Madhya Pradesh High Court
Nasir Mohammad@ Nasir Rajpur vs The State Of Madhya Pradesh on 2 September, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No. 9192 of 2023
NASIR MOHAMMAD @ NASIR RAJPUT
Versus
THE STATE OF MADHYA PRADESH
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Appearance
Shri Pradeep Kumar Naveria - Advocate for the appellant.
Shri Ravendra Shukla - Deputy Government Advocate for the respondent/State.
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Reserved on : 21.08.2024
Pronounced on : 02.09.2024
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This criminal appeal having been heard and reserved for judgment,
coming on for pronouncement this day, Justice Achal Kumar Paliwal
pronounced the following:
JUDGMENT
Appellant has filed this appeal under Section 374(2) of the Code of Criminal
Procedure, 1973 (In short ” Cr.P.C.) against the judgment dated 28.06.2023 passed
by VIII Additional Sessions Judge, Sagar in Sessions Trial No. 181/2021, whereby
trial Court has convicted appellant under Section 420(34 counts) of IPC and
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sentenced to undergo R.I. for 5 years for each count and fine of Rs. 10,000/- in
each count and Section 193 of IPC and sentenced to undergo R.I. for 1 year and
fine of Rs. 1000/- with default stipulation and ordered that sentence of substantive
imprisonment imposed under Section 420 of IPC for 34 counts shall run
consecutively.
2. Learned counsel for the appellant, at the outset, has submitted that he is not
challenging conviction part of judgment. His prayer is that sentence imposed by
learned trial court for offence under Section 420 (34 counts) of IPC and which has
been ordered to be run one after another, be modified and be ordered to run
concurrently.
3. Learned counsel for the State submits that learned trial Court has rightly
convicted and sentenced appellant under Section 420 (34 counts) and Section 193
of IPC. It is also urged that appellant has cheated 34 persons. Therefore, learned
trial Court has rightly ordered sentence imposed under Section 420 of IPC to run
consecutively. Hence, no interference is required in the findings recorded by the
trial Court and appeal be dismissed.
4. I have learned counsel for the appellant as well as State and have examined
recorded of the case.
5. So far as conviction is concerned, this court has gone through the evidence
available on record, both oral as well as documentary evidence and has examined
the same minutely. In this court’s considered opinion from evidence available on
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record, offence under Section 420 (34 counts) and Section 193 of IPC stands
clearly established against appellant/accused. In this court’s opinion, learned trial
Court has rightly appreciated evidence on record and has rightly convicted
appellant for aforesaid offences. Hence, no interference is required in the findings
recorded by the trial Court with respect to appellant’s conviction for aforesaid
offences.
Principles governing concurrent/consecutive sentences:-
6. Sole issue involved in this case is whether in the instant case, sentence
imposed by the trial Court under Sentence 420 (34 counts) of IPC can be ordered
to run concurrently. Before discussing and examining the facts and evidence of the
case, it would be appropriate to refer relevant pronouncement of Hon’ble Apex
court having bearing on the issue involved in the case.
7. A three judge bench of Hon’ble Apex Court in O. M. Cherian @
Thankachan Vs. State of Kerala and others, (2015) 2 SCC 501, has dealt
present issue in detail and has held as under:-
“9. Section 31 CrPC relates to the quantum of punishment that the
court has jurisdiction to pass where the accused is convicted for two or
more offences at one trial. Section 31 CrPC reads as follows:
“31.Sentence in cases of conviction of several offences at
one trial.–(1) When a person is convicted at one trial of
two or more offences, the Court may, subject to the
provisions of Section 71 of the Penal Code, 1860, sentence
him for such offences, to the several punishments
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prescribed therefor which such court is competent to inflict;
such punishments when consisting of imprisonment to
commence the one after the expiration of the other in such
order as the court may direct, unless the court directs that
such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be
necessary for the court by reason only of the aggregate
punishment for the several offences being in excess of the
punishment which it is competent to inflict on conviction of
a single offence, to send the offender for trial before a
higher court: Provided that–
(a) in no case shall such person be sentenced to
imprisonment for a longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the
amount of punishment which the court is competent to
inflict for a single offence.
(3) For the purpose of appeal by a convicted person, the
aggregate of the consecutive sentences passed against him
under this section shall be deemed to be a single sentence.”
10. Section 31 CrPC relates to the quantum of punishment which may
be legally passed when there is (a) one trial, and (b) the accused is
convicted of “two or more offences”. Section 31 CrPC says that
subject to the provisions of Section 71 IPC, the court may pass
separate sentences for two or more offences of which the accused is
found guilty, but the aggregate punishment must not exceed the limit
fixed in provisos (a) and (b) of sub-section (2) of Section 31 CrPC. In
Section 31(1) CrPC, since the word “may” is used, in our considered
view, when a person is convicted for two or more offences at one trial,
the court may exercise its discretion in directing that the sentence for
each offence may either run consecutively or concurrently subject to
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the provisions of Section 71 IPC. But the aggregate must not exceed
the limit fixed in provisos (a) and (b) of sub-section (2) of Section 31
CrPC, that is; (i) it should not exceed 14 years; and (ii) it cannot
exceed twice the maximum imprisonment awardable by the
sentencing court for a single offence.
11. The words “unless the court directs that such punishments shall
run concurrently” occurring in sub-section (1) of Section 31, make it
clear that Section 31 CrPC vests a discretion in the court to direct that
the punishment shall run concurrently when the accused is convicted
at one trial for two or more offences. It is manifest from Section 31
CrPC that the court has the power and discretion to issue a direction
for concurrent running of the sentences when the accused is convicted
at one trial for two or more offences. Section 31 CrPC authorises the
passing of concurrent sentences in cases of substantive sentences of
imprisonment. Any sentence of imprisonment in default of fine has to
be in excess of, and not concurrent with, any other sentence of
imprisonment to which the convict may have been sentenced.
12. The words in Section 31 CrPC
“… sentence him for such offences, to the several
punishments prescribed therefor which such court is
competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration of
the other in such order as the court may direct”
indicate that in case the court directs sentences to run one after the
other, the court has to specify the order in which the sentences are to
run. If the court directs running of sentences concurrently, order of
running of sentences is not required to be mentioned. Discretion to
order running of sentences concurrently or consecutively is judicial
discretion of the court which is to be exercised as per the established
law of sentencing. The court before exercising its discretion under
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Section 31 CrPC is required to consider the totality of the facts and
circumstances of those offences against the accused while deciding
whether sentences are to run consecutively or concurrently.
13. Section 31(1) CrPC enjoins a further direction by the court to
specify the order in which one particular sentence shall commence
after the expiration of the other. Difficulties arise when the courts
impose sentence of imprisonment for life and also sentences of
imprisonment for fixed term. In such cases, if the court does not direct
that the sentences shall run concurrently, then the sentences will run
consecutively by operation of Section 31(1) CrPC. There is no
question of the convict first undergoing the sentence of imprisonment
for life and thereafter undergoing the rest of the sentences of
imprisonment for fixed term and any such direction would be
unworkable. Since sentence of imprisonment for life means jail till the
end of normal life of the convict, the sentence of imprisonment of
fixed term has to necessarily run concurrently with life imprisonment.
In such case, it will be in order if the Sessions Judges exercise their
discretion in issuing direction for concurrent running of sentences.
Likewise if two life sentences are imposed on the convict, necessarily,
the court has to direct those sentences to run concurrently.
14. The opening words “in the case of consecutive sentences” in sub-
section (2) of Section 31 CrPC make it clear that this sub-section
refers to a case in which “consecutive sentences” are ordered. The
provision says that if an aggregate punishment for several offences is
found to be in excess of punishment which the court is competent to
inflict on a conviction of single offence, it shall not be necessary for
the court to send the offender for trial before a higher court. Proviso
(a) is added to sub-section (2) of Section 31 CrPC to limit the
aggregate of sentences–that in no case, the aggregate of consecutive
sentences passed against an accused shall exceed fourteen years.
“Fourteen years’ rule” contained in clause (a) of the proviso to
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Section 31(2) CrPC may not be applicable in relation to sentence of
imprisonment for life, since imprisonment for life means the convict
will remain in jail till the end of his normal life.
16. When the prosecution is based on single transaction where it
constitutes two or more offences, sentences are to run concurrently.
Imposing separate sentences, when the acts constituting different
offences form part of the single transaction is not justified. So far as
the benefit available to the accused to have the sentences to run
concurrently of several offences based on single transaction, in V.K.
Bansal v. State of Haryana [(2013) 7 SCC 211], in which one of us
(T.S. Thakur, J.) was a member, this Court held as under : (SCC p.
217, para 16)“16. … 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.”
17. This Court in Mohd. Akhtar Hussain v. Collector of Customs
Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183,
recognised the basic rule of conviction arising out of a single
transaction justifying the concurrent running of the sentences. The
following passage in this regard is relevant to be noted : (SCC p. 187,
para 10)
“10. 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
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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.”
In Manoj v. State of Haryana (2014) 2 SCC 153 the Bench followed
Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183 .
18. While referring the matter to a larger Bench, the Bench observed
that in Mohd. Akhtar Hussain case, [(1988) 4 SCC 183], Section 31
CrPC was not noticed by this Court. It is to be pointed out that in
Mohd. Akhtar Hussain case, [(1988) 4 SCC 183] and Manoj case,
[(2014) 2 SCC 153], the appellants who were convicted for different
counts of offences arose out of a single transaction, favouring the
exercise of discretion to the benefit of the accused that the sentences
shall run concurrently. Those decisions are not cases arising out of
conviction at one trial of two or more offences and therefore,
reference to Section 31 CrPC in those cases was not necessitated.
19. As pointed out earlier, Section 31 CrPC deals with quantum of
punishment which may be legally passed when there is (a) one trial;
and (b) the accused is convicted of two or more offences. The ambit of
Section 31 is wide, covering not only a single transaction constituting
two or more offences but also offences arising out of two or more
transactions. In the two judgments in Mohd. Akhtar Hussain [(1988) 4
SCC 183] and Manoj [(2014) 2 SCC 153] , the issue that fell for
consideration was the imposition of sentence for two or more offences
arising out of the single transaction. It is in that context, in those cases,
this Court held that the sentences shall run concurrently.
20. Under Section 31 CrPC it is left to the full discretion of the court
to order the sentences to run concurrently in case of conviction for two
or more offences. It is difficult to lay down any straitjacket approach
in the matter of exercise of such discretion by the courts. By and large,
trial courts and appellate courts have invoked and exercised their
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discretion to issue directions for concurrent running of sentences,
favouring the benefit to be given to the accused. Whether a direction
for concurrent running of sentences ought to be issued in a given case
would depend upon the nature of the offence or offences committed
and the facts and circumstances of the case. The discretion has to be
exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31
CrPC leaves full discretion with the court to order sentences for two or
more offences at one trial to run concurrently, having regard to the
nature of offences and attendant aggravating or mitigating
circumstances. We do not find any reason to hold that normal rule is to
order the sentence to be consecutive and exception is to make the
sentences concurrent. Of course, if the court does not order the
sentence to be concurrent, one sentence may run after the other, in
such order as the court may direct. We also do not find any conflict in
the earlier judgment in Mohd. Akhtar Hussain, [(1988) 4 SCC 183]
and Section 31 CrPC.”
8. A five Judge bench of Hon’ble Apex Court in Muthuramalingam and
others Vs. State Represented by Inspector of Police, (2016) 8 SCC 313, after
referring to O.M. Cherian @ Thankachan (supra), held as under:-
“7. A careful reading of the above would show that the provision is
attracted only in cases where two essentials are satisfied viz. (1) a
person is convicted at one trial, and (2) the trial is for two or more
offences. It is only when both these conditions are satisfied that the
court can sentence the offender to several punishments prescribed for
the offences committed by him provided the court is otherwise
competent to impose such punishments. What is significant is that
such punishments as the court may decide to award for several
offences committed by the convict when comprising imprisonment
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shall commence one after the expiration of the other in such order as
the court may direct unless the court in its discretion orders that such
punishment shall run concurrently. Sub-section (2) of Section 31 on a
plain reading makes it unnecessary for the court to send the offender
for trial before a higher court only because the aggregate punishment
for several offences happens to be in excess of the punishment which
such court is competent to award provided always that in no case can
the person so sentenced be imprisoned for a period longer than 14
years and the aggregate punishment does not exceed twice the
punishment which the court is competent to inflict for a single
offence.”
9. Issue involved in the case has also been dealt by Hon’ble Apex Court
recently in Sunil Kumar @ Sudhir Kumar and another Vs. State of Uttar
Pradesh, (2021) 5 SCC 560 and has held as under:-
“10. The contentions urged in this matter essentially revolve around
the provisions contained in Section 31(1) CrPC. The contours of these
provisions have been succinctly delineated and explained by this
Court in O.M. Cherian [(2015) 2 SCC 501] in the following terms :
(SCC pp. 511-12, paras 20-21)
“20. Under Section 31 CrPC it is left to the full discretion of the court
to order the sentences to run concurrently in case of conviction for two
or more offences. It is difficult to lay down any straitjacket approach
in the matter of exercise of such discretion by the courts. By and large,
trial courts and appellate courts have invoked and exercised their
discretion to issue directions for concurrent running of sentences,
favouring the benefit to be given to the accused. Whether a direction
for concurrent running of sentences ought to be issued in a given case
would depend upon the nature of the offence or offences committed
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and the facts and circumstances of the case. The discretion has to be
exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31
CrPC leaves full discretion with the court to order sentences for two or
more offences at one trial to run concurrently, having regard to the
nature of offences and attendant aggravating or mitigating
circumstances. We do not find any reason to hold that normal rule is to
order the sentence to be consecutive and exception is to make the
sentences concurrent. Of course, if the court does not order the
sentence to be concurrent, one sentence may run after the other, in
such order as the court may direct. We also do not find any conflict in
the earlier judgment in Mohd. Akhtar Hussain v. Collector of Customs,
(1988) 4 SCC 183 and Section 31 CrPC.”
10.2. Thus, it is beyond a shadow of doubt that Section 31(1) CrPC
vests complete discretion with the court to order the sentences for two
or more offences at one trial to run concurrently having regard to the
nature of offences and the surrounding factors. Even though it cannot
be said that consecutive running is the normal rule but, it is also not
laid down that multiple sentences must run concurrently. There cannot
be any straitjacket approach in the matter of exercise of such
discretion by the court; but this discretion has to be judiciously
exercised with reference to the nature of the offence(s) committed and
the facts and circumstances of the case. However, if the sentences
(other than life imprisonment) are not provided to run concurrently,
one would run after the other, in such order as the court may direct.
11. For what has been provided in Section 31(1) CrPC read with the
expositions of this Court, it follows that the court of first instance is
under legal obligation while awarding multiple sentences to specify in
clear terms as to whether they would run concurrently or
consecutively. In Nagaraja Rao [(2015) 4 SCC 302], this Court
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expounded on this legal obligation upon the court of first instance in
the following terms : (SCC p. 305, para 11)
“11. The expressions “concurrently” and “consecutively” mentioned in
the Code are of immense significance while awarding punishment to
the accused once he is found guilty of any offence punishable under
IPC or/and of an offence punishable under any other Special Act
arising out of one trial or more. It is for the reason that award of
former enure to the benefit of the accused whereas award of latter is
detrimental to the accused’s interest. It is therefore, legally obligatory
upon the court of first instance while awarding sentence to specify in
clear terms in the order of conviction as to whether sentences awarded
to the accused would run “concurrently” or they would run
“consecutively”.”
12. As noticed, if the court of first instance does not specify the
concurrent running of sentences, the inference, primarily, is that the
court intended such sentences to run consecutively, though, as
aforesaid, the court of first instance ought not to leave this matter for
deduction at the later stage. Moreover, if the court of first instance is
intending consecutive running of sentences, there is yet another
obligation on it to state the order (i.e. the sequence) in which they are
to be executed. The disturbing part of the matter herein is that not only
the trial court omitted to state the requisite specifications, even the
High Court missed out such flaws in the order of the trial court.
14. Faced with the position that the stated omissions will not, by
themselves, provide a room for concurrent running of sentences, the
learned counsel for the appellants has endeavoured to invoke the
“single transaction” principle. In our view, the said principle is
essentially referable to Section 220 CrPC, which provides that if more
offences than one are committed in one series of acts so connected
together as to form the same transaction, then the accused may be
charged with and tried at one trial for every such offence. In a given
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case, after such trial for multiple offences, if the accused is convicted
and awarded different punishments, concurrent running thereof may
be provided depending on the facts and the relevant surrounding
factors. We are afraid, the principle related with “single transaction”
cannot be imported for dealing with the question at hand.
15. In Mohan Baitha v. State of Bihar, (2001) 4 SCC 350, this Court
observed that the expression “same transaction”, from its very nature,
is incapable of an exact definition and it is not possible to enunciate
any comprehensive formula of universal application for the purpose of
determining whether two or more acts constitute the same transaction.
The question involved in that case did not relate to sentence but to the
inquiry and trial of different offences pertaining to Sections 304-B,
498-A, 120-B and 406 IPC and territorial jurisdiction of the
Magistrate in Bihar when the alleged incident constituting one of the
offences i.e. under Section 304-B IPC, had taken place in the State of
Uttar Pradesh. Of course, in Mohd. Akhtar Hussain [(1988) 4 SCC
183], this Court indicated that if a transaction constitutes two offences
under two enactments, generally it is wrong to have consecutive
sentences but this Court hastened to observe that such a rule shall have
no application if the transaction relating to the offences is not the same
or the facts concerning the two offences are quite different.
Significantly, in that case, consecutive running of sentences awarded
to the appellant-accused, in two different cases pertaining to the Gold
(Control) Act, 1968 and the Customs Act, 1962, was upheld by this
Court with the finding that the two offences for which the appellant
was prosecuted were “quite distinct and different”. The only
modification ordered by this Court was concerning the term of
imprisonment for the latter conviction while disapproving its
enhancement from 4 years to 7 years by the High Court after noticing
that he was already sentenced to imprisonment for a term of 7 years in
the first offence. The trial and conviction in Manoj [(2014) 2 SCC
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153] had been for the offence under Section 307 IPC as also under
Sections 25 and 27 of the Arms Act. In Nagaraja Rao,[ (2015) 4 SCC
302], the trial and conviction had been of the offences under Section
381 IPC and Section 52 of the Post Office Act, 1898. In Gagan Kumar
[(2019) 5 SCC 154] , offences were under Sections 279 and 304-A
IPC. These decisions, essentially proceeding on their own facts, do not
make out a case for interference in favour of the appellants.”
10 Hon’ble Apex Court in V.K. Bansal Vs. State of Haryana and another,
(2013) 7 SCC 211 has also deliberated on the issue involved in the case and has
observed and held as under:-
“13. There are also cases where the High Courts have depending upon
whether facts forming the basis of prosecution arise out of a single
transaction or transactions that are akin to each other directed that the
sentences awarded should run concurrently. As for instance the High
Court of Allahabad has in Mulaim Singh v. State [1974 Cri LJ 1397
(All)] directed the sentence to run concurrently since the nature of the
offence and the transactions thereto were akin to each other. Suffice it
to say that the discretion vested in the Court for a direction in terms of
Section 427 can and ought to be exercised having regard to the nature
of the offence committed and the facts situation, in which the question
arises.
14. We may at this stage refer to the decision of this Court in Mohd.
Akhtar Hussain v. Collector of Customs [(1988) 4 SCC 183] in which
this Court recognised the basic rule of convictions arising out of a
single transaction justifying concurrent running of the sentences. The
following passage is in this regard apposite: (SCC p. 187, para 10)
“10. 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
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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.”
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.
17. Applying the above test to the 15 cases at hand we find that the
cases against the appellant fall in three distinct categories. The
transactions forming the basis of the prosecution relate to three
different corporate entities who had either entered into loan
transactions with the State Financial Corporation or taken some other
financial benefit like purchase of a cheque from the appellant that was
on presentation dishonoured. The 15 cases that have culminated in the
conviction of the appellant and the award of sentences of
imprisonment and fine imposed upon him may be categorised as
under:
(1) Cases in which the complainant Haryana State Financial
Corporation advanced a loan/banking facility to M/s
Arawali Tubes Ltd. acting through the appellant as its
Director viz. Criminal Complaint Cases No. 269-II/1997;
No. 549-II/1997; No. 393-II/1997; No. 371-II/1997; No.
372-II/1997; No. 373-II/1997; No. 877-II/1996; No. 880-
II/1996; No. 878-II/1996; No. 876-II/1996; No. 879-
II/1996 and No. 485-II/1996.
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(2) Cases in which the complainant Haryana State Financial
Corporation advanced a loan/banking facility to the
appellant to M/s Arawali Alloys Ltd. acting through the
appellant as its Director viz. Criminal Complaint Cases No.
156-II/1997 and No. 396-II/1998.
(3) Criminal Complaint No. 331-II/1997 in which the
complainant State Bank of Patiala purchased/discounted the
cheque offered by Sabhyata Plastics acting through the
appellant as its Director.
18. Applying the principle of single transaction referred to above to
the above fact situations we are of the view that each one of the loan
transactions/financial arrangements was a separate and distinct
transaction between the complainant on the one hand and the
borrowing company/appellant on the other. If different cheques which
are subsequently dishonoured on presentation, are issued by the
borrowing company acting through the appellant, the same could be
said to be arising out of a single loan transaction so as to justify a
direction for concurrent running of the sentences awarded in relation
to dishonour of cheques relevant to each such transaction. That being
so, the substantive sentence awarded to the appellant in each case
relevant to the transactions with each company referred to above
ought to run concurrently. We, however, see no reason to extend that
concession to transactions in which the borrowing company is
different no matter the appellant before us is the promoter/Director of
the said other companies also. Similarly, we see no reason to direct
running of the sentence concurrently in the case filed by State Bank of
Patiala against M/s Sabhyata Plastics and M/s Rahul Plastics which
transaction is also independent of any loan or financial assistance
between the State Financial Corporation and the borrowing
companies. We make it clear that the direction regarding concurrent
running of sentence shall be limited to the substantive sentence only.
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The sentence which the appellant has been directed to undergo in
default of payment of fine/compensation shall not be affected by this
direction. We do so because the provisions of Section 427 CrPC do
not, in our opinion, permit a direction for the concurrent running of
the substantive sentences with sentences awarded in default of
payment of fine/compensation.”
Analysis and findings:-
11. Now facts and evidence of the case would be examined in the light of
principles laid down in aforesaid pronouncements.
12. For determining the issue involved in this case relevant facts are that present
case pertains to a case where appellant/accused has been convicted for offence
under Section 420 (34 counts) of IPC at one trial. From charges framed by trial
Court, it is evident that above offences relate to a period of 10 to 11 months prior
to 12.10.2019. It is also evident from record of the case that appellant had cheated
more than 34 persons in the name of opening/establishing cloth factory in the
village and on above ground, appellant received approximately Rs. 72, 00,000/-
from more than 34 persons. Learned trial Court has convicted appellant under
Section 420 of IPC for 34 counts and Section 193 of IPC. Trial Court has
sentenced appellant with R.I. for 5 years under Section 420 of IPC for each count
and it has ordered sentence imposed under Section 420 of IPC for 34 counts to run
consecutively. Thus, effectively sentence imposed on appellant for offence under
Section 420 (34 counts) of IPC is RI for 170 years. It has also imposed fine of Rs.
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3,40,000/- for conviction under Section 420 of IPC and in default RI 6 months for
each counts.
13. In view of aforesaid and in present context, observations and principles laid
down by Hon’ble Apex Court in Ammavasai and another Vs. Inspector of
Police, Valliyanur and others, (2000) 9 SCC 749, squarely covers the issue
involved in this case. In Ammavasai (supra) Hon’ble Apex Court has observed
and held as under:-
“2. The appellants in this case are two. The 1st appellant Ammavasai
was convicted in 4 different cases the occurrences in all of which took
place between 27-3-1990 and 7-5-1990. The offence found against
him in all the cases was under Section 395 of the Penal Code, 1860
and in each case he was sentenced to undergo rigorous imprisonment
for 7 years. If he is not given the benefit in exercise of the discretion
conferred under Section 427 of the Criminal Procedure Code, he may
have to undergo a very long period of 28 years in jail.
3. The 2nd appellant Deivaraj was convicted in 5 different cases the
occurrences in all of which took place between 21-10-1989 and 7-5-
1990. He was also found guilty under Section 395 of the Penal Code,
1860 and was sentenced to undergo rigorous imprisonment for a
period of 7 years in each case. If the benefit conferred under Section
427 is not extended to him, he may have to undergo imprisonment for
a total period of 35 years in jail.
4. On the other hand, we allow the appellants to have the benefit of all
the sentences to run concurrently, they would be out by now after
serving only imprisonment for a period of 7 years awarded in one
case. Both courses are unacceptable to us and, therefore, we thought
of a via media which would be consistent with the administration of
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criminal justice. After bestowing our anxious consideration, we
thought that if the appellants would undergo a total period of 14 years
of imprisonment in respect of all the convictions passed against them,
that will be sufficient to meet the ends of justice.
5. We, therefore, direct that the sentence imposed on the 1st appellant
pursuant to the conviction passed by the Assistant Sessions Judge,
Pondicherry in SC No. 66 of 1991 will run untelescoped by any other
sentence imposed upon him subsequently. In other words, the sentence
imposed in subsequent cases would start running only on the
termination of the sentence imposed upon him in the aforementioned
case (SC No. 66 of 1991 on the file of the Assistant Sessions Judge,
Pondicherry). We also order that the sentence imposed upon him in the
following 3 cases will run concurrently:
1. SC No. 135 of 1993 — in the Court of Sessions Judge,
Tuticorin.
2. SC No. 69 of 1994 — in the Court of Sessions Judge,
Nagarcoil.
3. SC No. 197 of 1995 — in the Court of Principal Sessions
Judge, Nagapattinam.
6. Regarding the 2nd appellant’s also, we adopt the same measure and
order that the sentences imposed upon him by the Assistant Sessions
Judge, Pondicherry in SC No. 66 of 1991 will run unaffected by any
another sentence imposed upon him subsequently. Only on the
termination of the aforesaid sentence the jail authorities would start
reckoning the sentence imposed on him in respect of the remaining 4
cases, which are detailed below:
1. SC No. 32 of 1994 — in the Court of Sessions Judge,
Dindigul.
20
2. SC No. 135 of 1993 — in the Court of Sessions Judge,
Tuticorin.
3. SC No. 69 of 1994 — in the Court of Assistant Sessions
Judge, Nagarcoil.
4. SC No. 197 of 1995 — in the Court of Assistant Sessions
Judge, Nagapattinam.
7. We make it clear that we permit the sentences passed on the 2nd
appellant in respect of the abovementioned 4 remaining cases to run
concurrently.”
14. Hence, in view of factual scenario of instant case and keeping in mind the
principles laid down by the Hon’ble Apex Court in pronouncements as referred in
preceding paras and also in Ammavasai (supra), in this court’s considered
opinion, if appellant is directed to undergo a total period of 10 years of
imprisonment in respect to all convictions pertaining to all 34 counts under
Section 420 of IPC passed against him, that will be sufficient to meet ends of
justice.
15. Hence, it is directed that sentence imposed by learned trial court with respect
to Arvind Jatav (count No.1) under section 420 of IPC will run untelescoped by
sentences imposed for remaining 33 counts under Section 420 of IPC upon
appellant. In other words, the sentence imposed with respect to remaining 33
counts would start running only on the termination of sentence of imprisonment
imposed upon appellant with respect to count No.1 (Arvind Jatav) under Section
420 of IPC. It is also ordered that sentence of imprisonment imposed by learned
21
Trial Court under Section 420 of IPC with respect to remaining 33 counts shall run
concurrently.
16. It is made clear that sentence of imprisonment imposed for offence under
Section 193 of IPC shall run concurrently with sentence imposed under Section
420 of IPC as directed by learned Trial Court in para 141 of impugned judgment.
17. It is also made clear that sentence imposed by learned Trial Court in default
of payment of fine shall not be affected by this order.
18. Appeal filed by the appellant/accused is partly allowed to the extent as
indicated hereinabove.
19. Present criminal appeal is disposed off accordingly.
[
(ACHAL KUMAR PALIWAL)
Digitally signed by JUDGE
L.R.
LALIT SINGH RANA
Date: 2024.09.03
17:20:29 +05’30’