Karu @ Kalicharan vs State Of Madhya Pradesh

Anand Pathak, J

The instant petition under Section 482 of Cr.P.C. has been preferred at the instance of petitioner/ accused challenging the judgment dated 22nd

February, 2018, but on different pretext and ground, i.e. in respect of implication of Section 31 of Cr.P.C.

It is the submission of learned counsel for the petitioner that by the judgment dated 22nd February, 2018 passed by the Division Bench of this Court,

appeal preferred by the appellant under Section 374(2) of Cr.P.C. against the judgment and order dated 05/10/2005 passed by Sixth Additional

Sessions Judge (Fast Track), Bhind in S.T. No.200/2002 has been dismissed and the said judgment has been affirmed. Only anomaly referred in the

judgment of the trial Court as well as by the Division Bench of this Court was the omission of the fact bearing legal implication that appellant Karu @

Kalicharan shall have to suffer the jail sentence under Section 302 of IPC as well as Section 353 of IPC concurrently. While relying upon Section 31

of the Cr.P.C., it has been contended that competent Court may direct the punishment to be served one after the expiration of other in such order as

the Court may direct or the Court may direct that punishment shall run concurrently. In the present case, no such reference finds place therefore, in

the interest of justice, reference of running punishment concurrently be referred so that petitioner may apply for remission after completion of required

period otherwise absence of such reference would come in his way for seeking remission.

Learned counsel for the petitioner relied upon recent pronouncement of Hon'ble Apex Court passed on dated 14-02-2019 in the case of Gagan

Kumar Vs. State of Punjab in Cr.A. No.266/2019 wherein after considering the import of Section 31 of Cr.P.C. and fact situation of the case, Apex

Court has directed punishments to run concurrently. He seeks parity.

Learned counsel for the respondent-State opposed the prayer made by the respondent and prayed for dismissal of the petition.

Heard the learned counsel for the parties and perused the record.

In the instant case, vide judgment dated 22nd February, 2018 passed in Cr.A. No.826/2005, the Division Bench of this Court has dismissed the

appeal preferred by the petitioner-Karu @ Kalicharan and appellant No.2-Karu @ Kalicharan was convicted under Section 302 and 353 of IPC and

sentenced to suffer Life Imprisonment for offence under Section 302 of IPC and one year rigorous imprisonment for offence unde Section 354 of IPC

respectively.

Perusal of the judgment and order passed by the trial Court it appears that reflection of import of Section 31 of Cr.P.C. is missing and same

omission continued in appeal.

Section 31 of Cr.P.C. deals in respect of such exigency where sentence in case of conviction of several offences at one trial is to be delivered.

Section 31 of Cr.P.C. is reproduced as under:

Sentence in cases of conviction of several offences at one trial:- (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 therefore, which such Court is competent to inflict; such punishments when 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.

(2) In the case of consecutive sentence, 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:

Provided that-

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

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

(3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentence passed against him under this section shall be deemed

to be a single sentence.

While considering the provisions contained in Section 31 of Cr.P.C., as well as the judgment passed by the Apex Court in the case of Gagan

(supra), it appears that the trial Court as well as Division Bench of this Court omitted the prescription of punishment to run concurrently to the

detriment of the petitioner despite rightly considering the fact situation of the case and dismissing the appeal preferred by appellant No.2 Karu @

Kalicharan. In the said case, appellant No.1-Rajesh s/o Kamal Singh was acquitted from the charge of Section 302/34 of IPC and sentenced for the

period already served in respect of Section 353/34 of IPC but in respect of present appellant- Karu @ Kalicharan, omission of reference of

punishment of sentence to run concurrently would cause prejudice therefore, petition under Section 482 of Cr.P.C. preferred by the petitioner is

hereby allowed. Judgment and order dated 22nd February, 2018 passed in Cr.A. No.826/2005 by Division Bench of this Court stands modified to the

extent that appellant No.2 Karu @ Kalicharan shall suffer jail sentence concurrently under Section 302 of IPC as well as Section 353 of IPC. Both

the sentences shall run concurrently. Rest of the effect of the judgment shall remain the same and petitioner/ appellant shall have to suffer

accordingly.

With the aforesaid modification, petition stands allowed and disposed of.