High Court of H.P.IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .

Cr. Appeal Nos. 52 of 2012 & 124 of 2012.

Reserved on: April 06, 2015.

Decided on: April 08, 2015.

1. Cr. Appeal No. 52 of 2012.

Pratap Singh ……Appellant.

Versus

State of H.P. …….Respondent.

2. Cr. Appeal No. 124 of 2012.

Partap Singh ……Appellant.

Versus

State of H.P. …….Respondent.

Coram

The Hon’ble Mr. Justice Rajiv Sharma, Judge.

Whether approved for reporting? Yes.

For the appellant(s): M/S. Anoop Chitkara and Satyen Vaidya, Advocates.

For the respondent: Mr. Parmod Thakur, Addl. AG.

----------------------------------------------------------------------------------------------

Justice Rajiv Sharma, J.

Since common questions of law and facts are involved in these

appeals, both these appeals were taken up together for hearing. However,

in order to maintain clarity, the facts in each appeal are being taken into

consideration separately.

2. These appeals are directed against the judgment dated

23.1.2012, rendered by the learned Special Judge (Forests), Shimla, H.P, in

Corruption Case No. 11-S/7 of 2008 and also judgment dated 28.3.2012 in

Corruption Case No. 12-S/7 of 2008.

Cr. Appeal No. 52 of 2012.

3. The appellant-accused (hereinafter referred to as the accused),

who was charged with and tried for offences punishable under Sections

420, 409, 467, 468, 471, 477 A IPC and Section 13(2) of the Prevention of

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 2

Corruption Act, 1988, has been convicted and sentenced to undergo

imprisonment for two years and a fine of Rs. 10,000/- and in default of

payment of fine, to further undergo imprisonment for six months under

Section 409 IPC. The accused was further sentenced to imprisonment for

one year and a fine of Rs. 10,000/- and in default of payment of fine to

further undergo imprisonment for six months under Section 477-A IPC and

under Section 13(2) of the P.C. Act to undergo imprisonment for one year

and to pay a fine of Rs. 10,000/- and in default of payment of fine, to

further undergo imprisonment for six months. The sentences were ordered

to run concurrently.

4. The case of the prosecution, in a nut shell, is that the accused

while functioning as Naib Tehsildar, Dodra Kawar, during the year 2000-01

held various additional charges of the offices, including Sub Treasury

Office of Dodra Kawar, Block primary Education Office, Principal of Govt.

Senior School, Kawar, Headmaster, Govt. High School Dodra and Jaskoon

and Headmaster of Govt. Middle School Jakha and was entrusted with

cash amounting to Rs. 92,936/- in respect of bills No. 17, 28, 73, 84, 95,

97, 98 and 100 concerning purchase of stationary and other articles and

transportation thereof in respect of Block Primary Schools. The Vigilance

Department received complaint and an inquiry was initiated. Thereafter,

Inspector, Narata Ram conducted the enquiry. He gave the report that the

accused while functioning as Naib Tehsildar and exercising powers of DDO

in respect of Education Department, committed criminal breach of trust

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 3

and embezzled Rs. 92,936/- (2000-01) and also forged documents and

used them as genuine and made false entries of accounts. The entries of

payments were made on the same date but there was no voucher

supporting the same. The entries were false and accounts were defalcated.

An amount of Rs. 27,000/- was stated to be drawn for purchase of fuel

wood, however, no such supply was ever made and amount was

misappropriated. The investigation was completed and the challan was put

up after completing all the codal formalities.

5. The prosecution, in order to prove its case, has examined as

many as 28 witnesses. The accused was also examined under Section 313

Cr.P.C. He has denied the prosecution case. The learned trial Court

convicted and sentenced the accused, as noticed hereinabove.

6. Mr. Anoop Chitkara, Advocate, appearing on behalf of the

accused, has vehemently argued that the prosecution has failed to prove its

case against the accused. On the other hand, Mr. Parmod Thakur, learned

Addl. AG, for the State has supported the judgment of the learned trial

Court dated 23.1.2012.

7. I have heard learned counse l for both the sides and gone

through the records of the case carefully.

8. Sh. Hardyal Singh, PW-1 has testified that he remained posted

in the office of BPEO, Dodra Kawar as JBT. He remained posted in that

office from 2003. Accused was working as Niab Tehsildar and BPEO. He

had produced the attendance register of Central Primary School Kawar

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 4

from August, 2001 to September, 2004. According to him, the attested

copy of challan dated 31.3.2004 for Rs. 4646/- in respect of Manoj Kumar

and pay bill for December, 1990 wh ich was unsigned were taken into

possession vide memorandum Ext. PW-1/A. He proved copy of challan

Ext. PW-1/B and bill Ext. PW-1/C.

9. Smt. Sunita, PW-2 testified that she remained in the office of

BPEO Dodra Kawar, as Clerk in the year 1998. Accused was working as

BPEO. She was working as daily wage r. She was doing diary dispatch

work. Sh. Ram Dutt, teacher used to prepare the bills. Authority was in

her name for withdrawl of money from the treasury. She used to make the

payment on the same day. She did not know BPEO could have made the

authority in her name. In the treasury cash register, she used to sign. She

was not conversant with the cash book. She used to disburse the

payments.

10. Sh. Ram Dutt Sharma, PW-3, deposed that he remained

posted as JBT in Govt. Primary School Kiterwari from 1999 to 2001. He

was well conversant with the handwriting and signatures of the accused.

He identified bill No. 31/2000 dated 8.8.2000 which was prepared by him

vide Ext. PW-3/A. He also prepared bill No. 84 dated 6.1.2001 Ext. PW-

3/B, Bill No. 95 dated 31.3.2001 Ext. PW-3/C, Bill No. 97 dated 31.3.2001

Ext PW-3/D, Bill No. 98 dated 31.3.2001 Ext. PW-3/D and Bill No. 100

dated 31.3.2001 Ext. PW-3/F. These bills were signed by the accused. He

had also identified Bill No. 17 dated 23.6.2000 Ext. PW-3/G and bill No. 28

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 5

Ext. PW-3/H. He also identified cash book Ext. PW-3/J and also payment

at page 7 and entries Ext. PW-3/K. He has also seen page Nos. 30 and 31

vide Ext. PW-3/M and Ext. PW-3/N. These have been attested by accused

Partap Singh. The entry at page No. 34 was also attested by accused vide

Ext. PW-3/O. Vouchers A-1 to A-13 were not attested by the DDO. In his

cross-examination, he admitted that the payment was made, vouchers

were annexed by accused himself. He was not aware that recipients used

to sign the vouchers as well. In the school, stock register was maintained

by the Center Head Teacher. He admitted that during his tenure whatever

work was done, payment was received by the claimants. He also testified

in his cross-examination that accused as D.D.O. was responsible for all

departments in the Dodra Kawar.

11. Sh. Chandu Lal, PW-4 an d Sh. Arun Kumar, PW-5 were

declared hostile.

12. Sh. Som Nath, PW-6 testified that he is running Sharma

General Store at Novbahar since 1989. He identified bill Ext. A-40. These

articles were supplied by him. He denied the suggestion that Ext. A-40

was not issued by them. He also denied that writing on bill Ext. A-40 is in

his hand writing or in the hand writing of his brother.

13. Sh. Dev Lal, PW-7 deposed that in the year 1997-98, he got the

school white washed and also transported books etc. to the school and

received the payment.

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 6

14. Sh. Thampi Singh, PW-8 de posed that he transported the

material book etc. from Natwari to Kawar Jiskoon schools and executed

receipts Ext. A-26 and A-27. Sh. Chaman Lal, PW-9 testified that he is

running a Karyana shop for the last 20 years. He has not signed A-23. Sh.

Bhagat Singh, PW-10 has sent record to Vigilance department through

letter Ext. PW-10/A. Sh. Jagdish Chand, PW-11 has proved extract Ext.

PW-11/A. Sh. Dharam Singh, PW-12 has proved memorandum Ext. PW-

12/A and PW-12/B. Sh. Shri Lal, PW-13 has proved memorandum Ext.

PW-13/A. Sh. Sarva Singh, PW-14 has proved abstract of register Ext.

PW-14/B. Ms. Santosh Kumari, PW-15 has proved memorandum Ext. PW-

15/A. Sh. Gian Chand, PW-16 has proved memorandum Ext. A-35. Sh.

Ram Pal, PW-17 has proved memorandum Ext. PW-17/A. Sh. Rajinder

Lal, PW-18 has proved original memorandum Ext. PW-18/A. Sh. Barji

Ram, PW-19 was declared hostile. Sh. Ramesh Kumar, PW-20 has proved

Ext. PW-20/A and PW-21/A. Sh. Susheel Kumar, PW-21 has proved

memorandum Ext. PW-21/A. Sh. Kallu Ram, PW-22 stated that he had

supplied fuel wood to various schools of Dodra Kawar. He had received

payments and issued the receipts. He had signed receipt Ext. A-22.

According to him, perhaps, he had received a sum of Rs. 27,000/-. Sh.

Gian Chand, PW-23 deposed that he had received payment of Rs. 1385/-.

He had signed bill Ext A-28 and receipt Ext. A-29. Sh. Serva Nand, PW-24

has proved the abstract Ext. PW-24/B. Sh. Sunil Kumar, PW-25 has

proved memorandum Ext. PW-25/A and Ext. PW-8/B. Sh. Partap Singh,

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 7

PW-26 has proved memorandum Ext. PW-26/A. Sh. Naratta Ram, PW-27

was the Investigating Officer. According to him, he has seized fuel registers

produced by Hardyal Singh, Shiv Lal, Sarva Nand, Santosh Kumari, Ram

Pal and Dharam Singh. He sent these documents alongwith the specimen

writings and signatures to FSL, Junga for comparison. He recorded the

statement of Rajinder Lal mark Z-1. He also recorded statements of Barji

Ram, Sushil Kumar, Kallu Ram, Gian Chand and Sarva Nand. In his

cross-examination, he deposed that the contractors had received the

payments. Sh. Anant Ram, PW-28 has partly investigated the case. He

has seized receipt Ext. A-27. He proved copy of FIR Ext. PW-28/A.

15. Bill Ext. PW-3/G for Rs. 14,750/- was drawn for office

expenses and it was drawn in the name of P.S. Ranaut. The entries in the

cash book Ext. PW-3/J at page 7 was made showing Rs. 14750/- as having

been drawn against bill No. 17 on 23.6.2000 and payment was shown to

have been made at page 7 of the cash book on 23.6.2000 itself. However,

in the column of particulars, there is nothing to show that to which firm

and to which person the payment wa s made. The accused had infact

drawn payment vide bill No. 17 Ext. PW-3/G, however, the receipt was not

obtained.

16. A sum of Rs. 3205/- was drawn by Sh. P.S. Ranaut as BPEO

through bill Ext. PW-3/C i.e. bill NO. 95 dated 31.3.2001. In the cash

book, at page No. 34, a sum of Rs. 3205/- was received and on the same

day, payment was shown. However, in the column of particulars, there is

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 8

no detail as to whom the payment was made. The entries are Ext. PW-3/O

in cash book Ext. PW-3/J. The accused has not denied the withdrawal of

money and also the payment in the cash book.

17. A sum of Rs. 6457/- was drawn through bill No. 97 dated

31.3.2001 Ext. PW-3/D. It was draw n in the name of P.S. Ranaut as

BPEO and entry was made in the cash book as receipt of the money at

page No. 34 and amount was drawn for office expenses. The payment was

shown to have been made on 31.3.2001 itself. The entries are Ext. PW-

3/O and in the cash book Ext. PW-3/J. The accused has drawn Rs.

6457/- but could not account for the same.

18. A sum of Rs. 1000/- was drawn vide bill No. 100 dated

31.3.2001 vide Ext. PW-3/F and the amount was entered in the cash book

on 31.3.2001. It was shown to have been paid on 31.3.2001 itself. The

entry in the cash book did not show to whom the payment was made.

There is no evidence to prove that the payment was infact made.

19. A sum of Rs. 63,380/- was drawn vide bill No. 98 dated

31.3.2001 Ext. PW-3/F as office expenses in the name of P.S. Ranaut, Naib

Tehsildar and on the same day the payment was received and entered on

receipt side of the cash book at page No. 34 as per the details in Ext. PW-

3/O. The accused has admitted to have received the money but he did not

know to whom the payment was made.

20. The explanation advanced by the accused cannot be accepted.

The prosecution has proved the entrustment of money to the accused. The

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 9

accused was also charged under Section 477-A IPC. Accused Partap Singh

Ranaut, while functioning as BPEO, Dodra Kawar, has withdrawn a sum of

Rs. 14750/- vide bill No. 17 dated 23.6.2000 and payment was shown to

have been made in the cash book as per page No. 7 Ext. PW-3/O.

However, there are no vouchers and receipts. Similarly, a sum of Rs. 100/-

was drawn vide bill No. 100 Ext. PW-3/F and payment was shown at page

34 vide entries at Ext. PW-3/O. Similarly, he has withdrawn Rs. 63,380/-

for office expenses vide bill no. 98 Ext. PW-3/E and payment was shown in

the cash book. The entries are Ext. PW-3/O. There are no vouchers

showing the payment. It was the duty of the accused, being DDO, to make

entries correctly duly supported by the documents. The prosecution has

fully proved the case against the accused and accused has rightly been

convicted and sentenced, as noticed hereinabove, under Section 409, 477-

A IPC and under Section 13(2) of the Prevention of Corruption Act, 1988.

Cr. Appeal No. 124 of 2012.

21. The appellant-accused (hereina fter referred to as the accused),

who was charged with and tried for offences punishable under Sections

420, 409, 467, 468, 471, 477-A IPC and Section 13(2) of the Prevention of

Corruption Act, 1988, has been convicted and sentenced to undergo

imprisonment for one year and a fine of Rs. 10,000/- and in default of

payment of fine to further undergo imprisonment for six months under

Section 477-A IPC and under Section 13(2) of the P.C. Act to undergo

imprisonment for one year and to pay a fine of Rs. 10,000/- and in default

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 10

of payment of fine, to further undergo imprisonment for six months. The

sentences were ordered to run concurrently.

22. The case of the prosecution, in a nut shell, is that the accused

while functioning as Naib Tehsildar, Dodra Kawar, during the year 2001-

02, held various additional charges of the offices, including Sub Treasury

Office of Dodra Kawar, Block Primary Education Office, Principal of Govt.

Sr. School, Kawar, Headmaster, Govt. High School Dodra and Jaskoon and

Headmaster of Govt. Middle School Jakha and was entrusted with cash

amounting to Rs. 2, 27,473/- in respect of bills No. 26, 27, 28, 37, 38, 39,

40, 52, 53, 54, 55, 56, 57, 63 and one receipt amounting to Rs. 600/-

concerning the purchases of stat ionary and other articles and

transportation thereof in respect of Block Primary Schools. The Vigilance

Department received complaint and an inquiry was initiated. Thereafter,

Inspector, Narata Ram conducted the enquiry. The investigation was

completed and the challan was put up after completing all the codal

formalities.

23. The prosecution, in order to prove its case, has examined as

many as 33 witnesses. The accused was also examined under Section 313

Cr.P.C. He has denied the prosecution case. The learned trial Court

convicted and sentenced the accused, as noticed hereinabove.

24. Mr. Satyen Vaidya, Advocate, appearing on behalf of the

accused, has vehemently argued that the prosecution has failed to prove

its case against the accused. On the other hand, Mr. Parmod Thakur,

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 11

Addl. AG, for the State has supported the judgment of the learned trial

Court dated 28.3.2012.

25. I have heard learned counse l for both the sides and gone

through the records of the case carefully.

26. Sh. Deep Ram, PW-1 has deposed that he never went to

Natwarh for carrying the articles. Sh. Krishan Chand, PW-2 has proved

proforma-invoice Ext. PW-2/A and PW-2/B. Sh. Atul Latwa, PW-3 deposed

that he has issued bill Ext. PW-3/A and its receipt Ext. PW-3/B. Sh.

Thampi Singh, PW-4 deposed that he has executed receipts Ext. PW-4/A

and Ext. PW-4/B. Sh. Yashwani Kumar, PW-5 deposed that he has

prepared bill No. 26 dated 20.10.2001. He identified the signatures of the

accused. The same is Ext. PW-5/F. He also prepared bill No. 40 dated

20.10.2001 Ext. PW-5/G. He also identified signatures of accused Partap

Singh on documents mentioned in his statement. He also identified

signatures of the accused on cash book pages 199, 31 to 38 Ext. A-57 to A-

72. Sh. Surinder Singh, PW-6 deposed that he has prepared bill No. 26,

dated 20.10.2001 Ext. PW-6/A, PW-6/A-11, A-15, A-18, A-44, A-47 and A-

55. He had written page No. 77 Ext. PW-6/C and made entry at page No.

38 of the cash book Ext PW-5/A. By the time the bill was drawn, bills had

not been received and payment was shown to have been received in the

name of Partap Singh accused. He has made these entries at the instance

of accused. Sh. Hratap Singh Negi, PW-7 has proved extract of register

Ext. PW-7/A. Sh. Gurmit Singh, PW-8 has proved receipts Ext. PW-8/B to

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 12

PW-8/D. Sh. Uttam Lal, PW-9 depo sed that whatever material was

received in the School, it was entered in the register. Sh. Ramesh Chand,

PW-10 has proved bill Ext. PW-10/A and receipt Ext. PW-10/B. Sh.

Yogesh Arya, PW-11 identified bills supplied for stationary articles and

payment received. Sh. Mehar Chand, PW-12 has proved memorandum

Ext. PW-12/A. Sh. Jai Lal, PW-13 has proved memorandum Ext. PW-5/B.

Sh. Sant Ram, PW-14 and Sh. Bhagat Singh, PW-15 are formal witnesses.

Sh. Ram Dutt Sharma, PW-16, deposed that cash used to remain with the

DDO. The contingency bills Ext. PW-16/A, PW-16/B, A-1, A-3, PW-5/F,

PW-6/A and A-44 were prepared by him. Ms. Sunita, PW-17 stated that

Ram Dutt was teacher. His services were being requisitioned for

assistance. She used to draw money from the treasury. She used to

disburse payment and she never maintained the cash book. Sh. Ram Lal,

PW-18 has proved memo Ext. PW-18/ A. Ms. Santosh Kumari, PW-19 has

proved memo Ext. PW-19/A. Sh. Sarva Singh, PW-20 has proved memo

Ext. PW-20/A. Sh. Jagdish, PW-21 deposed that he supplied books to BPO

Dodra Kawar on 26.5.2001 valuing Rs. 54,051/-. The books were received

by Ram Dutt, Teacher. Sh. Sri Lal, PW-22, has proved memo Ext. PW-

22/A. Sh. Sunil Kumar, PW-23, has proved memo Ext. PW-23/A. Sh.

Partap Singh, PW-24, has proved me mo Ext. PW-24/A. Ms. Sulkshana

Devi, PW-25, has proved Ext. PW-25/A. Sh. Ramesh Kumar, PW-26 has

proved stock register Ext. PW-26/B. Sh. Sarva Nand, PW-27 has proved

PW-27/A and PW-27/B. Sh. Sushil Kumar, PW-28 has proved stock

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 13

register Ext. PW-28/A and PW-28/B. Sh. Rajinder Lal, PW-29, has proved

memo Ext. PW-29/A. Sh. Vinod Kumar, PW-30 has proved copy of FIR

Ext. PW-30/B. Sh. Lal Man, PW-31, has proved copy of FSL report Ext.

PW-31/B. Sh. Anant Ram, PW-32, deposed that he had seized the record

from Govt. School, Kawar through memo Ext. PW-12/A. He had also

seized record and vouchers from Govt. School Jiskoon on 23.11.2006

through memo Ext. PW-5/B. Sh. Naratta Ram, PW-33, testified that he

seized records from GPS Lagnoo through memo Ext. PW-18/A and from

GPS Chamdar through memo Ext. PW-19/ A. He also seized record from

GOPS Jakha through memo Ext. PW-20/A. The record from GPS Jiskoon

was seized through memo Ext. PW-22/A. He also made the statement the

manner in which the record was seized. In his cross-examination, he

admitted that the accused was dealing with five departments.

27. Sh. Satyen Vaidya, Advocate, has vehemently argued that the

items were received and payments were duly made. There is a detailed

procedure, the manner in which the payment is to be made as per the H.P.

Financial Rules, 1971. The payment is to be made after the receipt of the

material and the receipt is to be obtained after the payment is made.

28. Now, as far as bill No. 26 dated 20.10.2001 is concerned, it

was drawn in favour of Sharma General Store, Rahman, Deep Chand and

Thampi Singh but payment was received as per the cash book by accused

himself. There was no mention that the payment was made to these

persons. Bill No. 27 Ext. A-11 was drawn in favour of M/S Himachal

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 14

Emporium but payment in the cash book was shown to have been received

by Pratap Singh Ranaut and cash book did not show that the payment was

ever made to M/S Himachal Emporium but bills were obtained from M/S

Latawa Furnishers. However, Latawa Furnishers were never claimant and

no payment was shown to have been made to Latawa Furnishers in the

cash book. The sanction order Ext. A-19 showed payment was drawn

favouring Raj Pal Stationery and bills were that of Gian Bhandar (Ext. A-20

to A-43). The cash book did not show that either Raj Pal Stationers or

Gian Bhandar were paid the money but the payment was received by

Pratap Singh Ranaut himself. Bill No. 38 was drawn and claimant was

M/S Himachal Emporium, sanction was Ext. A-46. However, payment was

received by accused and bill was of M/S Latawa Furnishers in the cash

book. As far as bill No. 39 Ext. A-47 is concerned, the material was

received but account books were not maintained in conformity with the

financial rules and did not reflect the true picture of the transactions. The

appellant could not withdraw the amount in his name. The withdraw of

the amount in his own name amounts to misconduct.

29. Mr. Satyen Vaidya, Advocate, submits that taking into

consideration the peculiar facts and circumstances of the case, the

sentence imposed in Corruption case No. 12-S/2008, may be ordered to

run concurrently. There is sufficient force in his contention since the

accused was involved in two financial years i.e. 2000-01 and 2001-02. He

was admittedly looking after more than 5-6 departments.

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 15

30. Their lordships in the case of V.K. Bansal vrs. State of

Haryana and another, reported in (2013) 7 SCC 211, have held that

Court should exercise its discretion judicially and not mechanically in each

case, having regard to nature of offence and particular fact situation while

exercising discretion under Section 427(1) to direct sentences to run

concurrently. It has been held as under:

“10. We are in the case at hand concerned more with the

nature of power available to the Court under Section 427(1) of

the Code, which in our opinion stipulates a general rule to be

followed except in three situations, one falling under the

proviso to sub-section (1) to Section 427, the second falling

under sub-section (2) thereof and the third where the Court

directs that the sentences shall run concurrently. It is manifest

from Section 427(1) that the Court has the power and the

discretion to issue a direction but in the very nature of the

power so conferred upon the Court the discretionary power

shall have to be exercised along judicial lines and not in a

mechanical, wooden or pedantic manner. It is difficult to lay

down any strait jacket approach in the matter of exercise of

such discretion by the Courts. There is no cut and dried

formula for the Court to follow in the matter of issue or refusal

of a direction within the contemplation of Section Page 8 8

427(1). Whether or not a direction ought to be issued in a given

case would depend upon the nature of the offence or offences

committed, and the fact situation in which the question of

concurrent running of the sentences arises.”

31. In the case of A. S. Naidu vrs. The State of Madhya

Pradesh, reported in 1975 Cri.L.J. 498, the Division Bench has held

that the High Court can exercise its discretion under sub-section (1) of

Section 397 and direct the sentence awarded in a subsequent trial to run

concurrently with the sentence awarded in a previous trial, even after the

appeals or revisions preferred by the convict against his conviction in the

said trials have been dismissed. It has been held as under:

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 16

“[9] Having come to the conclusion that Sub-section (1) of

Section 397 of the Code confers an independent power on the

Court to direct a subsequent sentence to run concurrently with

the sentence in an earlier case, the question of exercising the

power under its inherent jurisdiction does not arise. We may

here mention that the learned counsel for the State invited our

attention to the decision of a Division Bench of this Court in

Dhyan-Singh v. The State of Madhya Pradesh Misc. Cri. C. No.

157 of 1970, D/- 20-3-1971 (Madh Pra), in which it has been

held that the power to release an accused on probation of good

conduct cannot be exercised after the delivery of judgment This

decision cannot, however, be considered as an authority on the

question whether the power under Sub-section (1) of Section

397 of the Code can be exercised after the delivery of

judgment. An order releasing an offender after due admonition

under Section 3 of the said Act or an order releasing an

offender on probation of good conduct under Section 4 is

passed in lieu of sentence, Section 9 of the Act provides that

where the offender fails to observe the conditions of the bond,

he may be awarded a sentence for the original offence. Thus,

an order under the Act is in lieu of sentence and, being a

matter pertaining to the award of sentence, must be passed

when sentence is awarded and not at a later stage. The

aforesaid decision has, therefore, no bearing on the question

posed for consideration in this case.

[10] To sum up, we hold that subsection (1) of Section 397 of

the Code confers an independent power on the Court to direct

a subsequent sentence awarded in a case to run concurrently

with the sentence awarded in an earlier case, which can be

exercised even after the disposal of the case on merits since it

does not involve any review of the judgment on merits.”

32. In the case of Amar Nath vrs. Alfa, reported in AIR 1969

Delhi 133, the learned Single Judge has held that sentence in subsequent

trial can be ordered to run concurrently with previous one. It has been

held as under:

“4. It will be seen that section 397, as it now stands, gives

power to a Court to direct that a subsequent sentence shall

run concurrently with a previous sentence. Before the

amendment of the Code in the year 1923, except where several

sentences were passed at one trial or where in the case of a

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 17

youthful offender, section 32 of the Reformatory Schools Act,

1897 (VIII of 1897) applied, there was no provision by which a

subsequent sentence could be made to run concurrently with a

previous sentence. Section 397, prior to its amendment in that

year, was in the following terms:

"When a person already undergoing a sentence of

imprisonment, penal servitude or transportation is sentenced

to imprisonment, penal servitude or trans portation, such

imprisonment, penal servitude or transportation shall

commence at the expiration of the imprisonment, penal

servitude or transportation to which he has been previously

sentenced.

Provided that if he is undergoing a sentence of imprisonment,

and the sentence on such subsequent conviction is one of

transportation, the Court may, in Its discretion, direct that the

latter sentence shall commence immediately, or at the

expiration of the imprisonment to which he has been

previously sentenced."

8. Under section 397 of the Code It was competent for the

Magistrate, First Class, Chamba, to order that the subsequent

sentence shall run concurrently with the previous sentence.

Shri K. C. Pandit, learned counsel for State, also did not

support the recommendation made by the learned Additional

Sessions Judge.”

33. In the case of Sadashiv Chhokha Sable vrs. State of

Maharashtra, reported in 1993 Cri. L.J. 1469, the Division Bench of

the Bombay High Court has held that a person sentenced to imprisonment

must, for the purpose of S. 427, be deemed to be undergoing that sentence

from the very moment the sentence is passed. The accused may be on bail

or in custody in the earlier case at the time of passing of the subsequent

sentence. It has been held as under:

“6. We must notice that the learned Public Prosecutor for the

State had contended that Section 427 Cr.P.C. is not attracted

in the instant matter because the petitioner was not

"undergoing a sentence of imprisonment" as contemplated

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 18

under that provision, when subsequent sentence was awarded.

According to him, unless the offender is physically in jail to

suffer the sentence of imprisonment at the time of subsequent

sentence, Section 427(1) cannot be pressed into service. In our

view, such an approach to the provision would not be object

oriented. Normal principle is that sentences should take effect

immediately on conviction. Criminal Procedure Code provides

that where several sentences are passed, such sentences

should run one after the other i.e. consecutively unless the

Court directs otherwise i.e. concurrently. A person sentenced

to imprisonment must, for the purpose of Section 427, be

deemed to be undergoing that sentence from the very moment

the sentence is passed. The accused may be on bail or in

custody in the earlier case at the time of passing of the

subsequent sentence. There cannot be legislative intention to

deny the benefit of the provision even in a deserving case by

virtue of the only fact that the convict is on bail or in custody

or could not be taken within the portals of prison for some

genuine reason. Literal construction on the terminology

"undergoing a sentence of imprisonment" as suggested on

behalf of the State - would lead to absurd results specially

where two separate sentences are awarded one after the other

on one day in two different trials. Either the learned Judge

would not exercise the discretion only because in the earlier

case he had not gone inside the jail by that time or he will have

to actually send the convict inside the jail for some time, and

call him back immediately to pronounce judgment in the

second case. We do not think such a absurd and farcical

situation was intended by the legislature.”

34. In the instant case, the accused has been enlarged on bail for

the previous conviction.

35. Mr. Anoop Chitkara, Advocate , has vehemently argued that

since his client was to look after many departments as DDO, lenient view

may be taken. There is merit in his contention. Mr. Satyen Vaidya,

Advocate, has also argued that since his client has been convicted in

Corruption case No. 12-S/7 of 2008 for the financial year 2001-02, the

::: Downloaded on - 03/11/2022 19:33:02 :::CIS

High Court of H.P. 19

sentence imposed in Corruption Case No. 11-S/7 of 2008 may be ordered

to run concurrently.

36. Accordingly, Cr. Appeal No. 52 of 2012 is partly allowed. The

sentence imposed upon the appellant under Section 409 IPC is reduced to

one year but the fine is increased to Rs. 50,000/- and in default of

payment of fine, the accused shall suffer further imprisonment for three

months. Cr. Appeal No. 124 of 2012 is dismissed. The sentence imposed

upon the appellant in Corruption Case No. 12-S/7 of 2008 is ordered to

run concurrently with the earlier sentence imposed in Corruption Case No.

11-S/7 of 2008.

April 08, 2015, ( Rajiv Sharma ),

(karan) Judge.

::: Downloaded on - 03/11/2022 19:33:02 :::CIS