GAGAN KUMAR versus THE STATE OF PUNJAB on 14 February 2019

GAGAN KUMAR

v.

THE STATE OF PUNJAB

(Criminal Appeal No. 266 of 2019)

FEBRUARY 14, 2019

[ABHAY MANOHAR SAPRE ANDDINESH MAHESHWARI, JJ.]

Code of Criminal Procedure, 1973:s.31 – Sentences in casesof conviction of several offences at one trial – Compliance of s. 31,by the Magistrate – Held: Magistrate should specify in the order bytaking recourse to s. 31 as to whether the punishment of sentenceof imprisonment so awarded for each offence would run concurrentlyor consecutively – On facts, Magistrate while passing the order ofsentence erred in not mentioning as to whether the two punishmentsawarded to convict u/s. 279 and 304-A IPC would run concurrentlyor consecutively – In view of the facts and circumstances of thecase, both the sentences awarded by Magistrate to run‘concurrently’.

Partly allowing the appeal, the Court

HELD: 1.1 It was necessary for the Magistrate to haveensured compliance of Section 31 of the Code of CriminalProcedure, 1973 when she convicted and sentenced the appellantfor two offences in a trial and inflicted two punishments for eachoffence, namely, Section 279 and Section 304-A IPC. In such asituation, it was necessary for the Magistrate to have specifiedin the order by taking recourse to Section 31 of the Code as towhether the punishment of sentence of imprisonment so awardedby her for each offence would run concurrently or consecutively.Indeed, it being a legal requirement contemplated underSection 31 of the Code, the Magistrate erred in not ensuring itscompliance while inflicting the two punishments to the appellant.[Paras 16-18] [370-F-H; 371-A]

1.2 If the Magistrate failed in her duty, the AdditionalSessions Judge and the High Court should have noticed this errorcommitted by the Magistrate and accordingly should have

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Acorrected it. It was, however, not done and hence interference iscalled for to that extent. [Para 19] [371-B]

1.3 The appellant was convicted and accordingly punishedwith a sentence to undergo two years rigorous imprisonment witha fine amount of Rs.1000/- and in default of payment of fine amountBto further undergo one month simple imprisonment under Section304-A and 6 months rigorous imprisonment with a fine amount ofRs.1000/- and in default of payment of fine amount to furtherundergo 15 days simple imprisonment under Section 279 IPC.Having regard to the facts and circumstances of the case andkeeping in view the nature of controversy involved in the case,Cboth the sentences awarded by the Magistrate to the appellantwould run “concurrently”. [Paras 20, 21] [371-C-D]

1.4 So far as the merits of the case is concerned, when threeCourts have, on appreciation of evidence, found that theprosecution was able to make out a case against the appellant,Dthere is no good ground to interfere in such finding. The findingof conviction and sentence under both the Sections, awarded bythe Magistrate is upheld. [Paras 22, 23] [371-E, F]

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 266 of 2019.E

From the Judgment and Order dated 26.11.2018 of the High Courtof Punjab and Haryana at Chandigarh in CRR No. 42 of 2018 (O&M).

Devesh Kumar Tripathi, Adv. for the Appellant.

Ms.Jaspreet Gogia, Ms.Mandakini Singh, Advs. for theFRespondent.

The Judgment of the Court was delivered by ABHAY MANOHAR SAPRE, J. 1. Leave granted.

2. This appeal is directed against the final judgment and orderGdated 26.11.2018 passed by the High Court of Punjab & Haryana atChandigarh in CRR No.42 of 2018 whereby the Single Judge of theHigh Court dismissed the revision petition filed by the appellant hereinand affirmed the judgment and order of the Courts below.

GAGAN KUMAR v. STATE OF PUNJAB[ABHAY MANOHAR SAPRE, J.]

3. The appeal involves a short controversy as would be clearfrom the facts set out hereinbelow.

4. The appellant was prosecuted and eventually convicted for theoffences punishable under Sections 279 and 304-A of the Indian PenalCode, 1860 (hereinafter referred to as “IPC”) in CHI 88530 of 2013 bythe Judicial Magistrate 1[st] Class, Jalandhar by order dated 12.05.2017.On the quantum of sentence, the Judicial Magistrate passed the followingorder:

5. Felt aggrieved by the said order, the appellant(accused) filedCRA/324/2017 before the Additional Sessions Judge, Jalander. By orderdated 08.12.2017, the Additional Sessions Judge dismissed the appealand affirmed the order passed by the Judicial Magistrate.

6. The appellant (accused) felt aggrieved by the aforementionedorder and filed revision in the High Court of Punjab & Haryana atChandigarh. The High Court, by impugned order, dismissed the revisionand upheld the conviction and sentence awarded by the Courts below.

7. The appellant(accused) felt aggrieved and filed the presentappeal by way of special leave in this Court.

8. So, the short question, which arises for consideration in thisappeal, is whether the Courts below were justified in convicting theappellant.

9. Heard learned counsel for the parties.

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10. Learned counsel for the appellant (accused) while assailingthe legality and correctness of the impugned order argued only one point.

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11. The only submission made by the learned counsel for theappellant was that the Judicial Magistrate while passing the order ofsentence erred in not mentioning therein as to whether the twopunishments awarded to the appellant under Section 279 and Section304-A IPC would run concurrently or consecutively.

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12. Learned counsel pointed out that under Section 31 of Code ofCriminal Procedure, 1973(hereinafter referred to as “Code”), it ismandatory for the Magistrate to specify as to whether the sentencesCawarded to the accused would run concurrently or consecutively whenthe accused is convicted for more than one offence in a trial.

13. Learned counsel urged that since in this case the appellantwas awarded two years rigorous imprisonment with a fine amount ofRs.1000/- and in default of payment of fine amount, to further undergosimple imprisonment for one month under Section 304-A IPC and sixmonths rigorous imprisonment with a fine amount of Rs.1000/- and indefault of payment of fine amount, to further undergo simple imprisonmentfor 15 days under Section 279 IPC, these two punishments should havebeen directed to run concurrently as provided under Section 31(1) of theCode.

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14. Learned counsel for the State, however, could not find fault inthe legal position, which governs the issue, and, in our view, rightly.

15. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and modifyFthe order of the Magistrate dated 12.05.2017, as indicated under.

16. In our considered opinion, it was necessary for the Magistrateto have ensured compliance of Section 31 of the Code when sheconvicted and sentenced the appellant for two offences in a trial andinflicted two punishments for each offence, namely, Section 279 andSection 304-A IPC.G

17. In such a situation, it was necessary for the Magistrate tohave specified in the order by taking recourse to Section 31 of the Codeas to whether the punishment of sentence of imprisonment so awardedby her for each offence would run concurrently or consecutively.

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18. Indeed, it being a legal requirement contemplated under Section31 of the Code, the Magistrate erred in not ensuring its compliance whileinflicting the two punishments to the appellant.

19. If the Magistrate failed in her duty, the Additional SessionsJudge and the High Court should have noticed this error committed bythe Magistrate and accordingly should have corrected it. It was, however,not done and hence interference is called for to that extent.

20. As mentioned above, the appellant was convicted andaccordingly punished with a sentence to undergo two years rigorousimprisonment with a fine amount of Rs.1000/- and in default of paymentof fine amount to further undergo one month simple imprisonment underSection 304-A and 6 months rigorous imprisonment with a fine amountof Rs.1000/- and in default of payment of fine amount to further undergo15 days simple imprisonment under Section 279 IPC.

21. In our view, having regard to the facts and circumstances ofthe case and keeping in view the nature of controversy involved in thecase, both the aforementioned sentences awarded by the Magistrate tothe appellant would run “concurrently”.

22. So far as the merits of the case is concerned, when threeCourts have, on appreciation of evidence, found that the prosecutionwas able to make out a case against the appellant, we find no goodground to interfere in such finding.

23. Even otherwise, the learned counsel for the appellant thoughmade attempt to question the finding on merits but not with thatseriousness and, in our view, rightly. We, therefore, confirm the findingof conviction and sentence under both the Sections, which is awardedby the Magistrate.

24. The appeal thus succeeds and is allowed in part. The impugnedorder is modified only to the extent mentioned in para 21 above.

Nidhi Jain

Appeal partly allowed.

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