Akhtar Beg vs State Of H.P

Vivek Singh Thakur, J

By way of this petition, 63 years old petitioner has approached this Court invoking provisions of Section 482 of Cr.P.C. with prayer that sentence imposed upon him in 39 criminal cases under Section 420 of Indian Penal Code be directed to run concurrently.

2 On the basis of complaints preferred by Suresh Kumar and Sardari Lal against the petitioner and his wife Praveen Begum (now deceased), two FIRs Nos. 59 of 2002 and 197 of 2002 were registered. During investigation, it was found that apart from complainants, petitioner and his wife had also taken money from various other persons with assurance to provide job in some Government Departments and/or as Vidya Upasak in Education Department. But neither job was procured for such persons nor money, alleged to have been taken from them, was returned to them and in case FIR No. 50 of 2002, separate 20 challans were presented in Court and in those cases, petitioner has been convicted by the Trial Court Magistrate and sentenced to undergo rigorous imprisonment of three years in each case with fine of Rs.5000/- in each case and in case of each default, to further undergo simple imprisonment of six months in each case.

3 In case FIR No. 197 of 2002, different 19 challans were presented in Court and in all these cases, petitioner has been convicted by the Judicial Magistrate First Class, Chamba and sentenced to undergo rigorous imprisonment of three years in each case with fine of Rs.5000/- in each case and for each default of payment thereof, six months each simple imprisonment in each case.

4 Criminal appeals as well as Criminal Revisions preferred by petitioner before the Sessions Judge, Chamba and this High Court were dismissed.

5 The Judicial Magistrate has convicted and sentenced the petitioner during the period w.e.f. 17.01.2015 to 31.12.2015 by pronouncing separate judgments of conviction and imposing sentence separately in each case but without any order to run these sentences concurrently.

6 As on date, petitioner has already served sentence in seven cases after deducting period of detention already undergone as under trial prisoner as well as remission of period as earned by him during his detention. However, he has not paid fine amount in any case.

7 After conviction in first case No. 530 of 2013 vide judgment dated 17.01.2015 petitioner is serving the sentence and apart from his detention as an under-trial prisoner, he is under detention since last about 8 years and 6 months.

8 In response to petition, reply has been filed and along with the reply, custody/details of sentence execution of petitioner has also been placed on record.

9 As per details in Chart, total sentence imposed is 117 years imprisonment and in case of default in payment of fine, 19 years 6 months further imprisonment shall be there. In case all sentences are to be run consecutively then after exclusion/ adjustment of period already undergone as under-trial prisoner, as depicted in Chart, petitioner shall have to undergo imprisonment for 27-28 years.

10 In addition, for default in each case in payment of fine, he shall have to undergo simple imprisonment in 39 cases i.e. about 19 years 6 months. Till date, petitioner has not deposited the fine amount in any case including the cases in which he has already served substantive sentence of imprisonment imposed upon him. Payment of every Rs.5000/-shall result deduction of six months simple imprisonment awarded for default.

11 From the Chart, it appears that petitioner was also under detention during the trial.

12 Learned counsel for petitioner to substantiate the prayer of petitioner to direct for sentence, awarded to him in all cases, to run concurrently, has referred judgments of Supreme Court in Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti vs. Assisitant Collector of Customs (Prevention), Ahmedabad and another reported in (1988)4 SCC 183, State of Punjab vs. Madan Lal reported in (2009)5 SCC 238; V.K. Bansal vs. State of Haryana reported in (2013)7 SCC 211; Vicky alias Vikas vs. State (NCT of Delhi) reported in (2020)11 SCC 540; Ammavasai and another vs. Inspector of Police, Valliyanur and others reported in (2000)9 SCC 749, order dated 17.02.2017 passed by the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Misc (Petition) No. 2883 of 2014 titled Rajender vs. State of Rajasthan; order dated 11.09.2017 passed by the High Court of Judicature for Rajasthan at Jodhpur in S.B. Criminal Mis(Pet.) No. 2074 of 2016 titled Mamu Ram vs. State of Rajasthan; judgment dated 24.05.2016 passed by High Court of Punjab and Haryana at Chandigarh in CRR No. 308 of 2016 titled Anil Kumar vs, State of Punjab reported in 2016 SCC OnLine P&H 4555; order dated 6.4.2022 passed by the Madurai Bench of Madras High Court in Crl.O.P. (MD) No. 4142 of 2022 titled Murugan @ Panni Murugan vs. The State represented by The Sub Inspector of Police; judgment dated 25.05.2021 passed by the Supreme Court in Cr. Appeal No. 526 of 2021 (arising from SLP (Crl.) No. 3549 of 2018) titled Sunil Kumar @ Sudhir Kumar and another vs. State of Uttar Pradesh; judgment dated 15.06.2018 passed by the Gujarat High Court in R/Special Criminal Application No. 3006 of 2018 titled Senaul S/O Afsar Shaikh vs. State of Gujarat; judgment dated 16.12.1988 passed by Madhya Pradesh High Court in Criminal Case No. 1988 of 1987, titled Sher Singh vs. State of M.P.; judgment dated 25.01.2019 passed by High Court of Judicature at Madras in Cr. O.P. No. 1653 of 2019 titled Mani vs. State represented by the Sub Inspector of Police.

13 Learned Additional Advocate General, on behalf of respondent/State, has referred the pronouncement of the Supreme Court in M.R. Kudva vs. State of A.P. reported in (2007)2 SCC 772 with contention that as provision of Section 427 of Cr.P.C. was not invoked in original cases or in appeals or revision and this application, as has been filed after dismissal of revision petition by High Court, is not maintainable at this stage because, as per this judgment of the Supreme Court, High Court cannot exercise its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in revision petition, and as neither Trial Magistrate nor Sessions Judge or High Court at the time of passing of judgment of conviction and imposing sentence indicated that sentences passed against the petitioner in all cases shall run concurrently or Section 427 Cr.PC would be attracted, the provisions of Section 427 Cr.P.C. could not be applied in separate and independent proceedings of the High Court.

14 Judgment in M.R. Kudva’s case has been passed by a Division Bench of the Surpeme Court.

15 Referring the judgment in case Mohammad Jahid vs. State of NCT reported in 2021 SCC OnLine 1183 (SC), it has been contended by learned Additional Advocate General that general rule is to run the sentences in different cases consecutively and direction to run such sentences concurrently is an exception. Further that considering the nature of offence and number of persons defrauded by the petitioner, he does not deserve any favour of discretion of Court by exercising the exception.

16 In State of Punjab vs. Madan Lal’ case an application filed by convict under Section 482 read with Section 427 of Code of Criminal Procedure, seeking direction to run the sentence awarded concurrently in respect of three convictions and sentence imposed, was allowed by Punjab and Haryana High Court and the said order was assailed by State of Punjab before the Supreme Court. The Supreme Court dismissed the appeal being devoid of merit and thus, upheld the order passed by High Court after conclusion of trial, under Section 482 Cr.P.C. read with Section 427 of Cr.P.C., directing to run the period of sentences concurrently. This judgment is subsequent to M.R.Kudva’s case and also by Larger Bench of the supreme Court i.e. by a Bench comprising of three Judges in comparison to the Division Bench in M.R. Kudva’s case.

17 Considering the ratio laid down in Union of India vs. K.S. Subramanian reported in AIR 1976 SC 2433 and State of UP vs. Ram Chandra Trivedi reported in AIR 1976 SC 2547 and Central Board of Dawoodi Bohra Community and another vs. State of Maharashtra reported in (2005)2 SCC 673, the opinion of Larger Bench is to be preferred instead of verdict of Smaller Bench. Similar view has been followed by Madras High Court in Mani vs. State represented by The Sub Inspector of Police and Rajasthan High Court in Rajender vs. State of Rajasthan and Mamu Ram vs. State of Rajasthan.

Therefore, plea of respondent/State that present petition is not maintainable is rejected.

18 Taking into consideration the facts and circumstances of the present case including period of detention already undergone by petitioner and quantum of sentence awarded and further remaining period of detention in case sentence is continued to run consecutively as well as ratio of pronouncement of the Supreme Court in Madan Lal’s case, referred supra, I am of considered view that for the ends of justice it would be appropriate to exercise the discretion under Section 482 Cr.P.C. read with Section 427 of Code of Criminal Procedure.

19 Accordingly, it is directed that after serving sentence ongoing in the case presently, substantive sentence imposed in remaining cases pertaining to FIR No. 197 of 2002 shall run concurrently and sentence in remaining cases pertaining to FIR No. 50 of 2002 shall run concurrently but consecutively to the sentence awarded in remaining cases in FIR No. 197 of 2002, meaning thereby that firstly ongoing sentence shall be served, thereafter sentence in remaining case in FIR No.197 of 2002 shall run concurrently in all cases pertaining to that FIR and after that sentence imposed in all remaining cases in case FIR No. 50 of 2002 shall start running but concurrently. The concurrent sentence in remaining cases pertaining to case FIR No. 197 of 2002, shall start consecutive to the sentence in the case in which petitioner is presently undergoing/serving the sentence.

20 As expressed by the Supreme Court in V.K. Bansal’s case provisions of Section 427 Cr.P.C. do not permit the direction for concurrent running of substantive sentence that sentences awarded in default of on account of fine or compensation, the sentence imposed in default of payment of fine shall not be affected by aforesaid direction and in default of payment of fine in the cases, the petitioner shall have to undergo six months simple imprisonment in each case for each default.

Petition is allowed in aforesaid terms along with all pending miscellaneous application(s) if any.