Criminal Revision No. 268 of 1995 1 In the High Court of Punjab and Haryana, at Chandigarh. 1. Criminal Revision No. 268 of 1995 Date of Decision: 25.02.2008 Gian Chand …Petitioner Versus State of Punjab …Respondent 2. Criminal Revision No. 269 of 1995 Gian Chand …Petitioner Versus State of Punjab …Respondent 3. Criminal Revision No. 270 of 1995 Gian Chand …Petitioner Versus State of Punjab …Respondent 4. Criminal Revision No. 271 of 1995 Gian Chand …Petitioner Versus State of Punjab …Respondent Criminal Revision No. 268 of 1995 2 AND 5. Criminal Revision No. 272 of 1995 Gian Chand …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. D.R. Mahajan, Senior Advocate with Mr. V.K.Mahajan, Advocate for the petitioner (In all the petitions) Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State Kanwaljit Singh Ahluwalia, J. (Oral) By the common judgment, five Criminal Revision Petitions bearing Nos. 268, 269, 270, 271 and 272 of 1995 will be decided. These five revision petitions has been preferred by Gian Chand son of Des Raj. All these five revisions have resulted from the prosecution of petitioner Gian Chand in case FIR No. 69 dated 9.3.1985, registered at Police Station Dhanaula under Sections 409, 468, 471 IPC. The FIR was lodged on the basis of a letter No. 309 desptached by Madan Mohan, Senior Medical Officer, Primary Health Center, Dhanaula, on 24.1.1985. Due to different duration of period of embezzlement from above FIR, five separate challans were submitted. Before I advert to the facts of the case, as the periods of Criminal Revision No. 268 of 1995 3 embezzlement were segregated. One revision petition pertains to the charge that on 12.11.1983, 3.12.1983 and 28.2.1984, being public servant, petitioner was entrusted with Rs.4,635.57 ps., Rs.7,213.65 ps. and Rs.5,902.35 ps. and had embezzled the same (challan No.1). In the second revision, charge is that on 21.11.1984 and 10.12.1984, the petitioner in his capacity as public servant was entrusted with a sum of Rs.2,392/- and Rs.3,128/- and had embezzled the same (challan No.2). In the third revision, charge was that petitioner on 13.6.1984, 23.6.1984 and 10.8.1984 as a public servant was entrusted with Rs.12,058.80 ps., Rs.2,110.80 ps. and Rs.1,162/- and had embezzled the same (challan No.3). In the fourth revision, charge was that petitioner being a public servant on 10.9.1984, 20.10.1984 and 6.11.1984 was entrusted Rs.6,565.20 ps., Rs.10,387.25 ps. and Rs.4,245.60 ps. and had embezzled the same (challan No.4). In the fifth revision, charge was that the petitioner as public servant was entrusted on 9.11.1984, 13.11.1984 and 20.11.1985, Rs. 2,151.50 ps, Rs.3,950.25 ps., and Rs.1,035/- and had embezzled the same (challan No.5) . The petitioner during the period of above said embezzlement had remained posted as Clerk-cum-Cashier at Primary Health Center, Dhanaula. Official witnesses have stated that cash and vouchers were entrusted to the petitioner. It was also stated by the witnesses that the petitioner was collecting fee etc. and the amounts, were received from the Dispensaries, Sub Centers and the Rural Hospitals, which were Criminal Revision No. 268 of 1995 4 within the jurisdiction of Primary Health Center, Dhanaula. The amounts so received was to be deposited by the petitioner in the bank account maintained at the State Bank of Patiala. It is stated that from Assistant Treasury Officer, personal verification of various challans was got conducted. Challans bore square seal of bank but no amount was deposited by these challans in the bank and there was a forged seal of the bank. The witnesses examined in the one FIR, which was segregated into five separate trials are almost same. In all the five cases, similar pleas have been raised on behalf of the prosecution and defence. Two Courts below after appreciating the evidence, have upheld the conviction of the petitioner. The petitioner was sentenced under Section 409 IPC to undergo two years rigorous imprisonment and a fine of Rs.100/-. In default of payment of fine, to further undergo rigorous imprisonment for three months. He was also sentenced under Section 468 IPC to undergo rigorous imprisonment for one year & six months and to pay a fine of Rs.100/-. In default of payment of fine to further undergo rigorous imprisonment for three months. Learned counsel appearing for the petitioner has made three submissions before me:- a) That no sanction under Section 197 Cr.P.C. was obtained as the petitioner was a public servant and the same is fatal to the prosecution case; b) The second submission made before me was that in the present case, no reliance can be placed on the Criminal Revision No. 268 of 1995 5 report of Director, Forensic Science Laboratory, Punjab as it was encumbent upon the trial Court to examine the Handwriting Expert and the report of Handwriting Expert is not admissible in evidence under Section 293 (4) Cr.P.C.; c) Thirdly, it has been contended that in all five cases, sentences should be made to run concurrent as petitioner has suffered protracted trial. I have given my thoughtful consideration to these submissions. Both the Courts below i.e. trial Court and the Appellate Court examined the submissions of the petitioner regarding the requirement of sanction as envisaged under Section 197 Cr.P.C. In my view, for embezzlement of the amounts of the Government no sanction is required as to embezzle the funds and forge the documents will not fall under the part of the official duty and petitioner while embezzling the amount cannot be said to be acting or purporting to act in discharge of official duties. Furthermore, the petitioner was posted as a Clerk-cum- Cashier, therefore, his service can be dispensed with by Senior Medical Officer or Director Health Services and since he was not removable from his post by the Government sanction under Section 197 Cr.P.C. is not attracted. I am in agreement with the findings of trial Court, which are reproduced as under:- “...it is not the duty of public servant to misappropriate the public money and to forge the challans, therefore, no sanction u/s 197 Cr.P.C. Is Criminal Revision No. 268 of 1995 6 required in this case in my opinion for the prosecution of the accused. No benefit can be had by the accused from the authorities cited at bar as they are distinguishable from the case in hand”. So far as the second submission is concerned, even by ignoring the report of Handwriting Expert, there is enough evidence of official witnesses to hold that the petitioner was posted as Clerk-cum- Cashier. The challans submitted in the bank had been forged without deposit of the amount and forged seal of the bank has also been affixed on the challans. It has come in evidence that the amount was entrusted to the petitioner and the same has not been accounted for and has not been deposited in the bank or The Treasury and, therefore, the same has been embezzled. So far as the third submission of learned counsel for the petitioner is concerned, it has been held by a Full Bench judgment of this Court rendered in Jang Singh v. State of Punjab 2008 (1) RCR (Criminal)323 as under:- “18. The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C., is that, a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment on an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the Criminal Revision No. 268 of 1995 7 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. Such direction to make the sentences to run concurrently, as per various decisions noted above, 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. However, if the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a period to seek such direction for making the sentences to run concurrently by moving an application under Sections 482/427 Cr.P.C. The view taken by one set of the High Courts that such an application can be entertained while exercising inherent powers under Section 482 Cr.P.C. would no more appear to be good law in view of the decision of the Hon'ble Supreme Court in M.R. Kudva case (supra). We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertaining appeal or revision but would not be so available to be Criminal Revision No. 268 of 1995 8 exercised in isolation when application in this regard is moved either under Sections 482 or 427 Cr.P.C. What principle and consideration will govern the exercise of this discretion, as already noted above cannot be exhaustively enumerated. Certain relevant factors, as can be culled out from different judgments referred to above, may give an indication where such discretion may be exercised. These factors generally would be the nature or character of the offences committed, the prior criminal record of the offender, character, his age and sex etc. ghastly be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any Court dependent upon the facts and circumstances of each case on any relevant or valid considerations as may be considered so by the Court while holding the trail or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Cr.P.C. as observed by Hon'ble Supreme Court is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion”. Since in the present case, this Court is exercising its revisional jurisdiction and the fact that all five cases emerged from one FIR and Criminal Revision No. 268 of 1995 9 the occurrence relate to years 1983, 1984 and 1985 and the FIR pertains to year 1985, petitioner has suffered a protracted trial of more than 25 years and after taking into consideration the fact that the petitioner due to his acts of omission and commission, which led to his conviction, has lost his service and retiral benefits as stated by leaned counsel for the petitioner, ends of justice will be met in case in all the five revision petitions (i.e. challan Nos.1 to 5 from same FIR), sentence awarded by the trial Court and affirmed by the Appellate Court below is made to run concurrent. The present five revision petitions are dismissed except modifications in sentence that the sentence awarded by Courts below, which are subject matter of five revision petitions before me, will run concurrent. (Kanwaljit Singh Ahluwalia) Judge February , 2008 “DK”