Pankaj Verma @ Nikhil vs State
2020 Latest Caselaw 1973 Del

$~1
*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       Reserved on:        02.06.2020
                                       Pronounced on:      12.06.2020

+       CRL.A. 611/2018       (URGENT)      &    Crl.M.A.40714/2019     &
        Crl.M.B.5926/2020

        PANKAJ VERMA alias NIKHIL                         ..... Appellant
                    Represented by:             Mr.Kanhaiya Singhal, Adv.

                          Versus

        STATE                                            ..... Respondent
                          Represented by:    Mr.Hirein Sharma, APP for
                                             State.

        CORAM:
        HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              JUDGMENT

Crl.M.A.40714/2019 in Crl.A.611/2018

1. The present application has been filed by the applicant/appellant

under section 427 read with section 482 Cr.P.C. to dispose of the present

appeal bearing Crl.A.611/2018 by directing the sentence of 5 years

under section 392/34 IPC awarded vide judgment and order on sentence

dated 18.12.2017 and 22.12.2017 respectively passed by Sh.Deepak

Garg, ASJ-02 (North-West), Rohini Courts, Delhi in case bearing SC

No.52085/16 titled as State vs. Pankaj Verma arising out of FIR

No.74/2013 registered at Police Station North Rohini for the offences

punishable under section 392/34 IPC and the substantive sentence of 7

years under section 392 IPC & 5 years under section 392 IPC awarded

vide judgment and order on sentence dated 25.07.2016 and 28.07.2016

respectively passed by Sh. Naresh Kumar Malhotra, Ld. ASJ, Tis Hazari

Court, Delhi in SC No. 119/14 arising out of FIR No. 263/2014 u/s

392/397/34 of IPC at P.S. Miawali Nagar or in alternative to reduce the

sentence to the period already undergone by the appellant.

2. The appellant has challenged his conviction u/s 392/34 of IPC

recorded in terms of judgment dated 22.12.2017 and order of sentence

dated 22.12.2017 passed by Sh. Deepak Garg, Ld. ASJ-02, North-West,

Rohini in SC No. 52085/2016 arising out of FIR No. 74/2013 U/s

392/34 of IPC at PS North Rohini, whereby the learned Judge sentenced

the appellant to undergo RI for a period of 5 years with a fine of

₹5,000/- for the offence punishable under section 392 IPC and in default

of payment of fine, he has to undergo SI for 15 days. However, the

appellant has already undergone about 1 year 5 months out of the total

sentence of 5 years awarded by the Trial Court.

3. The Appellant had also challenged his conviction by way of filing

an appeal bearing Crl.A. No. 1018/2016 before this Court against the

judgment and orders dated 25.07.2016 & 28.07.2016 respectively passed

by Sh. Naresh Kumar Malhotra, Ld. ASJ, Tis Hazari Court, Delhi in SC

No. 119/14 arising out of FIR No. 263/2014 u/s 392/397/34 of IPC at

P.S. Miawali Nagar and whereby the appellant was convicted u/s

392/397/34 of IPC and sentenced to undergo rigorous imprisonment for

a period of five years with a fine of ₹10,000/- for the offence committed

under Sections 392/34 of the IPC and in default of payment of fine, to

serve simple imprisonment for a further period of six months and further

sentenced to undergo rigorous imprisonment for a period of seven years

for the offence punishable under Section 397/34 of the IPC. However,

the said appeal has already been dismissed in terms of judgment dated

13.05.2020 passed by this Court.

4. The present application is an application u/s 427 of Cr.P.C.

whereby the appellant is praying that the sentences awarded in FIR No.

74/2013, PS North Rohini and FIR No. 263/14 PS Miawali Nagar may

be directed to run concurrently. However, he does not dispute the

conviction and order on sentence.

5. Learned counsel for the appellant/applicant submitted that the

appellant is a young boy and felt into bad company which resulted into

his involvements in number of cases. The police also found the appellant

as easy play and implicated him in number of cases to solve those cases

whereas the appellant has nothing to do with the said cases. The

appellant belongs to a very poor strata of the society and his

involvements were a result of mis-guidance, illiteracy and misery of

poverty. The appellant has already reached to the age of maturity and

the crimes were committed as an adolescent person. He has reformed

himself and undertakes to behave properly in the society as and when he

is released from the jail.

6. Further submitted that appellant was merely 24 years old at the

time of alleged offence. Now, he is married and having two minor girl

children aged about 8 years and 7 years. The appellant's mother-in- law

aged about 70 years is residing with him. There is no source of income

of the family and they are at the verge of poverty. The girl children are

school going but due to financial stress, they are not getting proper

education. The wife of appellant is managing the affairs of the family

with great difficulty. So far as the previous involvements and

convictions of appellant are concerned, the appellant has already

undergone those sentences and have paid the fine.

7. On the other hand, learned APP for State submitted that the

present application ought to have been dismissed solely for the reason

that the applicant is a habitual offender and does not deserve the benefit

of section 427 of the Cr.P.C. The applicant besides the present case

under section 392/34 IPC PS North Rohini bearing FIR No. 74/13 is

facing trial/conviction in various other cases. As per the latest Nominal

Roll, the applicant is facing conviction in as good as four cases bearing

FIR No. 263/14 u/s 392/397/34 IPC PS Miyawali Nagar; FIR bearing

No. 1202/15 u/s 392/411 IPC PS Mukharji Nagar; FIR bearing No.

583/16 u/s 392/365/34 IPC PS Shakar Pur; FIR bearing No. 176/12 u/s

382/411 IPC PS Preet Vihar; FIR bearing No. 204/05 u/s 392/394 IPC

PS Mandawali; FIR bearing No. 303/08 u/s 392/411/34 IPC PS

Mandawali and FIR bearing No. 234/05 u/s 384/34 IPC PS Preet Vihar.

8. Further submitted that the parallel Appeal bearing Crl.A.

1018/2016 has also been dismissed by this Court vide order dated

13.03.2020.

9. Learned APP further submitted that it is a well settled position of

law that the lenient view of running sentence concurrently must be given

to the petty offenders and not to the desperate habitual offender who had

committed such gruesome crimes and is undergoing sentences in

numerous cases. So, in the light of the same, the direction to run the

sentence which was awarded in both the said cases/FIR's should not be

passed concurrently, in the interest of justice, as the nature of the

offences is different and the victims in both the cases are different. The

acts which were committed by the applicant/accused are heinous and

gruesome in the eyes of law which led to the sufferings of the victims.

Therefore, such type of offenders should not be given any sort of liberty

to get released from the judicial custody.

10. To strengthen his arguments, learned APP has relied upon the

case decided in CWP No.789/13 by High Court of Bombay in case titled

as "Subhash Devidas Deshmukh vs. The State of Maharashtra"

whereby dismissed the petition on 03.10.2013 on the same grounds.

Thus, this discretion should be used by courts in cases where there is a

genuine need, not in the cases where there is a person who is habitual

offender and have no respect of law. Thus, present application deserves

to be dismissed.

11. I have heard learned counsel for the parties through video

conferencing and perused the material available on record.

12. It is settled position of the law that the direction to run the

sentence concurrently may be passed by the Trial Court, Appellate

Court and the Revisional Court.

13. Full Bench of Kerala High Court in Mani & Anr. vs. State of

Kerala: 1983 SCC Online Ker 255, has held that "when no direction is

given by the trial court that the sentences were to run concurrently,

direction can be issued by the High Court under inherent powers even if

the stage of exercising discretion under section 427(1) of the Code is

over, in circumstances which would serve the purposes mentioned in

Section 482".

14. Division Bench of the Andhra Pradesh High Court in V.

Venkateswarlu vs. State of A.P.: 1987 SCC Online AP 60 has held that

"when two convictions and sentences are passed against accused by two

different courts and orders have become final on an application by

accused under Section 482 that those sentences may be run

concurrently, the High Court is competent to issue such direction."

15. In the case of Benson vs. State of Kerala: (2016) 10 SCC 307 the

Hon'ble Supreme Court has considered the question of conviction of an

accused in separate trials and the fact that whether the sentences would

run concurrently or consecutively in exercise of powers under Section

427(1) of Cr.P.C. In the said case, the petitioner before the Hon'ble

Supreme Court was convicted in four different cases and prayed for

running of sentences concurrently in all those four cases. The petitioner

of said case was having previous involvements in as many as 12 cases

(cases involving 392/457/205/379/414/120-B of IPC). Despite the

Hon'ble Supreme Court in terms of its judgment directed the running of

substantive sentences concurrently.

16. Moreover, the case of Vicky @ Vikas vs. State: 2020 SCC Online

SC 116 the Hon'ble Supreme Court considered the issue of running the

sentences concurrently and the petitioner in said case was convicted in 5

cases (including NDPS/Kidnapping/assault on public servant/ robbery).

The petitioner therein had undergone only 1 year 6 months out of 7

years sentence. However, directed the running of sentence in three

different cases concurrently.

17. The purpose of imprisonment is not only to incarcerate the

accused person within four walls of the jail; the purpose is to reform the

convict. The aim of imprisoning a person is not merely to dump him in a

jail. The aim is equally to reform him during the period of incarceration

so that he may be brought back into the society as a peace- loving and

law-abiding citizen. The appellant herein has been in judicial custody

for more than Seven years which is long enough time to reform a

person. Therefore, further incarceration of the petitioner beyond seven

years would not serve any fruitful purpose. The appellant has already

undergone about 1 year 5 months actual sentence of 5 years. The

appellant is otherwise in judicial custody from 19.06.2013 and has

already been in jail for about 7 years. Thus, present case falls under four

corners of cases discussed above. Therefore, it would be in the interest

of justice as well as in the interest of family member of appellant who

are stated to be in very bad financial condition, this Court is of the

opinion that justice would be met if directed to run the sentences

concurrently as prayed for.

18. Accordingly, in view of the above facts and law discussed above,

I hereby direct that sentence awarded in SC No.52085/2016, while

maintaining conviction and sentence, shall run concurrently with the

sentence awarded in SC No.119/2014 which has been affirmed by this

Court in Crl.A. No.1018/2016.

19. In view of above order, while maintaining order on sentence and

conviction passed in SC No.52085/2016 by the Trial Court, I hereby

allow the present application.

Crl.A.611/2018

20. In view of the order passed in Crl.M.A.40714/2019, present

appeal is dismissed.

Crl.M.B.5926/2020

21. In view of the order passed in Crl.M.A.40714/2019 &

Crl.A.611/2018, present application has become infructuous and the

same is, accordingly, dismissed.

(SURESH KUMAR KAIT) JUDGE JUNE 12, 2020 ab