Delhi High Court
Sudhir Sharma vs C.B.I. on 28 September, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL. Rev.P. Nos. 282 to 284/2011
% Judgment reserved on: 4th August,2011
Judgment delivered on:28th September,2011
1. CRL.Rev.P. No. 282/2011
SUDHIR SHARMA ..... Appellant
Through: Mr.Sandeep Sharma &
Mr.Amit Sharma, Advocates
versus
C.B.I. ..... Respondents
Through: Mr. P.K. Sharma, Standing
Counsel for CBI with
Mr.Uday Prakash Yadav,
Advocate
2. CRL.Rev.P. No. 283/2011
SUDHIR SHARMA ..... Appellant
Through: Mr.Sandeep Sharma &
Mr.Amit Sharma, Advocates
versus
C.B.I. ..... Respondents
Through: Mr. P.K. Sharma, Standing
Counsel for CBI with
Mr.Uday Prakash Yadav,
Advocate
3. CRL.Rev.P. No. 284/2011
SUDHIR SHARMA ..... Appellant
Through: Mr.Sandeep Sharma &
Mr.Amit Sharma, Advocates
versus
C.B.I. ..... Respondents
Through: Mr. P.K. Sharma, Standing
Counsel for CBI with
Mr.Uday Prakash Yadav,
Advocate
CRL.Rev.P. Nos.282 to 284 of 2011 Page 1 of 17
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported YES
in the Digest?
SURESH KAIT, J.
CRL.Rev.P. No. 282/2011
1. In the instant case, the petitioner has been held guilty
vide judgment dated 25th March, 2009 and order on
sentence dated 1st April, 2009 passed by learned ACMM in
FIR RC No. 3(S)98 S-0003, and has been sentenced to
undergo rigorous imprisonment for a period of 03 years and
a fine of Rs.5,000/- under Section 380/120B IPC; RI for one
year and fine of Rs.1500/- under Section 465/120B IPC; RI for
03 years and fine of Rs.5000/- under Section 467/120B IPC;
RI for 03 years and fine of Rs.5000/- under Section 468/120B
IPC; RI for 03 years and fine of Rs.5000/- under Section
171/120B IPC; RI for 03 years and fine of Rs.5000/- under
Section 474/120B IPC and RI for 02 years and fine of
Rs.2000/- under Section. 420/34 IPC. Benefit under Section
428 IPC has been extended to the Appellant.
2. Vide the impugned judgment dated 25 th March, 2011,
the judgment dated 25th March, 2009 and the order on
sentence dated 14th September, were upheld and the appeal
was dismissed.
CRL.Rev.P. No. 283/2011
1. In this case, the petitioner was held guilty vide
judgment dated 19th August, 2010 and by an order on
sentence dated 27th August, 2010 the petitioner was
sentenced as under:
"(a) Convict Sudhir Sharma is awarded RI of six
months and a fine of Rs.1,000/- for the offence
punishable U/s 417 r/w Section 120-B IPC. In
default of payment of fine SI of one month.
(b) Convict Sudhir Sharma is awarded RI of 03
years and a fine of Rs.3,000/- for the offence
punishable U/s 471 r/w Section 120-B IPC. In
default of payment of fine SI of 3 months.
(c) Convict Sudhir Sharma is awarded RI of six
months and a fine of Rs.1,000/- for the offence
punishable U/s 419 r/w Section 120-B IPC. In
default of payment of fine, SI of one month.
(d) Convict Sudhir Sharma is awarded RI of six
months and a fine of Rs.1,000/- for the offence
punishable U/s 465 r/w Section 120-B IPC. In
default of payment of fine, SI of one month.
(e) Convict Sudhir Sharma is awarded RI of 03
years and fine of Rs.3,000/- for the offence
punishable U/s 467 r/w Section 120-B IPC. In
default of payment of fine SI of 3 months.
(f) Convict Sudhir Sharma is awarded RI of 03
years and a fine of Rs.3,000/- for the offence
punishable U/s 468 r/w Section 120-B IPC. In
default of payment of fine SI of 3 months.
(g) Convict Sudhir Sharma is awarded RI of six
months and a fine of Rs.1,000/- for the offence
punishable U/s 120-B IPC in which he entered
into criminal conspiracy with convict Rajinder Pal
Singh for committing cheating (417 IPC),
impersonation (419 IPC) and fraudulently using
forged documents as genuine (471 IPC)."
(emphasis supplied)
2. Vide judgment dated 31st March, 2011, the appeal of
the appellant was dismissed and the judgment dated 19th
August, 2010 and the order dated 27th August, 2010 were
upheld.
CRL.Rev.P. No. 284/2011
1. In this case, the petitioner was held guilty vide
judgment dated 26th June, 2010 and by an order on sentence
dated 16th July, 2010, and the following sentences were
given as follows:
"a. Convict Sudhir Sharma is directed to
undergo simple imprisonment for the period of
02 years and fine of Rs.2000/- for the offences
u/s 380 IPC r/w 120-B IPC and in default of fine SI
of 1 month.
b. Convict Sudhir Sharma is directed to
undergo simple imprisonment for the period of 1
years for the offences u/s 419 IPC r/w 120-B IPC.
c. Convict Sudhir Sharma is directed to
undergo simple imprisonment for the period of
03 years and a fine of Rs. 2000/- for the offences
u/s 420 IPC r/w 120-B IPC and in default of fine SI
of 2 months.
d. Convict Sudhir Sharma is directed to
undergo simple imprisonment for the period of
03 years and a fine of Rs. 2000/- for the offences
u/s 467 IPC r/w 120-B IPC and in default of fine SI
of 2 months.
e. Convict Sudhir Sharma is directed to
undergo simple imprisonment for the period of 6
months and a fine of Rs. 1000/- in default SI of 1
month for the offence u/s 12 Passport Act.
All the sentences shall run concurrently.
Rs. 7000/- deposited as fine."
(emphasis supplied)
2. Vide judgment dated 6th April, 2011 while upholding the
order and judgment, the appeal was dismissed.
3. It is pertinent to note that, learned counsel for the
petitioner has not disputed the conviction or the sentence of
the petitioner. He has only prayed to run the sentences
concurrently in all the 03 cases.
4. Learned counsel has relied upon a judgment of Full
Bench of Bombay High Court in Satnam Singh Puransing
Gill vs. State of Maharashtra reported in 2009 Crl.L.J.
3781 in the case of wherein it was held as under:
"7. The extent of judicial discretion thus could
emerge from either enacted law or through the
guidelines and precepts which are recognised
over a span of time. Both these sources would
have a direct impact on the exercise of discretion
by the Courts while imposing punishment. It
could be at the stage of first conviction or at a
subsequent conviction of the same accused.
Besides, imposition of punishment in such cases,
the Court also have an additional obligation to
direct whether the sentences awarded would run
concurrently or consecutively. This aspect of
criminal jurisprudence has been statutorily
recognised in Indian Criminal Law where the
legislature has introduced Sections 31 and 427,
respectively of the Code of Criminal Procedure,
1973, (hereinafter referred to as the `Code'.)
8. Section 31(1) of the Code vests a discretion in
the Court to direct that the punishment shall run
concurrently when a person is convicted
at one trial of 02 or more offences. The Court
may sentence the accused for such offences to
the several punishments prescribed therefor
which such Court is competent to inflict. Such
punishments would consist of imprisonment to
commence the one after the expiration of the
other in such order as the Court may direct
subject to the limitation contained in Section 71
of the Indian Penal Code.
9. In terms of Section 31(2) of the Code wherever
the Court awards consecutive sentences, it shall
not be necessary for the Court to send the
offender for trial before a higher Court on the
ground that the aggregate punishment for the
several offences is in excess of the punishment
which it is competent to inflict on conviction of a
single offence. This, however, is further subject
to the proviso to Section 31(2) of the Code. This
discretion of the Court is, therefore, applicable
only in the cases which fall in the category of at
one trial of 02 or more offences. On a bare
reading11 of this Section, it has no application to
the cases where a person is tried and convicted
under 02 or more different trials for different
offences. This aspect is covered by Section 427
of the Code, which reads as under:-
"427. Sentence on offender already
sentenced for another offence. -
(1) When a person already undergoing a
sentence of imprisonment is sentenced 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, the subsequent sentence shall run
concurrently with such previous sentence."
11. The question of law as posed opens with the
words "whether power under Section 427 of the
Code can be exercised by the Court ........." in the
circumstances stated in the question. This
obviously means that the Court has the power in
terms of Section 427 of the Code to issue
directions to order as to whether the sentences
awarded upon conviction on a subsequent trial
would run concurrently or consecutively. How
this discretion is to be exercised would primarily
be a matter depending upon the facts and
circumstances of a given case. Before we
venture into the various judgments relating to
exercise of judicial discretion under Section 427
of the Code, it will be appropriate to examine
first the legal provisions, principles of
interpretation and application of statutory law to
such cases.
15. The rule of literal, liberal or strict
construction may be applied while interpreting a
statute but in either of them it is hardly
permissible to add or read into the provisions.
The expression or the words which are
non-existent in the statute cannot be read into it
when the provisions on its plain reading is clear
and unambiguous. Maxwell while interpreting the
narrow distinction between the liberal and
strict construction stated as under :-
"The tendency of, modern decisions, upon
the whole, is to narrow materially the
difference, between what is called a strict
and a beneficial construction. All statutes
are now construed with a more attentive
regard to the language, and criminal
statutes with a more rational regard to the
aim and intention of the legislature, then
formerly. It is unquestionably right that
the distinction should not altogether
erased from the judicial mind, for it is
required by the spirit of our free
institutions that the interpretation of all
statutes should be favourable to personal
liberty, and this tendency is still evinced
in a certain reluctance to supply the
defects of language, or to eke out the
meaning of an obscure passage by
strained or doubtful influences. The effect
of the rule of strict construction might
almost be summed up in the remark that,
where an equivocal word or ambiguous
sentence leaves a reasonable doubt of its
meaning which the canons of
interpretation fail to solve, the benefit of
the doubt should be given to the subject
and against the legislature which has
failed to explain itself. But it yields to the
paramount rule that every statute is to be
expounded according to its expressed or
manifest intention and that all cases
within the mischiefs aimed at are, if the
language permits, to be held to fall within
its remedial influence."
26. Judicial discretion is vested in the Court
under Section 389 of the Code in regard to grant
or refusal of bail. Similarly, discretion is also
vested in the Court which is exercising powers
under Section 427 of the Code. The mere fact
that wide discretion37 is vested in the Court in
relation to either of these provisions, per se
would not justify imposition of restrictions or
limitations which are not specified by the
Legislature. As already indicated, the discretion
is to be well guided by law and principles
enunciated by judgments of the Courts."
5. He has also relied on the judgment of the Hon'ble
Supreme Court in State of Punjab vs. Madan Lal 2009 (5)
SCC 238, wherein the Court observed:
"2.The convictions were in terms of
Section 138 of the Negotiable Instruments Act,
1881 (in short the `Act'). The High Court noted
that all the transactions related to the family of
the respondent and the matter related to
different cheques issued by the respondent to
the complainant party. For this purpose separate
complaints were filed.
3. The High Court accordingly directed that the
sentences imposed by learned Additional
Sessions Judge, Ludhiana and Sub Divisional
Judicial Magistrate, Khanna were to run
concurrently. According to the State the
judgment of the High Court is erroneous.
7. Above being the position, the appeal is
without merit, deserves dismissal which we
direct."
6. In Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti
Vs. Assistant Collector of Customs (Prevention),
Ahmadabad and Another 1988 (4) SCC 183, has held:-
"10. The basic rule of thumb over the years has
been the so called single transition rule for
concurrent sentences. If a given transaction
constitutes 02 offences under 02 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 the transaction relating to offences
is not the same or the facts constituting the 02
offences are quite different.
11. xx xx xx
12. The submission, in our opinion, appears to be
misconceived. The material produced by the
State unmistakably indicates that the 02
offences for which the appellant was prosecuted
are quite distinct and different. The case under
the Customs Act may, to some extent, overlap
the case under the Gold (Control) Act, but it is
evidently on different transactions. The
complaint under the Gold (Control) Act relates to
possession of 7,000 tolas of primary gold
prohibited under Section 8 of the said Act. The
complaint under the Customs Act is with regard
to smuggling of Gold Worth Rs. 12.5 crores and
export of silver worth Rs. 11.5 crores. On these
facts, the Courts are not unjustified in directing
that the sentences could be consecutive and not
concurrent."
7. Further, in Ahsaan vs. State of Delhi through Moti
Nagar Police Station, Crl. Appeal No.1068/2009
decided on 14.05.2009 wherein the Supreme Court held
as under:-
"6. In the present case, the question which has
arisen is with regard to the directions given by
the High Court that the sentence in this appeal
would start operating once the sentence in Crl.
Appeal 40/03 came to an end. The said order has
been passed keeping in mind the provisions of
Section 427 of the Code of Criminal Procedure.
7. Having heard learned counsel for the
respective parties and having further regard to
the discretion which has been vested in the
Court under Section 427 Cr.P.C. to direct the
sentence to run concurrently, if found fit, we
modify the order passed by the High Court in
Criminal Appeal No.823 of 2001 and direct that
all the sentences in both the appeals shall run
concurrently."
8. I note the petitioner has been convicted in case
bearing RC No.6 & 7(s)/99 on 26.06.2010 on the complaint of
Sh. M K Puri, Inspector, CBI, SIC, New Delhi. He has also
been convicted in case bearing RC No.4(s)/98 on 19.08.2010
on the complaint of Sh. M K Puri, Inspector, CBI, SIC, New
Delhi. Lastly, in a case bearing RC No.3(S)/98 S-0003 on the
complaint of Babu Rao Anand Parvat H, PSI Immigration
Sahara International Air Port, Mumbai.
9. In a case of Abdul Razak @ Raja Vs.
Superintendent, Central Prison, Visakapatnam & Anr.
1992 Cri.L.J 261 wherein a case of Allahabad High Court
decided by Full Bench in Multan Singh Vs. State, 1974 Cri.L.J
1397 wherein certain guidelines were laid down as under :
"The High Court, while exercising its revisional jurisdiction
suo motu or in exercise of its inherent power under S.
482, can direct the sentence to run concurrently as
provided under S. 427, Cr.P.C. even though the
convictions and sentences that have been passed by the
Additional Sessions Judges of different Sessions Division
have become final."
10. No, doubt, as was already held by the Court in the
decision cited supra, while exercising it revisional jurisdiction
suo moto or in exercise its inherent power under Section 482
Cr.P.C. can direct he sentences to run concurrently. But this
power should be exercised sparingly and not in any arbitrary
manner and the nature of the offence has also to be taken
into consideration.
11. In the present case the petitioner is habituated to
commit offence punishable under different laws. While
exercising its inherent powers we have to be very cautious in
dealing with the cases of habitual offenders and any exercise
of that power should not be an encouraging factor for
habitual criminals to commit more offences.
12. In RC No.6 & 7(s)/99, the petitioner was working with
M/s T.S.Duggal, a Travel Agency at new Delhi, which was
engaged in supply of manpower to foreign country. In the
course of his business, he used to visit to the office of M/s
Thomas Cook, New Delhi for the purpose of arranging foreign
exchange to the persons visiting abroad. He came in contact
with Mr. Anand Singh Negi, an official of M/s Thomas Cook
Ltd. They both conspired with each other and involved one
Gurinder Singh (now expired, an official of PV-II, MEA, Patiala
House to arrange unused official Visas/Passports, forge/alter
them for the purpose for sending persons illegally to foreign
countries.
13. In case of RC No.4(s)/98, while working with M/s
T.S.Duggal, Travel Agency at New Delhi, co-accused Rajinder
Pal Singh was to go to USA. For that purpose he used
unused official passport bearing no.O-01003451 dated
17.10.1996 in the name of one Sukhdev Singh Negi. This
Negi was to accompany one Mohan Menon, Ambassador
Mascow USSR as his cook, however, he could not go and his
official passport prepared for the said purpose remained
unused and was lying with MEA, PV-II, Patiala House, New
Delhi. Co-accused Rajinder Pal Singh used this passport, for
the purposes of leaving to USA.
14. In a case bearing RC No.3(S)/98 S-0003, co-accused
Sarabjeet Singh had come to India after being deported from
England in June, 1996. He need to go back, but was not
having any valid passport. During the year 1996-97, said
Sarabjeet Singh came in contact with the petitioner and
other co-accused namely, Gurjinder Singh, who was working
as peon in Central Registry Section of Ministry of External
Affairs, Patiala House, New Delhi. This department of
Government used to issue passport to the Government
officials who had to visit abroad. He was having contact with
the petitioner who was dealing with the business of travel
agent and air tickets and providing other facilities to the
persons wishing to go abroad especially to USA. Co-accused
Sarabjeet Singh was in need of passport to go abroad where
his family was residing. All the co-accused persons including
petitioner hatched a criminal conspiracy. In the said criminal
conspiracy co-accused Gurjinder Singh was to arrange an
unused official passport of some Government officials which
was lying with the aforesaid department and to alter/forge it
and get the passport convenient for co-accused Sarabjeet
Singh. The petitioner was to provide facility to accused
Sarabjeet Singh for sending from India to USA. For this
purpose, co-accused Sarabjeet Singh gave R.07 lakhs to the
petitioner. Same was done at the time when accused
Sarabjeet Singh was to board the flight from Mumbai Airport.
H was apprehended at Immigration clearance Center by the
officials pasted therein and to the effect, a separate FIR
No.522/97 under Section 465/467/468/471/474/419/420 PS
Sahar Airport, Mumbai was registered. Thereafter the
matter was handed over to CBI for investigation. After the
compliance of provisions under Section 207 Cr.P.C. and after
hearing the arguments on charge, charges under Section
465/467/468/471/474/380/411 read with Section 120-B
Indian Penal Code, 1860 and Section 3 of Indian Passport
Act, 1997 were framed.
15. Keeping in view, the facts of above three cases, in
which the petitioner has been convicted, I am of the view,
the petitioner is cheater by nature. By forging the document
he can dupe or cheat anyone.
16. I note in all the cases, after the conspiracy being
hatched with co-accused, has committed offense not once or
twice, rather thrice. Such person do not deserve any
leniency or discretionary to be used in his favour.
17. I had come across such types of cases, where the
travel agents are the main source of getting forged
passport/forged visas and other forged documents. For the
sake of money, some time they play with the career and life
of innocent persons. A layman some time does not
understand, whether the person is genuine or a fraud. He
also does not understand, whether the documents he is
getting are genuine or forged. No doubt, some persons are
of the same nature as of petitioner. They pay heavy amount
and get work done in this fashion only, but the courts have
main concerns about the innocent persons being cheated by
such persons.
18. The petitioner has been doing this type of illegal work
for a substantial time. Cheating is in his nature. The
chances are very bleak for his improvement. Therefore, I am
of the view that the sentences awarded by the courts below
are not to be run concurrently. Therefore, plea of the
petitioner is rejected.
19. Accordingly, Crl.Rev.P. Nos.282, 283 & 284/2011 are
dismissed.
20. No costs.
SURESH KAIT, J
September 28, 2011
'Raj'/vld
