. In default to pay said fine, they shall further undergo simple Imprisonment of 02 months each.

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The offender no.2 Malshetty was in judicial custody from 22-4-2006 to 27-4-2006. The said period of detention shall be setoff against the substantive sentences of imprisonment.

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The bail bonds and surety bonds of the offenders shall stand cancelled.

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The Ex.p-5 to 8 and Ex-p-14 shall be returned to the complainant (pw-1) and Ex.p-21 to 25 shall be returned to the pw-14 after the expiry of appeal period.

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Furnish the copy of this judgment to the offenders free of costs forthwith.”

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Being aggrieved by the judgment of conviction

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and order of sentence, accused No.3 preferred an appeal before the District Court in Criminal Appeal No.90/2006. The learned Judge in the First Appellate Court after securing the records, heard the arguments in detail and dismissed the appeal.

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Being further aggrieved by the same, accused No.3 has preferred the present revision petition.

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Sri Kadloor Satyanarayanacharya, learned counsel for the petitioner reiterating the grounds urged in the revision petition, vehemently contended that the Courts below have grossly erred in convicting the accused/petitioner and improperly sentenced and thus, revision petition needs to be allowed.

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Per contra, learned High Court Government

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Pleader supports the impugned judgments.

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After hearing the arguments of the parties at

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length, Sri Kadloor Satyanaranacharya, learned counsel for the revision petitioner would fairly submit before the Court that on merits with regard to the proved offences and having regard to the limited revisional scope, petitioner may not have much to submit in regard to conviction of revision petitioner. But on the question of sentence, this Court has to clarify whether the sentences for all the offences should run concurrently or consecutively as the order of sentence has not mentioned anything specifically.

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In this regard, learned counsel for the petitioner would invite the attention of this Court to the judgment of the Hon’ble Apex Court in the case of Sunil Kumar @ Sudhir Kumar and Another vs. State of Uttar Pradesh reported in 2021 INSC 298 [Criminal Appeal No.526/2021, disposed of on 25.05.2021]. The relevant portions of the said judgment is culled out hereunder for ready reference:

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“10. The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) CrPC. The contours of these provisions have been succinctly delineated and explained by this Court in the case of O.M. Cherian (supra) in the following terms: -

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“20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.

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Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run

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concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain and Section 31 CrPC.”

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10.1. In Muthuramalingam (supra), the basic question before the Constitution Bench was as to whether consecutive life sentences could be awarded to a convict on being found guilty of a series of murders, for which, he had been tried in a single trial. In the course of determination of this question, the Constitution Bench dealt with several dimensions of sentencing, particularly those relating to multiple sentences and observed, inter alia, that,-

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“23……So interpreted Section 31(1) CrPC must mean that sentences awarded by the court for several offences committed by the prisoner shall run consecutively (unless the court directs otherwise) except where

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such sentences include imprisonment for life which can and must run concurrently….”

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10.2. Thus, it is beyond a shadow of doubt that Section 31(1) CrPC vests complete discretion with the Court to order the sentences for two or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but, it is also not laid down that multiple sentences must run concurrently. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the Court may direct.

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For what has been provided in Section 31(1) CrPC read with the expositions of this Court, it follows that the Court of first instance is under legal obligation while awarding multiple

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sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao (supra), this Court expounded on this legal obligation upon the Court of first instance in the following terms:-

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“11. The expressions “concurrently” and “consecutively” mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under IPC or/and of an offence punishable under any other Special Act arising out of one trial or more. It is for the reason that award of former enure to the benefit of the accused whereas award of latter is detrimental to the accused’s interest. It is therefore, legally obligatory upon the court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentences awarded to the accused would run “concurrently” or they would run “consecutively”.”

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As noticed, if the Court of first instance does not specify the concurrent running of sentences, the inference, primarily, is that the Court intended such sentences to run consecutively, though, as aforesaid, the Court of first instance ought not to leave this matter for

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deduction at the later stage. Moreover, if the Court of first instance is intending consecutive running of sentences, there is yet another obligation on it to state the order (i.e., the sequence) in which they are to be executed. The disturbing part of the matter herein is that not only the Trial Court omitted to state the requisite specifications, even the High Court missed out such flaws in the order of the Trial Court.

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We have taken note of the observations of the Constitution Bench in Muthuramalingam (supra), which were made in the context of a previous decision of this Court, where the eventuality of consecutive running of life sentences was obviated with reference to the proviso to sub-section (2) of Section 31. The Constitution Bench though endorsed the view that consecutive life sentences cannot be awarded but observed that the proviso to subsection (2) of Section 31 CrPC cannot be relied upon to support this conclusion and also observed that sub-section (2) of Section 31 CrPC has no application to a case tried by the Court of Sessions nor sub-section (2) forbids a direction

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for consecutive running of sentences awardable by the Court of Sessions.

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17.1. Even when sub-section (2) of Section 31 CrPC is not directly applicable, some of the relevant features of the present case are that the offences in question were committed in the year 2008 i.e, before amendment of IPC by the Amending Act 13 of 2013; the appellants have continuously served about 13 years and 2 months of imprisonment; and nothing adverse in regard to their conduct while serving the sentences has been placed on record. In the given set of circumstances, we have pondered over the question as to what ought to be the order for a just balance on the requirements of punishment on one hand and reasonable release period for the appellants on the other, while keeping in view the overall scheme of awarding of punishments and execution thereof, including the ancillary aspects referable to Sections 433 and 433A CrPC as also Section 55 IPC whereunder, serving of a term of 14 years even in the sentence of imprisonment for life is the bottom line (subject to the exercise of powers of commuting by the appropriate Government in

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accordance with other applicable principles). After anxious consideration of all the relevant factors, we are of the view that the requirements of complete justice to the cause before us could adequately be met by providing that the maximum period of imprisonment to be served by the appellants shall be 14 years and not beyond.

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While closing on the matter, we deem it appropriate to reiterate what was expounded in the case of Nagaraja Rao (supra), that it is legally obligatory upon the Court of first instance, while awarding multiple punishments of imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. It needs hardly an emphasis that any omission to carry out this obligation by the Court of first instance causes unnecessary and avoidable prejudice to the parties, be it the accused or be it the prosecution.”

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Per contra, learned High Court Government Pleader while supporting the impugned judgments would contend that whenever the learned Trial Magistrate does

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not specifically mention that the sentences should run concurrently, it should be presumed that sentences should run consecutively and therefore, the contentions urged on behalf of the revision petitioner cannot be countenanced in law and sought for dismissal of the revision petition.

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Having heard the arguments of both sides, this Court perused the material on record meticulously. On such perusal of the material on record, the ingredients of Sections 420, 465, 468, 471 read with Section 34 of IPC stand established against the revision petitioner by placing cogent and convincing evidence on record resulting in conviction of the revision petitioner and other accused.

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Learned Judge in the First Appellate Court even after re-appreciation of the material on record did not find any deficiencies in the prosecution evidence so as to annul the finding of conviction. Therefore, confirmation of the conviction of the revision petitioner is thus just and proper. However, having regard to the scope of the

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revision petition, following the dictum of the Hon’ble Apex Court in the case of Amit Kapoor vs. Ramesh Chander and Another reported in (2012) 9 SCC 460, this Court has to find out whether the sentence ordered by the learned Trial Magistrate confirmed by the First Appellate Court is appropriate in the facts and circumstances of the case.

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In the case on hand, as referred to supra, the order of sentence passed by the learned Trial Magistrate is silent with regard to the running of the sentence either concurrently or consecutively. In this regard, Section 71 of IPC and Section 31 of the Code of Criminal Procedure needs to be looked into. For ready reference, those provisions are culled out hereunder:

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“71 of IPC. Limit of punishment of offence made up of several offences. - Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the

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punishment of more than one of such his offences, unless it be so expressly provided.

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[Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or

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where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence,

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the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.]”

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31 of Cr.P.C. Sentence in cases of conviction of several offences at one trial.-

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(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 therefor which such Court is competent to inflict; such punishments when

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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.

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(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:

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Provided that –

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(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

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(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence.

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(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under

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this section shall be deemed to be a single sentence.”

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On careful reading of the above provisions, in the light of the principles of law enunciated by the Hon’ble Apex Court in the case of Sunil Kumar referred to supra, it is exclusive discretion of the Court to order for sentence either run consecutively or concurrently. Needless emphasize that if the convicting Court is of the opinion that the sentence has to run consecutively, proper reasons must be supplied while passing the order of sentence.

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In the case on hand, in the first place, the learned Trial Magistrate has not assigned any reasons whatsoever for running the sentences consecutively. The order on sentence is dated 13.11.2006, wherein, the learned Trial Magistrate is of the opinion that the offenders have not only created forged, false and fake documents, but also caused monetary loss to the Government and it is nothing but an antisocial offence. Assuming that such a finding has been recorded with necessary material on

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record, why the learned Trial Magistrate is intending to grant an order of consecutive sentence is not forthcoming on record.

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It is settled principles of law and requires no emphasis that every judgment must be supported by proper reasoning, inasmuch as, reasoning is the heartbeat of the judgment. When such reasons are tried to be culled out from the order on sentence dated 13.11.2006, no reason is forthcoming to infer that the learned Trial Magistrate was of the opinion that the sentences should run consecutively.

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It is settled principles of law that when the learned Trial Magistrate does not mention that the sentences should run concurrently and leaves open without expressing about the running of the sentence either consecutively or concurrently, it should normally be construed that sentences should run consecutively as is

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rightly argued by the learned High Court Government Pleader.

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In the case on hand, since there is no mention explicitly as to running of the sentence by the learned Trial Magistrate, which has not been adverted to by the learned Judge in the First Appellate Court, which was the bounden duty of the First Appellate Court, need has arisen for this Court to consider whether the facts and circumstances of the case on hand in respect of the proved offenses would warrant ordering of the sentences to run consecutively.

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With that limited extent, this Court perused the material on record including the monetary loss that is said to have been occurred to the Government on account of the act attributable to the revision petitioner and other accused, which has been repatriated by the accused persons, especially the present revision petitioner, this Court is of the considered opinion that in the facts and

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circumstances of the case, the sentence of imprisonment

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for the proved offences need not run consecutively.

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Accordingly, this Court is of the considered opinion that the revision petitioner has made out a case for modification of the sentence ordered by the learned Trial Magistrate confirmed by the First Appellate Court to the extent of the sentence of imprisonment to run consecutively or concurrently. Hence, following:

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ORDER

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a) Revision petition is allowed in part.

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b) While maintaining the order of conviction of

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the revision petitioner for the offences punishable under Sections 420, 465, 468, 471 read with Section 34 of IPC, the sentence of imprisonment ordered by the learned Trial Magistrate confirmed by the First Appellate Court is hereby modified to run concurrently.

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