Gagan Kumar vs The State Of Punjab

CRIMINAL APPEAL No.266 OF 2019 (Arising out of S.L.P.(Crl.) No.10727 of 2018)

Gagan Kumar ….Appellant(s)

VERSUS

The State of Punjab ….Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is directed against the final

Signature Not Verified judgment and order dated 26.11.2018 passed by Digitally signed by ANITA MALHOTRA

the High Court of Punjab & Haryana at Chandigarh Date: 2019.02.15 17:58:09 IST Reason:

1

in CRR No.42 of 2018 whereby the Single Judge of

the High Court dismissed the revision petition filed

by the appellant herein and affirmed the judgment

and order of the Courts below.

3. The appeal involves a short controversy as

would be clear from the facts set out hereinbelow.

4. The appellant was prosecuted and eventually

convicted for the offences punishable under

Sections 279 and 304­A of the Indian Penal Code,

1860 (hereinafter referred to as “IPC”) in CHI

88530 of 2013 by the Judicial Magistrate 1 st Class,

Jalandhar by order dated 12.05.2017. On the

quantum of sentence, the Judicial Magistrate

passed the following order:

Under Section To undergo rigorous 279 of IPC imprisonment for six months and to pay a fine of Rs.1000/­ and in default of payment of fine to undergo simple imprisonment for fifteen days.

2 Under Section To undergo rigorous 304­A of IPC imprisonment for two years and to pay a fine of Rs.1000/­ and in default of payment of fine to undergo simple imprisonment for one month.

5. Felt aggrieved by the said order, the

appellant(accused) filed CRA/324/2017 before the

Additional Sessions Judge, Jalander. By order

dated 08.12.2017, the Additional Sessions Judge

dismissed the appeal and affirmed the order passed

by the Judicial Magistrate.

6. The appellant (accused) felt aggrieved by the

aforementioned order and filed revision in the High

Court of Punjab & Haryana at Chandigarh. The

High Court, by impugned order, dismissed the

revision and upheld the conviction and sentence

awarded by the Courts below.

3

7. The appellant(accused) felt aggrieved and filed

the present appeal by way of special leave in this

Court.

8. So, the short question, which arises for

consideration in this appeal, is whether the Courts

below were justified in convicting the appellant.

9. Heard learned counsel for the parties.

10. Learned counsel for the appellant (accused)

while assailing the legality and correctness of the

impugned order argued only one point.

11. The only submission made by the learned

counsel for the appellant was that the Judicial

Magistrate while passing the order of sentence erred

in not mentioning therein as to whether the two

punishments awarded to the appellant under

Section 279 and Section 304­A IPC would run

concurrently or consecutively.

4

12. Learned counsel pointed out that under

Section 31 of Code of Criminal Procedure,

1973(hereinafter referred to as “Code”), it is

mandatory for the Magistrate to specify as to

whether the sentences awarded to the accused

would run concurrently or consecutively when the

accused is convicted for more than one offence in a

trial.

13. Learned counsel urged that since in this case

the appellant was awarded two years rigorous

imprisonment with a fine amount of Rs.1000/­ and

in default of payment of fine amount, to further

undergo simple imprisonment for one month under

Section 304­A IPC and six months rigorous

imprisonment with a fine amount of Rs.1000/­ and

in default of payment of fine amount, to further

undergo simple imprisonment for 15 days under

Section 279 IPC, these two punishments should

5 have been directed to run concurrently as provided

under Section 31(1) of the Code.

14. Learned counsel for the State, however, could

not find fault in the legal position, which governs

the issue, and, in our view, rightly.

15. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and modify the

order of the Magistrate dated 12.05.2017, as

indicated under.

16. In our considered opinion, it was necessary for

the Magistrate to have ensured compliance of

Section 31 of the Code when she convicted and

sentenced the appellant for two offences in a trial

and inflicted two punishments for each offence,

namely, Section 279 and Section 304­A IPC.

17. In such a situation, it was necessary for the

Magistrate to have specified in the order by taking

6 recourse to Section 31 of the Code as to whether the

punishment of sentence of imprisonment so

awarded by her for each offence would run

concurrently or consecutively.

18. Indeed, it being a legal requirement

contemplated under Section 31 of the Code, the

Magistrate erred in not ensuring its compliance

while inflicting the two punishments to the

appellant.

19. If the Magistrate failed in her duty, the

Additional Sessions Judge and the High Court

should have noticed this error committed by the

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 and accordingly punished with a sentence

to undergo two years rigorous imprisonment with a

7 fine amount of Rs.1000/­ and in default of payment

of fine amount to further undergo one month simple

imprisonment under Section 304­A and 6 months

rigorous imprisonment with a fine amount of

Rs.1000/­ and in default of payment of fine amount

to further undergo 15 days simple imprisonment

under Section 279 IPC.

21. In our view, having regard to the facts and

circumstances of the case and keeping in view the

nature of controversy involved in the case, both the

aforementioned sentences awarded by the

Magistrate to the appellant would run

"concurrently".

22. So far as the merits of the case is concerned,

when three Courts have, on appreciation of

evidence, found that the prosecution was able to

make out a case against the appellant, we find no

good ground to interfere in such finding.

8

23. Even otherwise, the learned counsel for the

appellant though made attempt to question the

finding on merits but not with that seriousness and,

in our view, rightly. We, therefore, confirm the

finding of conviction and sentence under both the

Sections, which is awarded by the Magistrate.

24. The appeal thus succeeds and is allowed in

part. The impugned order is modified only to the

extent mentioned in para 21 above.

………...................................J. [ABHAY MANOHAR SAPRE]

………..................................J. [DINESH MAHESHWARI] New Delhi;

February 14, 2019.

9