Punjab-Haryana High Court
Brij Mohan@ Brijesh vs State Of Haryana on 15 April, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:049662
2024:PHHC:049662
CRM-M-9179-2020 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-9179-2020
Date of Decision: 15.04.2024
BRIJ MOHAN @ BRIJESH
... Petitioner
Versus
STATE OF HARYANA
...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. V.S. Rana, Advocate
for the petitioner.
Mr. Kanwar Sanjiv Kumar, Asstt. A.G., Haryana.
****
JASJIT SINGH BEDI, J.
The prayer in the present petition under Section 482 Cr.P.C.
read with Section 427(1) Cr.P.C. is for the issuance of directions that the
sentence awarded vide judgment and order dated 24.07.2006 in FIR No.422
dated 24.11.1999 registered under Sections 307, 341, 34 IPC at Police Station
Sadar Palwal, District Faridabad be ordered to concurrently with the
conviction and sentence in the Trial emanating out of FIR No.376 dated
22.09.2000 registered under Sections 302, 34 IPC at Police Station Sadar
Palwal, District Palwal.
2. The petitioner was convicted and sentenced in the following
cases:-
Sr. FIR No. dated U/s P.S. Sentence Date of Name of Court
No. sentence
1. FIR No.422 307, 341, Sadar 6 years 24.7.06 ASJ Faridabad
dt. 24.11.99 34 IPC Palwal
2. FIR No.376 302, 34 Sadar Life 1.11.06 ASJ Faridabad
dt. 22.9.2000 IPC Palwal imprisonment
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3. FIR No.374 14, 149, Sadar Life 30.1.07 ASJ Faridabad
dt. 1.10.01 302, 307, Palwal imprisonment
120-B
IPC and
25 Arms
Act
3. The petitioner filed an appeal No.1816-SB-2006 in FIR No.422
dated 24.11.1999 which is still pending adjudication. As against the
convictions in FIR No.376 dated 22.09.2000 and FIR No.374 dated
01.10.2001, he filed CRA-D-182-DB-2007 and CRA-D-398-DB-2007
respectively which were dismissed by this Court.
4. The sentence awarded in the Trial emanating out of FIR No.374
dated 01.10.2001 U/s 148, 149, 302 IPC, P.S. Sadar Palwal was ordered to
run concurrently with the sentence awarded in the Trial emanating out of FIR
No.376 dated 22.09.2000 U/s 302/34 IPC, P.S. Sadar Palwal, District Palwal
vide judgment dated 12.02.2017 passed by this Court in CRWP No.1310 of
2015.
5. Now the instant petition has been filed seeking the concurrent
running of sentences in the conviction recorded in the Trial emanating out of
FIR No.422 dated 24.11.1999 and that recorded in FIR No.374 dated
01.10.2001.
6. The learned counsel for the petitioner contends that in terms of
Section 427(1) Cr.P.C. this Court could direct that the subsequent sentence
would run concurrently with the previous sentence. In case, the discretion
was not exercised by this Court, the petitioner would suffer irreparable loss
and injustice. Reliance is placed on the judgments in the cases of Sher Singh
Versus State of M.P., 1989(1) R.C.R. (Criminal) 696 and Joginder Singh
Versus State of Punjab, 1996(3) R.C.R. (Criminal) 74.
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7. On the other hand, the learned State counsel contends that while
exercising powers under Sections 427(2) Cr.P.C. this Court had already
directed the concurrent running of sentences in Trials emanating out of FIR
No.376 dated 22.09.2000 and FIR No.374 dated 01.10.2001. Section 427(2)
Cr.P.C. was in the nature of a positive mandate where this Court had no
discretion but to order concurrent running of sentences in each case of life
imprisonment. On the contrary, as regards Section 427(1) Cr.P.C., the
discretion lay with the Court as to whether thought it fit to order the
subsequent sentence to run concurrently with previous sentence. As
convictions had been recorded for different offences by different Courts on
different dates and the offences in question being under Sections 307 IPC and
302 IPC respectively which were of a heinous nature this Court ought not to
exercise its discretion under Section 427(1) Cr.P.C. to order the sentences to
run concurrently. Reliance is placed on the judgments in the case of Mohd.
Akhtar Hussain alias Ibrahim Ahmed Bhatti Versus Assistant Collector of
Customs (Prevention), Ahmedabad & others, 1988(4) SCC 183.
8. The learned counsel for the State further contends that it was the
duty of the Court to impose such punishment that would have the effect of
deterring other potential criminals and must also be appropriate befitting the
crime which in the present case is attempt to murder. Reliance is placed on
the judgments in the cases of Akram Khan Versus State of West Bengal,
2012(1) R.C.R. (Criminal) 168, Mulla & Another Versus State of U.P., 2010
AIR (Supreme Court) 342, State of Rajasthan Versus Gajendra Singh,
2008(3) R.C.R. (Criminal) 943 and State of Karnataka Versus Sharanappa
Basnagouda Aregoudar, 2002(2) R.C.R. (Criminal) 271.
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9. I have heard the learned counsel for the parties.
10. Before proceeding further in the matter, it would be apposite to
examine Section 427 of the Code of Criminal Procedure, 1973 and the same
is reproduced hereineblow:-
Section 427 of the Code of Criminal Procedure, 1973
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. Section 427(2) Cr.P.C. is in the nature of a positive mandate to
the Court that it shall in all cases order sentences to run concurrently in a
case where the first sentence is of life and the second sentence is for a fixed
term or for life. As regards Section 427(1) Cr.P.C. the discretion lies with the
Court to order the sentences in two cases to run concurrently in those cases
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where the first conviction is for a sentence other than life as in the present
case.
12. As regards the judgments referred to by the petitioner, in
Joginder Singh (supra), the petitioner/accused therein was tried separately in
five cases before the same Court under Section 409 IPC and was convicted in
each of the five cases by a separate judgment on the same date and awarded a
substantive sentence of one year in each case. It was in that scenario that the
Court held that the sentences in each case were to run concurrently. In the
case of Sher Singh (supra), a Full Bench of the Madhya Pradesh High Court
held that the High Court in exercise of its power under Section 482 Cr.P.C.
read with Section 427(1) Cr.PC. could at any stage order sentences to run
concurrently.
13. As against these judgments, the Hon'ble Supreme Court in the
case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti (supra), held as
under:-
"9. Section 427 Criminal Procedure Code, 1973
incorporates the principle of sentencing an offender who is
already undergoing a sentence of imprisonment. The
relevant portion of the Section reads:
"427.(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. xx xx xx"
10. The Section relates to administration of criminal justice
and provides procedure for sentencing. The sentencing court
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is, therefore, required to consider and make an appropriate
order as to how the sentence passed in the subsequent case
is to run Whether it should be concurrent or consecutive?
11. 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.
12. In this appeal, the primary challenge to the sentence is
based on assumption that the two cases against the
appellant, under the Gold (Control) Act, and the Customs
Act pertain to the same subject matter. It is alleged that the
appellant was prosecuted under the two enactments in
respect of seizure of 7000 tolas of gold. On this basis,
reference is also made to Section 428 Criminal Procedure
Code, 1973 claiming set off in regard to the period of
imprisonment already undergone by the appellant.
13. The submission, in our opinion, appears to be
misconceived. The material produced by the State
unmistakably indicates that the two 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 7000 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 should be
consecutive and not concurrent.
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(emphasis supplied)
14. As regards imposition of sentence the Hon'ble Supreme Court
has held as under:-
In Akram Khan (supra) it was held as under:-
"20. Now, we have to see whether the sentence imposed by
the trial Court and confirmed by the High Court is
appropriate or not? We have already extracted Section 364A
in the earlier paras which stipulates that if the prosecution
establishes beyond doubt that the kidnapping was for
ransom, the sentence provided in this Section is death or
imprisonment for life and also be liable to fine.
21. In Mulla and Another v. State of Uttar Pradesh 2010(2)
RCR (Criminal) 176 : 2010(2) RAJ (R.A.J.) 54 : (2010) 3
SCC 508, after considering various earlier decisions, this
Court held as under:-
"67. It is settled legal position that the punishment
must fit the crime. It is the duty of the court to impose
proper punishment depending upon the degree of
criminality and desirability to impose such
punishment. As a measure of social necessity and also
as a means of deterring other potential offenders, the
sentence should be appropriate befitting the crime."
We fully endorse the above view once again.
(emphasis supplied)
In Mulla & Another (supra) it was held as under:-
"42. It is settled legal position that the punishment must fit
the crime. It is the duty of the Court to impose proper
punishment depending upon the decree of criminality and
desirability to impose such punishment. As a measure of
social necessity and also as a means of deterring other
potential offenders, the sentence should be appropriate
befitting the crime.
(emphasis supplied)
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In State of Rajasthan (supra) it was held as under:-
13. Therefore, undue sympathy to impose inadequate
sentence would do more harm to the justice system to
undermine the public confidence in the efficacy of law and
society could not long endure under such serious threats. It
is, therefore, the duty of every court to award proper
sentence having regard to the nature of the offence and the
manner in which it was executed or committed etc. This
position was illuminatingly stated by this Court in Sevaka
Perumal etc. v. State of Tamil Nadu, 1991(2) RCR
(Criminal) 427 .
14. The criminal law adheres in general to the principle of
proportionality in prescribing liability according to the
culpability of each kind of criminal conduct. It ordinarily
allows some significant discretion to the Judge in arriving at
a sentence in each case, presumably to permit sentences that
reflect more subtle considerations of culpability that are
raised by the special facts of each case. Judges in essence
affirm that punishment ought always to fit the crime; yet in
practice sentences are determined largely by other
considerations. Sometimes it is the correctional needs of the
perpetrator that are offered to justify a sentence. Sometimes
the desirability of keeping him out of circulation, and
sometimes even the tragic results of his crime. Inevitably
these considerations cause a departure from just desert as
the basis of punishment and create cases of apparent
injustice that are serious and widespread.
15. Proportion between crime and punishment is a goal
respected in principle, and in spite of errant notions, it
remains a strong influence in the determination of sentences.
Even now for a single grave infraction drastic sentences are
imposed. Anything less than a penalty of greatest severity for
any serious crime is thought then to be a measure of
toleration that is unwarranted and unwise. But in fact, quite
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apart from those considerations that make punishment
unjustifiable when it is out of proportion to the crime,
uniformly disproportionate punishment has some very
undesirable practical consequences.
16. After giving due consideration to the facts and
circumstances of each case, for deciding just and
appropriate sentence to be awarded for an offence, the
aggravating and mitigating factors and circumstances in
which a crime has been committed are to be delicately
balanced on the basis of really relevant circumstances in a
dispassionate manner by the Court. Such act of balancing is
indeed a difficult task. It has been very aptly indicated
in Dennis Councle Mc Gautha v. State of California, 402 US
183 : 28 L.D. 2d 711 that no formula of a foolproof nature is
possible that would provide a reasonable criterion in
determining a just and appropriate punishment in the
infinite variety of circumstances that may affect the gravity
of the crime. In the absence of any foolproof formula which
may provide any basis for reasonable criteria to correctly
assess various circumstances germane to the consideration
of gravity of crime, the discretionary judgment in the facts of
each case, is the only way in which such judgment may be
equitably distinguished.
17. The object should be to protect the society and to deter
the criminal in achieving the avowed object to law by
imposing appropriate sentence. It is expected that the Courts
would operate the sentencing system so as to impose such
sentence which reflects the conscience of the society and the
sentencing process has to be stern where it should be.
18. Imposition of sentence without considering its effect on
the social order in many cases may be in reality a futile
exercise. The social impact of the crime, e.g. where it relates
to offences against women, dacoity, kidnapping,
misappropriation of public money, treason and other
offences involving moral turpitude or moral delinquency
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which have great impact on social order, and public interest,
cannot be lost sight of and per se require exemplary
treatment. Any liberal attitude by imposing meager
sentences or taking too sympathetic view merely on account
of lapse of time in respect of such offences will be result-wise
counter productive in the long run and against societal
interest which needs to be cared for and strengthened by
string of deterrence inbuilt in the sentencing system.
(emphasis supplied)
In State of Karnataka (supra) it was held as under:-
6. We are of the view that having regard to the serious
nature of the accident, which resulted in the death of four
persons, the learned Single Judge should not have interfered
with the sentence imposed by the court below. It may create
and set an unhealthy precedent and send wrong signals to
the courts which have to deal with several such accident
cases. If the accused are found guilty of rash and negligent
driving, courts have to be on guard to ensure that they do
not escape the clutches of law very lightly. The sentence
imposed by the courts should have deterrent effect on
potential wrong-doers and it should commensurate with the
seriousness of the offence. Of course, the Courts are given
discretion in the matter of sentence to take stock of the wide
and varying range of facts that might be relevant for fixing
the quantum of sentence, but the discretion shall be
exercised with due regard to larger interest of the society
and it is needless to add that passing of sentence on the
offender is probably the most public face of the criminal
justice system.
(emphasis supplied)
15. Coming back to the facts of the instant case, it is apparent that
the petitioner was initially convicted in FIR No.422 dated 24.11.1999 under
Sections 307, 341, 34 IPC Police Station Sadar Palwal, District Faridabad for
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a period of six years by the Court of Addl. Sessions Judge, Faridabad.
Thereafter, he was convicted in FIR No.376 dated 22.09.2000 U/s 302/34
IPC, P.S. Sadar Palwal, District Palwal. Subsequently, he was convicted in
FIR No.374 dated 01.10.2001 U/s 148, 149, 302 IPC, P.S. Sadar Palwal. As
FIR Nos.376 and 374 were cases in which he was sentenced to imprisonment
for life this Court had exercised its powers in terms of Section 427(2) Cr.P.C.
and had ordered that the sentences would run concurrently. However, in the
instant case, the petitioner seeks the concurrent running of sentences in terms
of Section 427(1) Cr.P.C. The exercise of powers under Section 427(1)
Cr.P.C. are the subjective satisfaction of the Court based on certain
parameters. In the case of Joginder Singh (supra), the power was exercised
as the accused therein had been convicted for the same offence in five
different cases by separate judgments on the same day and by the same
Court. It was in that situation that the power had been exercised to order the
concurrent running of sentences. However, the instant case is distinguishable
on facts and the judgment in Mohd. Akhtar Hussain alias Ibrahim Ahmed
Bhatti (supra) would apply on all fours as each case is totally distinct and the
offences do not arise out of the same transaction. Apparently, in FIR No.422
dated 24.11.1999 the conviction was recorded on 19.07.2006/24.07.2006 by
the Court of Addl. Sessions Judge, Faridabad. The subsequent FIR Nos.376
and 374 were both under Section 302 IPC and lead to separate convictions by
separate Courts of Addl. Sessions Judge, Faridabad. There is absolutely no
justifiable reason for this Court to exercise its discretionary power under
Section 427(1) Cr.P.C. as the offences in question in each case are completely
different do not arise out of the same transaction and are otherwise heinous
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offences. In fact, if the argument was to be accepted that in every case the
Court ought to exercise its powers under Section 427(1) Cr.P.C. then there
would be multiple convictions for varying periods of time by different Courts
for different offences and the Courts would be obligated to order concurrent
running of sentences which defeats the very purpose of imposition of a
sentence which must be not only deterrent in nature but must be befitting the
crime. A sentencing policy which is unusually mild and sympathetic in its
operation would have a disastrous effect on society and would do more harm
than good to public confidence in the efficacy of law. It is therefore, the duty
of every Court to award appropriate sentence having regard to the nature of
the offence. Therefore, in cases where a person is a serial offender and that
too for committing heinous crimes, the Courts would do well in not wanting
to exercise their powers under Section 427(1) Cr.P.C. to order concurrent
running of sentences.
16. In view of the above discussion, I find no merit in the present
petition. Therefore, the same stands dismissed.
(JASJIT SINGH BEDI)
JUDGE
15.04.2024
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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