Jharkhand High Court

Ramesh Kumar @ Sintu Aged About- 35 Years ... vs The State Of Jharkhand on 13 February, 2025

Author: Anil Kumar Choudhary

Bench: Anil Kumar Choudhary

           IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         W.P. (Cr.) No.110 of 2025
                                   ------

Ramesh Kumar @ Sintu aged about- 35 years s/o- Lalu Singh, R/o- Bhanpur, P.O- Bhanpur, P.S- Dinara, Dist- Rohtas, Bihar.

                                                           ...            Petitioner
                                             Versus
            1. The State of Jharkhand

2. Superintendent of Jail, Mandal Jail, P.O. and P.S. Dhanbad, District Dhanbad.

                                                       ...              Respondents
                                              ------
             For the Petitioner         : Mr. Soumitra Baroi, Advocate
                                          Mr. Karbir, Advocate
                                          Mr. Prashant Kr. Singh, Advocate
             For the State              : Mr. Achyut Keshav, AAG-V
                                               ------
                                         PRESENT
                  HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY


By the Court:-     Heard the parties.

2. This Writ Petition (Cr.) has been filed invoking the jurisdiction of this

Court under Article 226 of the Constitution of India with a prayer for quashing

the letter No.544 of 2024 dated 19.09.2024 issued by the learned Judicial

Magistrate 1st Class, Dhanbad, a copy of which has been annexed as Annexure-

5 whereby and where under the learned Judicial Magistrate has modified the

sentence awarded to the petitioner by way of a letter to the Superintendent of

Jail, Mandal Jail, Dhanbad.

3. The brief facts of the case is that the petitioner has been convicted in C.P.

Case No.522 of 2017 passed by the learned Judicial Magistrate 1st Class,

Dhanbad for having committed the offence punishable under Section 138 of the

Negotiable Instruments Act. The writ petitioner has been sentenced to a

substantive sentence of simple imprisonment of 10 months. Further a fine of

Rs.14,00,000/- has also been imposed upon the petitioner and it has been

ordered that in default of fine, the petitioner has to undergo imprisonment for

10 months but even though only a single offence was involved for which the

petitioner has been convicted, in the tabular chart incorporated in the order of

sentence by the learned Magistrate, under the heading "sentence to run" the

word "concurrently" has been mentioned. The judgment of the conviction and

order of sentence passed by the learned Judicial Magistrate 1st Class, Dhanbad

in the said C.P. Case was challenged by the petitioner before the learned

Sessions Judge, Dhanbad by filing Criminal Appeal No.146 of 2022. The

learned Sessions Judge, Dhanbad, vide judgment dated 31.03.2023 in the said

Criminal Appeal No.146 of 2022, dismissed the criminal appeal. Vide letter

No.2671/Jail, Dhanbad dated 18.09.2024, the copy of which has been annexed

as Annexure-4 of this Writ Petition (Cr.), the In-Charge Superintendent,

Mandal Jail, Dhanbad wrote a letter to the learned Judicial Magistrate 1st Class,

Dhanbad or its successor court intimating therein that though the concurrent

running of sentence arises when there are sentences imposed by a court

convicting any accused, in respect of more than one offences, therefore, the in-

charge Superintendent of Mandal Jail sought clarification in this matter.

4. In response to the said letter of the Superintendent of Mandal Jail, the

learned Magistrate intimated by its letter, the copy of which has been annexed

as Annexture 5 of this writ petition, to the In-charge Superintendent of Mandal

Jail, Dhanbad that because of typing mistake the word 'consecutively' has been

written as 'concurrently' and the imprisonment to be undergone in default of

payment of fine will be in excess of the substantive sentence as per Section 64

of the Indian Penal Code and the words 'shall' used in Section 64 of the Indian

Penal Code makes it mandatory for convict to undergo the imprisonment in

default of payment of fine consecutively. Hence, it was clarified that the

sentence of default fine of 10 months shall be in addition to the sentence of 10

months awarded under Section 138 of the Negotiable Instruments Act to

convict i.e. this Writ Petitioner.

5. Learned counsel for the petitioner relies upon the judgment of the

Hon'ble Supreme Court of India in the case of Sunita Jain vs. Pawan Kumar

Jain & Others reported in (2008) 2 SCC 705, para-30 to 32 of which reads as

under:-

"30. To us, the learned counsel for the appellant is right that in substance and in reality, the High Court has exercised power of review not conferred by the Code on a criminal court. Section 362 of the Code does not empower a criminal court to alter its judgment. It reads thus:

"362. Court not to alter judgment.--Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

31. The section makes it clear that a court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it.

32. No doubt, the section starts with the words "save as otherwise provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. But in absence of express power, alteration or modification of judgment or order is not permissible."

and submits that Section 362 of the Code of Criminal Procedure prohibits

a criminal court to alter or review its judgment or final order after it is signed

except to correct clerical or arithmetical error. Learned counsel for the

petitioner next submits that the learned Judicial Magistrate 1st Class, Dhanbad

has committed a grave error by modifying the sentence by the impugned letter

No.544 of 2024. It is next submitted that as it is a settled principle of law that a

judicial order can only be modified by way of another judicial order, the

learned Judicial Magistrate 1st Class, Dhanbad has committed a grave error by

modifying a judicial order by a letter that too which is administrative in nature

and by such an administrative letter, the learned Judicial Magistrate 1st Class,

Dhanbad committed a grave illegality by modifying the sentence imposed by

way of judicial order passed by the predecessor court. It is then submitted that

unless the impugned letter is quashed and set aside, the petitioner shall suffer

irreparable loss and injury. Hence, it is submitted that the prayer as prayed for

in this Writ Petition (Cr.) be allowed.

6. Learned AAG-V appearing for the State on the other hand vehemently

opposes the prayer of the petitioner. Learned AAG-V draws attention of this

court towards Section 31 of the Code of Criminal Procedure and submits that

the question of sentences running concurrently or consecutively arises only

when there is more than one sentence imposed in respect of two distinctive

penal provisions of law either in the same transaction or in the different

transactions but the undisputed fact remains that in the judgment of conviction

and order of sentence passed by the learned Judicial Magistrate 1st Class,

Dhanbad in connection with C.P. Case No.522 of 2017, only conviction has been

made in respect of the offence punishable under Section 138 of the Negotiable

Instruments Act and there is no involvement of any other offence punishable

under any penal provision for which, the writ petitioner has been convicted. It

is then submitted that, here is a case where the question of concurrent running

or consecutive running of the sentences does not arise; so, the word

'concurrently' appearing under the words "sentence to run', is obviously a

typographical error.

7. Learned AAG-V further draws attention of this court towards Section 64

of the Indian Penal Code and submits that it is the mandate of Section 64 of the

Indian Penal Code that the offender shall suffer imprisonment for a certain

term and such imprisonment shall be in excess of any other imprisonment to

which the convict may have been sentenced. So, the imprisonment to be

undergone by a convict for default in payment of fine is in excess of any other

sentence. It is then submitted that, therefore, there is no scope for concurrent

running of a substantive sentence and an imprisonment to be undergone by the

writ petitioner/convict for default of payment of fine of Rs.14,00,000/-

imposed in the concerned case. It is next submitted that, even if a clarification

is not given by the learned Magistrate, as the Jail Superintendent has

categorically mentioned the provisions of law in his letter and just for the sake

of clarification, the Superintendent of Jail has written a letter, the consequence

will be that the writ petitioner-convict has to suffer imprisonment for default of

payment of fine in excess of the substantive sentence. It is then submitted that

the ratio of the judgment of the Hon'ble Supreme Court of India in the case of

Sunita Jain vs. Pawan Kumar Jain & Others (supra) is not attracted to the facts

of the case because it is neither the case of the petitioner nor otherwise it is

alleged that the judgment of conviction and order of sentence which has been

passed by the learned Judicial Magistrate-1st Class, Dhanbad in C.P. Case

No.522 of 2017 has been altered or reviewed. It is then submitted that in the

concerned judicial record of C.P. Case No.522 of 2017 of the court of Judicial

Magistrate, the same judgment, the copy of which has been annexed as

Annexure-2 of this Writ Petition (Cr.), still exists; not a word of the same has

been changed; thus, by no stretch of imagination, keeping in view the fact that,

the judgment, the copy of which has been annexed as Annexure-2 of this Writ

Petition (Cr.) and indisputably the same judgement in toto very much exists in

the concerned judicial record, it can be said that the judgment has been

modified, altered or reviewed. Hence, it is submitted that in view of the settled

principle of law as the petitioner has to undergo imprisonment for an

additional period of 10 months for default in payment of fine of Rs.14,00,000/-

and such imprisonment is in addition to the substantive sentence of 10 months;

this Writ Petition (Cr.), being without any merit, be dismissed.

8. Having heard the submissions made at the Bar and after carefully going

through the materials available in the record, it is pertinent to mention here

that it is a settled principle of law as has been reiterated by the Hon'ble

Supreme Court of India in the case of Sharad Hiru Kolambe vs. State of

Maharashtra & Others reported in 2018 INSC 852, in para-13 of which the

Hon'ble Supreme Court of India has observed that if the term of the

imprisonment in default of payment of fine is a penalty which a person incurs

on account of non-payment of fine; the same is not a sentence in strict sense, as

imposition of such default sentence is completely different and qualitatively

distinct from a substantive sentence. In that case, the Hon'ble Supreme Court of

India approbated the judgment of the Gujarat High Court in the case of

Shahejadkhan Mahebubkhan Pathan vs. State of Gujarat to the effect that

"20. The principle laid down by the Hon'ble Apex Court in the decisions cited supra makes it crystal clear that imposition of the term of imprisonment in default of payment of fine is not a sentence and it is a penalty which a person incurs on account of non-payment of fine. It is also made clear that if such default sentence is imposed, undoubtedly, an

offender must undergo unless it is modified or varied in part or whole in the judicial proceedings. Therefore, there is no power for the Court to order the default sentences to run concurrently. The Hon'ble Apex Court also made it clear that when such a default sentence is imposed, a person is required to undergo imprisonment either because he is unable to pay the amount of fine or refuses to pay such amount."

The conclusion regarding concurrent running of default sentence was as under:

"18. It is relevant to state that there are provisions under the code, as pointed out earlier, to order the substantive sentences to run concurrently and the legislature specifically excluded such power to the Court in respect of ordering the default sentences to run concurrently. The Court cannot add or substitute any additional words to any particular provision of the Code. It is not for the Court to take up the work of legislation and the Court can only apply the provision contained under the Code as it is. It is well settled in a catena of decisions that the term of imprisonment in default of payment of fine cannot be deemed to be a sentence, but a penalty which is incurred on account of non-payment of fine."

and ultimately went on to hold as following in para-15 of the judgment in the

case of Sharad Hiru Kolambe vs. State of Maharashtra & Others which reads

as under:-

"15. In the circumstances, we reject the submission regarding concurrent running of default sentences, as in our considered view default sentences, inter se, cannot be directed to run concurrently. However, considering the financial condition of the appellant, a case is certainly made out to have a sympathetic consideration about the quantum of default sentence."

9. Now coming to the facts of the case, as has rightly been submitted by the

learned AAG-V; the question of sentences running concurrently arises only if

there are sentences for conviction in more than one penal provision of law

either in the same transactions or in different transactions. Now as already

indicated above, the petitioner has indisputably been convicted and sentenced

only for the offence punishable under Section 138 of the Negotiable

Instruments Act. Thus, in this case, the question of the sentence running

concurrently or consecutively does not arise.

10. In view of the settled principle of law in the case of Sharad Hiru

Kolambe vs. State of Maharashtra & Others (supra), the imprisonment to be

undergone for default in payment of fine being in excess of substantive

sentence and is different from the substantive sentence cannot run concurrently