In the High Court of Punjab and Haryana at Chandigarh ...... (1) Criminal Misc. No.40518 of 2010 and Criminal Revision No.2163 of 2010 ..... Date of decision:12.8.2010 Darbara Singh .....Petitioner v. State of Punjab .....Respondent .... (2) Criminal Misc. No.40805 of 2010 and Criminal Revision No.2180 of 2010 ..... Darbara Singh .....Petitioner v. State of Punjab .....Respondent .... (3) Criminal Revision No.2554 of 2009 ..... Darbara Singh .....Petitioner v. State of Punjab .....Respondent .... (4) Criminal Revision No.2555 of 2009 ..... Darbara Singh .....Petitioner v. State of Punjab .....Respondent .... Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [2] Present: Mr. Anmol Rattan Sidhu, Senior Advocate with Mr. Nandan Jindal, Advocate for the petitioner. Mr. V.P.S. Sidhu, Assistant Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. Cr. Misc. Nos.40518 & 40805/2010 in Cr. Revision Nos.2163 & 2180/2010: Notice of the criminal miscellaneous applications to Advocate General, Punjab. On the asking of the Court Mr. V.P.S. Sidhu, learned Assistant Advocate General, Punjab accepts notice. Learned senior counsel for the applicant-petitioner has submitted that Criminal Revisions No.2554 and 2555 of 2009 filed by the same petitioner arising out of the same FIR are pending in this Court in which notice of motion had been issued in both the cases on 13.11.2009. The said revision petitions are listed for hearing today before this Bench. In the present criminal revision petitions there has occurred a delay of 291 days in filing the criminal revision petitions. It is submitted that when the custody certificate of the petitioner was demanded from the jail authorities it came to the notice of the counsel for the petitioner that three different challans in FIR No.73 dated 9.5.2001 registered at Police Station Dirba, District Sangrur for the offences under Sections 406, 409, 418 and 120-B Indian Penal Code (`IPC’ – for short) IPC were filed and the petitioner was convicted in all the three challans separately and not jointly. The pariokar of the petitioner supplied the record in the other challans No.157 and 158 of Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [3] 2002. It is submitted that Criminal Revision Nos.2554 of 2009 and 2555 of 2009 have been filed in the same challan i.e. Challan No.155 of 2002. Therefore, there has occurred a delay of 291 days in filing the revision petitions as the petitioner had no knowledge that three different challans had been filed and that the sentences have been ordered to run consecutively and not concurrently. The records of the trial Court has been requisitioned in the connected cases. A perusal of the same and perusal of the jail custody certificates show that in FIR No.73 dated 9.5.2001 registered at Police Station Dirba, District Sangrur, three challans No.155, 157 and 158 of 2002 were filed in the Court of the trial Magistrate. The applicant-petitioner has filed two revision petitions i.e. Criminal Revisions No.2554 of 2009 and 2555 of 2009 in challan No.155 of 2002. Therefore, there has occurred a mistake in filing two revision petitions. In the circumstances, there are sufficient grounds to condone the delay in filing the revision petitions. Accordingly, the criminal miscellaneous applications are allowed and the delay in filing the criminal revision petitions is condoned. Cr. Revision No.2163/2010 Cr. Revision No.2180/2010: Notice of motion to Advocate General, Punjab. On the asking of the Court Mr. V.P.S. Sidhu, learned Assistant Advocate General, Punjab accepts notice. The criminal revision petitions are taken up for hearing with Criminal Revisions No.2554 of 2009 and 2555 of 2009 which are listed for Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [4] hearing today. Heard learned counsel for the parties. This order will dispose of Criminal Revision Petitions No.2554 of 2009, 2555 of 2009, 2163 of 2010 and 2180 of 2010 as they have been filed by the same petitioner Darbara Singh and arise out of the three difference charge-reports (challans) filed by the Police in the same FIR No.73 dated 9.5.2001 registered at Police Station Dirba, District Sangrur for the offences under Sections 406, 409, 418 and 120-B IPC. Learned senior counsel for the petitioner has submitted that inadvertently Criminal Revision No.2554 of 2009 and Criminal Revision No.2555 of 2009 have been filed in the same challan i.e. Challan No.155 of 2002 and, therefore, one of the revision petitions is mere surplusage. In any case, it is submitted that Criminal Revision No.2163 of 2010 and Criminal Revision No.2180 of 2010 have been filed in Challan Nos.157 and 158 of 2002 respectively. The prosecution case is that a letter No. 472 dated 7.5.2001 was received from the Deputy Commissioner, Sangrur for registration of case against Darbara Singh, Sarpanch (petitioner) and other panchayat members of Gram Panchayat Village Toorbanjara. It was alleged in the letter of the Deputy Commissioner Sangrur that Sarpanch and Panchayat Member of Gram Panchayat of Village Toorbanjara had hatched a conspiracy to misappropriate the Shamlat (common) land of the village under the garb of selling it to the persons who were in occupation of it. In this regard, resolution dated 25.12.2000 had been passed by the said Gram Panchayat and money for selling the land was taken from 100 persons by fixing the Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [5] rate of the land at their own level and without obtaining any permission or sanction from the Government. For sale of the Shamlat land necessary prior permission of the Government is required; besides, the rate is to be got fixed from the Collector. It is alleged that the petitioner Darbara Singh and others had got the possession of the land delivered to others illegally and had obtained Rs.4,000/- from each of such persons who intended to purchase the land. They had committed negligence in the performance of their duties, therefore, a case was ordered to be registered for the offences under Sections 120-B, 406, 409 and 418 IPC. Accordingly, a case was registered and investigations were conducted by ASI Baljinder Singh, In-charge, Police Post Sullargharat. During the investigation, the proceedings book which included the resolution dated 25.12.2000 and other receipts and documents were taken in possession; besides, statements were recorded. The learned trial Court framed charges under Sections 409, 418 and 120-B IPC. The prosecution examined witnesses in the different charge-sheets (challans) that were filed by the Police. The statement of the accused in terms of Section 313 Cr.P.C. was recorded and the incriminating evidence appearing against them were put to them. The learned trial Court after considering the evidence and material on record convicted the petitioner for the offence under Section 409 IPC. Besides, he along with other panchayat members was also convicted for the offences under Section 409 read with Section 120-B IPC. However, the offence under Section 418 read with Section 120-B IPC was held to be not made out. The petitioner Darbara Singh was sentenced to undergo rigorous imprisonment for two years; besides, to pay a fine of Rs.500/- and in default of payment of fine to Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [6] undergo rigorous imprisonment for a period of 15 days for the offence under Section 409 IPC. The petitioner and other accused were also sentenced for the same period for the offence under Section 120-B IPC read with Section 409 IPC. The sentences awarded it was ordered shall run concurrently. The petitioner and other accused aggrieved against the order of the trial Court convicting and sentencing them filed an appeal in the Sessions Court at Sangrur. The learned Additional Sessions Judge vide impugned order dated 23.7.2009 allowed the appeal qua the other accused, however, dismissed the same qua the petitioner. It was observed that the petitioner had collected an amount of Rs.10,21,000/- out of which he deposited a sum of Rs.6 Lacs in the Punjab and Sind Bank Branch Sullargharat and receipt of proof was on the file. However, he could not account for the amount of Rs.4,21,000/-. According to the petitioner he had spent the said amount on the development work of the village. The learned lower appellate Court, however, found that Paramjit Singh, Panchayat Secretary (PW-4) had mentioned that all bills regarding development work were prior to the passing of the resolution on 25.12.2000. Therefore, it was held by the learned lower appellate Court that the petitioner Darbara Singh had failed to prove as to where he spent the amount. It held that the amount had not been deposited and accounted for but was misappropriated. Accordingly, the appeal qua Darbara Singh was dismissed which is assailed by way of the present revision petitions referred to above. Learned senior counsel appearing for the petitioner in the respective petitions has submitted that the petitioner had indeed spent an amount of Rs.4,21,000/- on the development work and in case the bills Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [7] relating to development are prior to 25.12.2000 i.e. the date of the resolution that was passed after sale of the land of the Gram Panchayat then it would not make any difference as it is to be taken that the amount had been spent by the petitioner from his own pocket. In any case, it is submitted that the petitioner is an aged person of 70 years. He has been Sarpanch of the village and has faced the travails of prosecution and trial for ten years. Therefore, being in a position not to understand the position regarding the manner in which the land is to be sold a lenient view is liable to be taken and the sentence of imprisonment reduced to that already undergone. In response, learned counsel for the State has submitted that the petitioner has been Sarpanch of the Village and he got the resolution dated 25.12.2000 passed in his capacity as Sarpanch to sell the common land (shamlat land) of the village to those in occupation of the same instead of seeking their ejectment therefrom. The shamlat land is held under trust by the Gram Panchayat and it cannot be sold without the permission of the State Government in terms of the Punjab Village Common Lands (Regulation) Act, 1961 and the rules framed thereunder. Therefore, for the misappropriation which he committed and for which he also collected Rs.10,21,000/- out of which he is unable to account for Rs.4,21,000/- no leniency is liable to be shown and the conviction and sentences as awarded are just and proper and warrant no interference by this Court. It is also submitted that the petitioner did not give his specimen signatures so that his signatures could be compared with the signatures on the resolution dated 25.12.2000. I have given my thoughtful consideration to the contentions of Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [8] the learned counsel for the parties and perused the record. The case, as has already been noticed, is that the petitioner who was Sarpanch along with other members of the Panchayat of Gram Panchayat of Village Toorbanjara passed a resolution dated 25.12.2000 for sale of the Shamlat land to those who were in occupation of the same. The shamlat land with the coming into force of Punjab Village Common Lands (Regulation) Act, 1961 vests in the Gram Panchayat of the village and the same is in a trust with it. It cannot be sold to any person except by taking prior permission of the State Government in terms of Rule 12 of the Punjab Village Common Lands (Regulation) Rules 1964. Therefore, the conduct of the petitioner in collecting Rs.10,21,000/- from the intending purchasers was indeed improper and a clear misconduct to misappropriate the same. However, the sale actually had not taken place and the amount for the sale amounting to Rs.10,21,000/- has been collected. Rs.6 Lacs has been deposited in the Punjab and Sind Bank Branch Sullargharat and the remaining amount of Rs.4,21,000/- has been misappropriated by the petitioner. The stand taken by the petitioner that he had used it for development works has rightly been held by the learned lower appellate Court to be not established as bills for the development works are all prior to 25.12.2000 whereas the amount of Rs.10,21,000/- was collected in consequence of the resolution dated 25.12.2000. Therefore, for the failure to account for the said amount, the petitioner has rightly been convicted by the learned lower appellate Court. It may, however, be noticed that the petitioner is aged 70 years and has undergone the travails of prosecution and trial for 10 years. He is in custody in the present case and there is no other case registered against him. Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [9] As per affidavit of Shri Joga Singh Sekhon, Superintendent, District Jail, Sangrur filed on behalf of the respondent it is mentioned that there is no other case pending against him; besides, he stands convicted for two years and fine of Rs.500/- in Challan No.155 and 157 of 1.8.2002. Therefore, it is in respect of the same FIR the petitioner stands convicted. In the circumstances, it would be just and expedient that the sentence of imprisonment of two years is reduced to 15 months and the fine of Rs.500/- and in default of fine to undergo rigorous imprisonment for 15 days is kept intact. Learned senior counsel has contended that the sentences of imprisonment as have been imposed are outcome of the same FIR and, therefore, the same are liable to run concurrently and not consecutively. A perusal of the order dated 2.12.2008 passed by the learned trial Magistrate shows that the petitioner has been convicted for the offence under Section 409 IPC as well as for the offence under Section 120-B IPC read with Section 409 IPC. He has been sentenced to two years imprisonment for both these offences, however, the sentences have been ordered to run concurrently. There is no specific order as to whether the sentence of imprisonment in the three challans that have been filed is to run consecutively or concurrently. A Full Bench of this Court in Jang Singh v. State of Punjab, 2008 (1) RCR (Cr.) 323 has held that the Court has discretion to convert consecutive sentence to run concurrently. As to what principle and consideration will govern the exercise of this discretion, it was held cannot be exhaustively enumerated. Said guide-line or principle that the Court is to Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [10] exercise discretion depends on facts and circumstances of each case. One of the guide-lines as has been enumerated is as follows:- “2. Each case is to be decided depending upon its facts. Nature and gravity of the offence would certainly be a relevant factor and so too the record of the offender including his age, sex etc.” In terms of the above, it has been mentioned that each case is to be decided depending upon its facts, nature and gravity of the offence which would certainly be a relevant factor. The discretion to make sentence to run concurrently, it was held, can be exercised by the trial Court or by the appellate Court or revisional Court at the time of exercising appellate or revisional jurisdiction. In Pritam Singh v. State of Punjab, 2007 (4) RCR (Cr.) 712, it was held by a Division Bench of this Court that where an accused is convicted in two different cases under the NDPS Act, in one case he is sentenced to 10 years and in the other to 15 years, the sentences to undergo rigorous imprisonment for 25 years, it was held, was too harsh and sentence was ordered to run concurrently. In the present case, the allegations are of embezzlement of Rs.4,21,000/- which is on account of the same transaction and in the same FIR though three different challans have been filed. Therefore, it would be just and expedient that the sentences in all the three challans are ordered to run concurrently. Accordingly, the revision petitions are disposed of with the direction that the sentences of imprisonment shall stand reduced from two years to 15 months; besides, the sentences shall run concurrently in the three Cr. Misc. No.40518/2010 and Cr. Rev. Nos.2163 of 2010 etc. [11] challans i.e. Challan Nos.155, 157 and 158 of 2002. August 12, 2010. (S.S. Saron) Judge *hsp*