At the outset, it has to be acknowledged and applauded that in a latest, landmark and laudable judgment titled Gagan Kumar v The State of Punjab in Criminal Appeal No. 266 of 2019 (Arising out of S.L.P. (Cri.) No. 10727 of 2018 delivered on February 14, 2019 and authored by Justice Abhay Manohar Sapre for himself and Justice Dinesh Maheshwari has remarkably held that it is a mandatory legal requirement for Magistrate to specify whether sentences awarded to an accused convicted for two or more offences, would run concurrently or consecutively. This has to be complied with. But in practice, we see that it is observed more in breach and this is why Supreme Court frowned on it and declared it as a mandatory legal requirement.
To start with, para 1 sets the ball rolling by holding that, “Leave granted”. Para 2 then going one step forward discloses that, “This appeal is directed against the final judgment and order dated 26.11.2018 passed by the High Court of Punjab & Haryana at Chandigarh 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.”
To put it succinctly, after noting in para 3 that, “The appeal involves a short controversy as would be clear from the facts set out hereinbelow”, it is then noted in para 4 that, “The appellant was prosecuted and eventually convicted for the offences punishable under Sections 279 and 304-A of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) in CH188530 of 2013 by the Judicial Magistrate 1st Class, Jalandhar by order dated 12.05.2017. On the quantum of sentence, the Judicial Magistrate passed the following order:
Under Section 279 To undergo rigorous
Of IPC imprisonment for six
months and to pay a fine of
of Rs. 1000/- and in default of
payment of fine to undergo
simple imprisonment for
fifteen days.
Under Section 304-A To undergo rigorous
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.”
As it turned out, it is then observed in para 5 that, “Felt aggrieved by the said order, the appellant (accused) filed CRA/324/2017 before the Additional Sessions Judge, Jalandhar. By order dated 08.12.2017, the Additional Sessions Judge dismissed the appeal and affirmed the order passed by the Judicial Magistrate.”
Needless to say, para 6 then states that, “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.” Para 7 then points out that, “The appellant (accused) felt aggrieved and filed the present appeal by way of special leave in this Court.”
It has to be noted that it is then enunciated in the next relevant para 8 that, “So, the short question, which arises for consideration in this appeal, is whether the Courts below were justified in convicting the appellant.” Now coming to para 10, it points out that, “Learned counsel for the appellant (accused) while assailing the legality and correctness of the impugned order argued only one point.”
Elaborating further, it is then pointed out in para 11 that, “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 304-A IPC would run concurrently or consecutively.”
More importantly, it is then brought out in para 12 that, “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.”
Going ahead, it is then stated in para 13 that, “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 304-A 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 have been directed to run concurrently as provided under Section 31(1) of the Code.”
While strongly countering what has been stated above, para 14 then envisages that, “Learned counsel for the State, however, could not find fault in the legal position, which governs the issue, and, in our view, rightly.” What we then see in next para 15 is this: “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.”
In plain and simple language, it is then stated rightly in para 16 that, “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 304-A IPC.”
To be sure, it is then underscored in para 17 that, “In such a situation, it was necessary for the Magistrate to have specified in the order by taking 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.”
What’s more, it is then enunciated in para 18 that, “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.”
Not stopping here, para 19 then further goes on to add that, “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.”
At the cost of repetition, it is then reiterated in para 20 that, “As mentioned above, the appellant was convicted and accordingly punished with a sentence to undergo two years rigorous imprisonment with a fine amount of Rs. 1000/- and in default of payment of fine amount to further undergo one month simple imprisonment under Section 304-A 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.”
Most importantly, it is then held in para 21 that, “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”.”
It would be imperative to mention here that para 22 then illustrates that, “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.”
Of course, para 23 then states that, “Even otherwise, the learned counsel for the appellant though made attempt to question the finding on merits but not with 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.” Lastly, para 24 concludes by saying that, “The appeal thus succeeds and is allowed in part. The impugned order is modified only to the extent mentioned in para 21 above.”
No doubt, what has been so elegantly and excellently held by this top court must be implemented strictly. All the lower courts must adhere to it in totality. This is the correct proposition of law as very rightly expounded and explained by the top court! Magistrates must adhere to it and specify whether the sentence awarded is to run concurrently or consecutively in the order! There can be no two opinions about it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.
