Mohar Singh vs State Of Himachal Pradesh
2023 Latest Caselaw 17345 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No.113 of 2023 Reserved on : 03.08.2023 Decided on : 02.11.2023

Mohar Singh ...Petitioner

Versus

State of Himachal Pradesh ...Respondent

Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1

For the petitioner : Mr. Jagan Nath, Advocate. For the respondent : Mr. Mohinder Sharaick, Mr. H.S.

Rawat & Mr. Tejasvi Sharma, Additional Advocates General with Ms. Sunaina, Deputy Advocate General.

Virender Singh, Judge.

Petitioner­Mohar Singh has filed the present

petition, under Section 482 of the Code of Criminal

Procedure (hereinafter referred to as 'CrPC'), with the

prayer that the sentences awarded to him, by the various

Courts, under Section 138 of the Negotiable Instruments

Act (hereinafter referred to as the 'NI Act'), in 21 cases, may

kindly be ordered to be run concurrently.

Whether Reporters of local papers may be allowed to see the judgment? Yes.

2. The detail of the cases have been mentioned in

Annexure P­2, which is reproduced as under:­

Sr. Case No. & U/S Date of Sentence I D Sentence Remarks conviction Compensation No. Amount SI

1. 223-1/2013 22.02.2020 00 00 01 00 01 00 209000 Completed 21.03.2021 Reg.No.1292/13 with ID 01 month U/S 138 NI Act

2. 234-1/2013, 157- 01.10.2020 00 06 00 00 01 00 150000 Set off U/S 428 Cr.PC III/2013 Reg. against the sentence no.1304/2013 U/S (already undergone) 138 NI Act

3. 332-1/2013, 216- 01.10.2020 00 06 00 00 01 00 250000 Set off U/S 428 Cr.PC III/2013 REG against the sentence No.312/2015 u/s (already undergone) 138 of NI Act

4. 123-1/2018 Reg. 25.02.2021 00 09 00 00 01 00 200000 Executed on 20/01/2022 No.128/2018

5. 257-1/2013 Reg. 22.02.2020 00 00 01 00 01 00 198000 Executed on 12/06/2022

of N.I. Act

6. 108-01/2016 Reg. 01.10.2020 00 00 01 00 01 00 300000 Set off U/S 428 Cr.PC No.71/2016 U/S 138 against the sentence of NI Act (already undergone w.e.f.22/02/2020 to 01/10/2020)

7. 264-1/2013 Reg. 22.02.2020 00 00 01 00 01 00 198000 Undergoing w.e.f No.1316/2013 U/S 06/11/2022 138 NI Act

8. 295-1/2013, 192- 22.02.2020 00 00 01 00 01 00 203500 Pending III/2013 Reg.1322/2013 138 NI Act

9. 318-1/2013, 208- 22.02.2020 00 00 01 00 01 00 198000 Pending III/2018 Reg.1379/2013 U/S 138 NI Act

10. 333-I/2013, 217- 21.10.2021 00 01 00 00 01 00 192500 Pending III/2013 Reg.

No.778/2013

11. CNR No.HPMA-02- 18.01.2022 00 00 01 00 00 00 00 Undergone period as per 001326-2013, C.W-1704.21 to 25.06.21 Reg.No-565/2015 i.e. 02 months & 09 days Remainin sentence 09 months & 21 days.

12. CNR No.HPMA-02- 18.01.2022 00 00 01 00 00 00 00 Undergone period as per 001329-2013, C.W-1704.21 to 25.06.21 Reg.No-573/2015 i.e. 02 months & 09 days Remainin sentence 09 months & 21 days.

13. Regd. 15.06.2022 00 06 00 00 01 00 80000 Set off period as per No.1075/2013, court order i.e. No.611-III/17/13 01.12.2021 to 14.02.2021 i.e. 02 Months & 14 days Remaining Sentence 09 months 16 days

14. Regd. 15.02.2022 00 06 00 00 01 00 300000 Set off period as per No.1076/2013 court order i.e. 01.12.2021 to 14.02.2021 i.e. 02 Months & 14 days Remaining Sentence 09 months 16 days

15. Regd. 21.03.2022 00 06 00 00 01 00 90000 Pending No342/2014,Cno30 7-II18/13

16. Regd. 17.06.2022 00 06 00 00 02 00 70000 Set off period as per No.485/2016,Cno.- court order i.e. 143-III/2016 18.04.2022 to 16.06.2022 i.e. 01 Month & 28 days Remaining Sentence 11 months 02 days

17. 176-III/22/16 Reg. 17.06.2022 00 06 00 00 02 00 70000 Set off period as per No.540/2016 court order i.e. 31.05.2022 to 16.06.2022 i.e. 17 days Remaining Sentence 11 months 13 days

18. 323-III/2017/13 30.06.2022 00 06 00 00 02 00 100000 Pending reg.No.1185/2018

19. 141/2019 28.07.2022 00 06 01 00 00 00 120000 Pending

20. C.No.64/2020 28.07.2022 00 00 01 00 00 00 550000 Pending

21. C.No.142/2019 14.10.2022 00 06 01 00 00 00 100000 Pending

00 10 16 00 07 01 447900

SET OFF PERIOD 22 05 02 AFTER SET OFF 08 05 14

3. Petitioner has submitted that he is a senior

citizen and presently, he is 77 years of age. He has already

undergone three years imprisonment and in case his

remaining sentence is to be counted, then he will have to

undergo imprisonment for a period of 12 years, 3 months

and 9 days.

4. On the basis of the above facts, a prayer has

been made to allow the petition.

5. When put to notice, the factual position, as

mentioned in the petition, has not been disputed, but it

has been submitted that the petitioner is facing one more

case under Section 138 of the NI Act, which is still

pending.

6. According to the respondent­State, the

remaining sentence, after set off period, is still 20 years 7

months and 13 days.

7. It is the specific case of the State that the

petitioner has not paid the fine amount, in the aforesaid

cases and he has, although, served the substantive

sentence in six cases, but he has to undergo, the further

sentence, in all those six cases, in lieu of the fine.

8. Learned counsel for the petitioner has relied

upon the decision of Hon'ble Supreme Court in State of

Punjab versus Madan Lal, (2009) 5 Supreme Court

Cases, 238, V.K. Bansal versus State of Haryana &

Another, (2013) 7 Supreme Court Cases, 211, Anil

Kumar Versus State of Punjab (2017), 5, Supreme

Court Cases, 53, Nagaraja Rao Versus Central Bureau

of Investigation, (2015) 4 Supreme Court Cases, 302,

Benson versus State of Kerala, (2016) 10 Supreme

Court Cases, 307.

9. As per the stand taken in the reply, filed by the

State, the petitioner was sentenced in 21 cases under

Section 138 of NI Act and one case is stated to be still

pending. It has not been disputed in these cases that the

applicant is senior citizens, aged about 77 years.

10. As per the documents placed on record, as well

as, keeping in view the stand of the parties, one thing is

not disputed, in this case, that petitioner had been

convicted in 21 cases, filed under Section 138 of the NI Act.

11. The petitioner had already undergone the

substantive sentence imposed, in the cases, at serial No.1

to 6, as reproduced in para 2, whereas, he is undergoing

the sentence, in case at serial No.7, and the sentence, in

cases at Serial No.8 to 21 are still pending. In the chart

submitted by the Deputy Superintendent Jail, District Jail

Mandi, in the remarks column, the remaining sentence of

the petitioner has been mentioned.

12. As per the stand, after set off period, the

remaining substantive sentence of the petitioner is 20

years 7 months and 13 days.

13. Hon'ble Apex Court in V.K. Bansal versus

State of Haryana & Another, (2013) 7 Supreme Court

Cases, 211, has held that the powers under Section 427(1)

Cr.PC, should be exercised judiciously and not

mechanically. Relevant paragraph 16 is reproduced, as

under:­

"16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor."

14. Similarly, the Hon'ble Apex Court in Anil

Kumar versus State of Punjab, (2017) 5 Supreme Court

Case, 53, has elaborately discussed the provisions of

Section 427 Cr.PC. Relevant paragraphs 4 to 7 are

reproduced, as under:­

"4. The power conferred on the Court under Section 427 Cr.P.C. to order concurrent sentence

is discretionary. Section 427 Cr.P.C. reads as under:­ "S.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."

5. In terms of sub­section (1) of Section 427, if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture

of such discretion, presupposes that such discretion be exercised by the Court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case.

6. In V.K. Bansal v. State of Haryana and Anr. (2013) 7 SCC 211, it was held by this Court as under:

"It is manifest from Section 427 (1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises." This Court then went on to club various crimes in respect of which sentences were imposed upon the appellant therein in three groups.

7. After referring to V.K. Bansal's case, in Benson v. State of Kerala (2016) 10 SCC 307: 2016 (9) SCALE 670, this Court directed the substantive sentences imposed on the appellant Benson to run concurrently. The appellant therein was convicted for the

offences punishable under Section 379 and Section 414 read with Section 34 IPC in at least eleven cases. By a separate judgment, the appellant was convicted and sentenced in each of the aforesaid cases and total length of sentences in aggregate was around nineteen years."

15. Keeping in view the age of the petitioner and

considering the fact that he is undergoing sentence in

various cases, this Court is of the view that ends of justice

would be met, if the substantive sentence, in cases, at

serial No.7 to 21, are ordered to be run concurrently.

16. It is further clarified that in view of the decision

of Hon'ble apex Court in Vicky @ Vikas versus State

(Govt. of NCT of Delhi) 2020 (3) SCALE 40, the benefit of

the 'concurrent running of sentences' is granted to the

petitioner, with regard to the substantive sentence and not

the sentence, which has been inflicted, upon him, in

default of payment of fine.

17. With these observations, the petition stands

allowed. Pending application(s), if any, shall also stand

disposed of.

                                        ( Virender Singh )
November 02, 2023(ps)                          Judge