Criminal Misc. No. M 21204 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M 21204 of 2009 (O&M) Date of decision: 31-3-2010 Sunil .........Petitioner Vs State of Haryana and another .........Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present: Shri H.P.S. Aulakh, Advocate, for the petitioner Shri Amit Goyal, Assistant Advocate General, Haryana HARBANS LAL, J. This petition has been moved by Sunil under Section 482 of Cr.P.C.(for brevity the Code) seeking his premature release by making sentences to run concurrently under Section 427(1) of the Code. The facts in brief are that the petitioner was convicted and sentenced to undergo 5 years rigorous imprisonment and to pay a fine of Rs.3000/- and in default of payment of fine to further undergo simple imprisonment for a period of 6 months in case F.I.R. No. 108 dated 1.7.2003 under Sections 148/412/307/149 of IPC and 25(IB) of the Arms Act of Police Station Sadar, Sonepat by the learned Additional Sessions Judge, Sonepat on 8.6.2005. He has already been released on 6.2.2008 after completion of 5 years rigorous imprisonment by giving the benefit of undertrial period and earned remissions during the conviction period. He was convicted and sentenced to undergo 10 years rigorous imprisonment Criminal Misc. No. M 21204 of 2009 (O&M) 2 and to pay a fine of Rs.5000/- and in default of payment of fine to undergo simple imprisonment for 5 months in F.I.R. No. 103 dated 1.7.2003 under Sections 395/397/506 of IPC Police Station Murthal, District Sonepat by the court of Additional Sessions Judge, Sonepat on 15.2.2007. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The learned counsel for the petitioner has submitted that under Section 427(i) the sentences could be directed to run concurrently. Even otherwise as per the provisions of Section 427(1)(2) of the code subsequent conviction and sentence have to be run concurrently with the earlier sentence and conviction. To buttress this stance, he has sought to place abundant reliance upon the observations rendered by the Apex Court in State of Punjab Vs. Madan Lal 2009(2)Recent Criminal Reports (Criminal) 602. To tide over these submissions, the learned State counsel maintained that in F.I.R. No. 108 dated 1.7.2003 the petitioner has already been released on 6.2.2008 after completion of 5 years rigorous imprisonment by giving the benefit of undertrial period and earned remissions during the conviction period. However, sentence of 6 months imprisonment awarded in default of payment of fine of Rs.3000/- will be started after completion of sentence awarded in other F.I.R. No. 103 dated 1.7.2003. He further puts that the petitioner may not have been given the benefit of the provisions of Section 427(1)(2) of the code as he has already been released on 6.2.2008 in case F.I.R. No. 108 of 1.7.2003 after completion of sentence. Criminal Misc. No. M 21204 of 2009 (O&M) 3 I have well considered the rival contentions. Section 427 of the Code reads as under:- “427. Sentence on offender already sentenced for another offence:-(1) When a person already undergoing a sentence 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 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, subsequent sentence shall run concurrently with such previous sentence.” In M.R.Kudva Vs. State of Andhra Pradesh 2007(1) Recent Criminal Reports (Criminal) 868 separate trial of the accused was held in two different offences. The provisions of Section 427 of the Code were not invoked in the trial Court, nor in appellate Court. Thereafter an application under Section 482 and 427 of the Code was filed before the High Court for Criminal Misc. No. M 21204 of 2009 (O&M) 4 concurrent running of sentences. The Supreme Court held that Section 482 is not appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgment of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted. In Madan Lal's case(supra) the accused had issued three cheques in favour of the complainant. All the cheques were dishonoured. The accused was convicted in all the three complaints filed under Section 138 of the Negotiable of Instruments Act, 1881 by the learned Trial Court. The High Court had ordered the sentences to run concurrently in all the three cases. It was in these circumstances that the order of the High Court was upheld by the Supreme Court. As a matter of fact Mr. H.P.S.Aulakh, Advocate, appearing on behalf of the petitioner has relied upon the observations rendered by the Apex Court in paragraph 4 of the judgment delivered in the case of Madan Lal(supra) which read as under:- “4.In the impugned judgment of the High Court, reference was made to the decision of this Court in Mohd. Akthar alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmadabad and Others (AIR 1988 SC 2143) wherein it was held as under:- The basic rule of thumb over the years has been the so called transactions rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if Criminal Misc. No. M 21204 of 2009 (O&M) 5 the transaction relating to offence is shot the same or the facts constituting the two offences are quite different.” It has been manifested in the language of the afore extracted paragraph that this rule has no application if the transaction relating to offence is shot the same or the facts constituting the two offences are quite different. Adverting to the instant one concededly in F.I.R. No. 108 dated 1.7.2003 the petitioner has been convicted and sentenced under Section 307 IPC etc. whereas in F.I.R. No. 103 dated 1.7.2003 he has been convicted and sentenced under Section 395/397 IPC etc. Thus obviously the facts of both F.I.Rs constitute different offences. That being so, the petitioner cannot derive any mileage from the observations rendered in Madan Lal's case(supra). In Jang Singh Vs. State of Punjab 2008(1) Recent Criminal Reports(Criminal) 323 the Full Bench of this Court has held that “Discretion to make sentences to run consecutively or concurrently would be governed by different considerations, like facts of each case, nature and character of the offences, criminal history sheet and record of the offender, his age, sex. Each case is to be decided depending upon its facts. Nature and gravity of the offences would certainly be a releavant factor and so too the record of the offender including his age, sex. etc. 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. Direction to make the sentences to Criminal Misc. No. M 21204 of 2009 (O&M) 6 run concurrently 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. It may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Section 482 and 427 of Cr.P.C.” In the case in hand, neither the trial Court nor the appellate Court exercised the powers under Section 427 of the Code. It is apt to be borne in mind that this petition has been moved under Section 482 of Cr.P.C. whereas in M.R.Kudva's case it has been laid down that Section 482 of Cr.P.C. is not an appropriate remedy. The provisions of Section 427(2) of Cr.P.C. come into play, when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to an imprisonment for a term or imprisonment for life. Needless to say in the instant one, it is not the case of the petitioner that he was sentenced to life imprisonment in either F.I.R. The provisions of Section 427(2) are hardly attracted to the petitioner's case. Section 427(1) of Cr.P.C lays down that if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, or imprisonment of 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 the present one, the Court which passed the sentence in both the F.I.Rs did not direct that the subsequent sentence shall run concurrently with such previous sentence. Thus, to my mind, the petitioner cannot derive any benefit from the provisions of Section 427(1) of the Code. On viewing the matter in the background of afore-quoted law, it Criminal Misc. No. M 21204 of 2009 (O&M) 7 comes out that the sentences awarded in both the cases cannot be made to run concurrently. Sequelly, this petition is dismissed. Since the appeal has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of. (HARBANS LAL) JUDGE March 31, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No