Dushyant Kumar vs State Of Himachal Pradesh & Ors
2025 Latest Caselaw 694 HP

Himachal Pradesh High Court

Dushyant Kumar vs State Of Himachal Pradesh & Ors on 9 May, 2025

( 2025:HHC:13306 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No.1258 of 2024 Reserved on: 25.04.2025 Date of Decision: 09.05.2025

Dushyant Kumar ...Petitioner Versus

State of Himachal Pradesh & Ors. ...Respondents

Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Devinder K. Sharma, Advocate, vice Mr. C.N. Singh, Advocate.

For the Respondents/State: Mr. Lokender Kutlehria, Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for issuance

of an appropriate order or directions to the respondents that the

sentence awarded to the petitioner in different cases under Section

138 of the Negotiable Instruments Act ("in short NI Act) be ordered

to run concurrently. It has been asserted that the petitioner was

facing the trials in different cases registered against him under

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Section 138 of the N.I. Act, in the Court of learned Judicial

Magistrate, Karsog, District Mandi (H.P) and in the Court of

learned Chief Judicial Magistrate, Shimla (H.P), respectively and

after conclusion of the trial, the petitioner was convicted by the

respective Courts. The details of the cases are as under: -

Sr. Case Nos & Title Sentence imposed by the Respective No. Courts/dated

01. Case No.70/2021 title Two months' simple imprisonment Uttam Singh Vs. and compensation to the tune of Dushyant Kumar ₹3,25,000/- (JMIC) (Karsog) dated 26.072023.

02. Case No.68/2022 Two months' simple imprisonment Title Dola Ram Vs. and compensation to the tune of Dushyant Kumar. ₹2,10,000/- (JMIC) (Karsog) dated 04.01.2024.

03. Case No.44/2021 Six months' simple imprisonment Title Nand Lal Vs. and compensation to the tune of Dushyant Kumar. ₹41,50,000/- (JMIC) Karsog dated 04.01.2024.

04. Case No.104/2022 Three months' simple imprisonment Title Joginder Pal Vs. and compensation to the tune of Dushyant Kumar. ₹6,00,000/- (JMIC) (Karsog) dated 20.07.2024.

05. Case No.104/2020 Two months' simple imprisonment Title Jagat Ram Vs. and compensation to the tune of Dushyant Kumar. ₹3,70,000/- (JMIC) (Karsog) dated 19.06.2024.

06. Case No. 49/2021 One year's simple imprisonment and Title Gursaran Pal Vs. compensation to the tune of Kirna Kothi Company ₹15,00,000/- (CJM), Shimla dated through its 04.04.2024.

proprietor, Dushyant Kumar.

07. Case No.104/2021 Six months' simple imprisonment Title Kishore Kumar and compensation to the tune of

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Sr. Case Nos & Title Sentence imposed by the Respective No. Courts/dated Vs. M/s. Jai Kirna ₹5,50,000/-. In case of default, two Kothi Fruit Company months simple imprisonment (JMIC) through its (Shimla) dated 08.08.2024.

Proprietor, Dushyant Kumar.

2. The petitioner did not assail the judgments passed by

different Courts, and they have attained finality. The petitioner has

completed the sentence mentioned in the above table in Serial Nos

1, 2, 4 & 5, and the remaining sentence as imposed by the Court

below is required to be completed as per the warrant of

imprisonment issued by the concerned Court. The petitioner was in

the business of transportation, sale and purchase of Anardana. He

could not pay the money because he did not receive it from the

buyers/traders. The indefinite incarceration of the petitioner would

minimise his chances of earning money. Therefore, it was prayed

that the present petition be allowed and the sentences of

imprisonment awarded by different Courts be ordered to run

concurrently.

3. The State has opposed the present petition by filing a

reply asserting that the sentences are to be executed as per the

warrant issued by the competent Court of law. The petitioner was

convicted by different Courts in seven different cases. The

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petitioner has completed the sentence in cases mentioned at Serial

Nos. 1 and 2, and he is undergoing the sentence mentioned at Serial

No.3. The sentences in the other cases will commence after the

completion of the sentence in the earlier case.

4. I have heard Mr. Devinder K. Sharma, learned vice

counsel representing the petitioner and Mr. Lokender Kutlehria,

learned Additional Advocate General, for the respondents-State.

5. Mr. Devinder K. Sharma, learned vice counsel for the

petitioner, submitted that the Court has power under Section 482

of Cr. P.C. to order that the sentences imposed by the Courts in

different cases be ordered to run concurrently. The Court had

already ordered the concurrent running of the sentences in Cr.MMO

No.113 of 2023 titled Mohar Singh Vs. State of Himachal Pradesh

decided on 02.11.2023 & Cr.MMO No.107 of 2024, titled Laxman Dass

Vs. State of Himachal Pradesh & Anr., decided on 06.09.2024. Hence,

he prayed that the present petition be allowed and the various

sentences be ordered to run concurrently.

6. Mr. Lokender Kutlehria, learned Additional Advocate

General for the respondent-State, submitted that this Court has

already held in Cr. MMO No. 1268 of 2023 titled Balbir Chand Vs. State

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of Himachal Pradesh & Ors., decided on 21.08.2024, that the

sentences awarded in different cases pertaining to different

transactions having taken place at different places cannot be

ordered to run concurrently. The petition is misconceived, and he

prayed that the present petition be dismissed.

7. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

8. It was laid down by the Division Bench of this Court in

Sushil Kumar @ Shashi versus State of Himachal Pradesh, 2014 (1)

Shimla Law Cases 214 that when a person was convicted for the

commission of two offences in separate trials in respect of

different transactions, the Court cannot pass a direction that

sentences should run concurrently. It was observed:

"12. Their Lordships of the Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad and another, [(1988) 4 SCC 183], while taking note of Section 427 of the Code of Criminal Procedure observed that the crime committed by the accused is relevant for measuring the sentence, but the maximum sentence awarded in one case against the same accused should also be kept in mind while awarding the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. The totality principle has been accepted as a

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correct principle for guidance. In para 10, the Supreme Court observed as under:

"The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two 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 two offences are quite different."

13. In M.R. Kudva v. State of A.P., [(2007) 2 SCC 772], the Supreme Court while taking note of Section 427 of the Code of Criminal Procedure held that when the provision of this Section is not involved in the original cases or appeals such an application/petition thereafter is not maintainable and the High Court has no jurisdiction to entertain such a request. The said provision cannot be applied in a separate and independent proceeding. The reliance can also be placed on another judgment of the Supreme Court in State of Punjab v. Madan Lal, [(2009) 5 SCC 238] wherein the majority view in State of Maharashtra v. Najakat, [(2001) 6 SCC 311] has been relied upon.

14. In the instant case, petitioner Sushil Kumar was convicted for two offences in separate trials for attempted murder of a person and murdering another person at two different times. Both these transactions were different in time and separate, and were also not interconnected with each other. Therefore, we are of the opinion that this Court cannot interfere with the sentences passed in two separate cases, tried and decided separately under its inherent jurisdiction, therefore, the petition is dismissed."

9. This judgment was noticed in Balbir Chand (supra).

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10. It was submitted that the matter is required to be

referred to the Larger Bench in view of the different interpretation

given by Coordinate Benches in Mohar Singh (supra) and Laxman

Das (supra). This submission cannot be accepted. It was laid down

by the Hon'ble Supreme Court in Central Board of Dawoodi Bohra

Community v. State of Maharashtra, (2005) 2 SCC 673: 2005 SCC (Cri)

546: 2005 SCC (L&S) 246: 2004 SCC OnLine SC 1642 that a Bench of

lesser quorum cannot disagree or dissent from the views taken by a

Bench of larger quorum and in case of doubt it can invite the

attention of the Hon'ble the Chief Justice. It was observed at page

682:

12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the abovesaid decisions, we would like to sum up the legal position in the following terms:

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength. (2) [Ed.: Para 12(2) corrected vide Official Corrigendum No. F.3/Ed.B.J./21/2005 dated 3-3-2005.] A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt, all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration.

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It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) [Ed.: Para 12(3) corrected vide Official Corrigendum No. F.3/Ed.B.J./7/2005 dated 17-1-2005.] The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh [(1989) 2 SCC 754] and Hansoli Devi [(2002) 7 SCC 273].

11. It was laid down by Hon'ble Supreme Court in Pradip

Chandra Parija v. Pramod Chandra Patnaik (2002) 1 SCC 1, that a

Smaller Bench is bound by the decision of the Larger Bench and if

the Smaller Bench thinks that judgments of Larger Bench is so

incorrect that it cannot be followed in any circumstance, only then

the matter can be referred to a Larger Bench. It was observed: -

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"5. The learned Attorney-General submitted that a Constitution Bench judgment of this Court was binding on smaller Benches and a judgment of three learned Judges was binding on Benches of two learned Judges -- a proposition that learned counsel for the appellants did not dispute. The learned Attorney-General drew our attention to the judgment of a Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India [(1992) 4 SCC 97] where it has been said that "no coordinate Bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another coordinate Bench" (SCC p.

98, para 5). The learned Attorney-General submitted that the appropriate course for the Bench of two learned Judges to have adopted, if it felt so strongly that the judgment in Nityananda Kar [1991 Supp (2) SCC 516: 1992 SCC (L&S) 177:

(1992) 19 ATC 236: 1990 Supp (2) SCR 644] was incorrect, was to make a reference to a Bench of three learned Judges. That Bench of three learned Judges, if it also took the same view of Nityananda Kar [1991 Supp (2) SCC 516: 1992 SCC (L&S) 177:

(1992) 19 ATC 236: 1990 Supp (2) SCR 644], could have referred the case to a Bench of five learned Judges.

6. In the present case, the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demand that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances, can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified."

( 2025:HHC:13306 )

12. Therefore, this Court is bound by the decision of the

Division Bench of this Court, and a reference can only be made to a

Larger Bench if the decision is so incorrect that it cannot be

followed in any circumstance. There is no such reason, and this

Court itself has followed the decision of the Division Bench and

Coordinate Benches of this Court as well as the judgments of the

Hon'ble Supreme Court in Balbir Chand (supra) to hold that the

benefit cannot be claimed in respect of different transactions.

Hence, the prayer made on behalf of the petitioner that the matter

be referred to a Larger Bench cannot be accepted.

13. In the present case, the petition itself mentioned that

the petitioner was convicted in separate cases regarding different

cheques and by different Courts. Therefore, sentences cannot be

ordered to run concurrently as per the judgment in Balbir Chand

(supra). Hence, the present petition fails, and the same is

dismissed.

(Rakesh Kainthla) Judge 09th May, 2025 (Shamsh Tabrez)