Lalthakima vs State of Mizoram

Heard Ms. H. Lalmalsawmi, learned Amicus Curiae and Mr. A.K. Rokhum, learned Public Prosecutor for the State.

This appeal is filed by the convict appellant from jail against the judgment & order dated 26.11.2015, passed by the Court of the Chief Judicial Magistrate, Kolasib, in Criminal Trial No. 393/2015, by which the appellant has been convicted under Section 457/34 IPC and sentenced to undergo Rigorous Imprisonment for 3 years with a fine of Rs. 2,000/-, in default Rigorous Imprisonment for 2 months. He was also convicted under Section 380/34 IPC and sentenced to undergo Rigorous Imprisonment for 2 years with a fine of Rs. 2,000/-, in default Rigorous Imprisonment for 2 months.

The sentences were to run consecutively.

As per the documents on record, the appellant was convicted by the Court of the Chief Judicial Magistrate, Kolasib vide judgment & order dated 26.11.2015, passed in Criminal Trial No. 393/2015, arising out of Kolasib P.S Case No. 123/2015. The appellant had been convicted under Section 457/34 IPC and sentenced to undergo Rigorous Imprisonment for 3 years with a fine of Rs. 2,000/-, in default Rigorous Imprisonment for 2 months.

He was also convicted under Section 380/34 IPC and sentenced to undergo Rigorous Imprisonment for 2 years with a fine of Rs. 2,000/-, in default Rigorous Imprisonment for 2 months. Thereafter, the appellant preferred Criminal Appeal No. 18/2017 (J) before this Court, which was disposed off vide order dated 09.06.2017, by directing the Registry of this Court to forward the appeal to the learned Sessions Judge, Aizawl for consideration, as the Court of the Chief Judicial Magsitrate was sub-ordinate to the Sessions Court.

Thereafter, the Court of the Addl. Sessions Judge — II, Aizawl disposed of the appellant’s appeal vide order dated 04.10.2017 passed in Criminal Appeal No. 3/2017, by holding that the impugned judgment & order dated 26.11.2015, passed by the Court of the Chief Judicial Magistrate had already been dismissed on revision by the Court of the Sessions Judge, Aizawl in Criminal Revision Petition No. 6/2016, wherein the conviction and sentences were upheld. The Court of the learned Sessions Judge — II, Aizawl thus held that it had no jurisdiction to interfere with the impugned Judgment & Order dated 26.11.2015 passed by the Trial Court, in view of the above reason.

The records of Criminal Trial No. 393/2015 from the Court of CJM, Kolasib and records of Criminal Appeal No. 3/2017, Criminal Revision No. 5/2016, Criminal Revision No. 23/2017 and Criminal Revision No. 6/2016 from the Court of Sessions Judge, Aizawl were called for.

A perusal of the records show that the appellant’s conviction by the Court of Chief Judicial Magistrate, Kolasib in Criminal Trial No. 393/2015 was put to challenge in Criminal Revision No. 6/2016 by the appellant and co-accused/convict, namely, Sh. Laldingliana. Criminal Revision No. 6/2016 had been filed by the appellant herein and Sh. Laldingliana with a prayer to make the sentences run concurrently and not consecutively. Criminal Revision No. 6/2016 was however dismissed vide order dated 27.04.2016 by the Court of the Sessions Judge, Aizawl.

In view of the above order dated 27.04.2016, the appellant’s appeal, i.e., Criminal Appeal No. 3/2017 was disposed off vide order dated 04.10.2017, wherein the Sessions Court held as follows:

“The applications filed against the Judgment & Order dated 26.11.2015 passed by the ld. Chief Judicial Magistrate, Kolasib in Crl. Tr. No. 393/2015 U/s 457/380 IPC are heard and disposed off.

The Judgment & Order dated 26.11.2015 was already revised and disposed of by the ld. District & Sessions Judge, Aizawl in Crl. Rev. No. 6/2016 wherein the conviction and sentences was upheld.

In the circumstances, I have no jurisdiction to interfere with the Judgment & Order dated 26.11.2015 passed by the ld. Chief Judicial Magistrate, Kolasib in Crl. Tr. No. 393/2015 U/s 457/380 IPC.

Cases are disposed off.

Send back the ld. Lower Court records.”

The grievance of the appellant is basically to the effect that he has been convicted under Section 457/34 IPC and 380/34 IPC and sentenced to undergo punishment under Section 457 IPC for 3 (three) years with a fine of Rs. 2,000/-, i.d. R.I for 2 (two) months. He was also sentenced to undergo 2 (two) years R.I. with a fine of Rs. 2,000/-, i.d R.I for 2 (two) months under Section 380/34 IPC. The learned Trial Court had directed that both the sentences were to run consecutively and not concurrently. The appellant herein has prayed that the sentences should run concurrently.

The learned Amicus Curiae submits that though the Trial Court had the power to direct the running of the sentences imposed upon the appellant consecutively, the punishment was too harsh and the same should run concurrently. The learned Amicus Curiae also submits that no further appeal could be filed in the High Court, as the appellant’s criminal revision had been dismissed by the Court of the Sessions Judge, Aizawl in Criminal Revision No. 6/2016, though this Court could reexamine the correctness of the sentences imposed upon the appellant by invoking its inherent power under Section 482 Cr.P.C. In this regard, the learned Amicus Curiae has relied upon the Judgments of the Apex Court in the case of Nagaraja Rao Vs Central Bureau of Investigation, reported in (2015) 4 SCC 302 and Duryodhan Rout Vs State of Orissa, reported in (2015) 2 SCC 783.

The learned Public Prosecutor on the other hand, has submitted that there is no infirmity with the sentences passed by the Trial Court, by which the sentences imposed upon the appellants are to run consecutively and not concurrently, as the appellant is a habitual offender and has been convicted numerous times in similar cases. He also submits that as it is not the appellant’s case that he is innocent, the only issue at hand is whether the sentences should run concurrently or consecutively. The learned Trial Court having directed that the sentences should run consecutively and the same being upheld by the Sessions Court in Criminal Revision No. 6/2016, the learned Public Prosecutor submits that it would not be proper for this Court to exercise its inherent power, as the same has to be used sparingly and only for extra-ordinary cases/situations.

I have heard the learned counsels for the parties.

The appellant was convicted by the Court of the CJM, Kolasib and sentenced to undergo Rigorous Imprisonment for 3 years with a fine of Rs. 2,000/-, i.d. R.I for 2 months under Section 457/34 IPC. He was also convicted under Section 380/34 IPC and sentenced to undergo Rigorous Imprisonment for 2 years with a fine of Rs. 2,000/-, i.d. R.I for 2 months.

The conviction of the appellant and the co-accused Sh. K. Laldingliana was on account of the fact that they had stolen 2 gas cylinders by breaking into a house at night. The past criminal record of the appellant was also recorded in the order of the Trial Court and the same shows that the appellant had been convicted and sentenced for various offences as follows:-

“1) Crl. Tr. 134/2009 u/s 380 IPC SI for 1 year and 20 days. 2) Crl.Tr.No. 785/2010 u/s 13(1) of ADC Act, 2 years and 5 months. 3) Crl.Tr.No.

258/2011 u/s 13(1) of ADC Act, SI for 1 year and 6 months. 4) Crl.Tr.N.FIR 2013 u/s 8(3) of MLTP Act R/w 506 IPC 37 days. 5) Crl.Tr.FIR C/No.

22/pt-11/15 u/s 43(2) of MLPC Act R/w 506 IPC 30 days. “

The Order dated 27.04.2016 passed by the Sessions Court rejecting the appellant’s Criminal Revision No. 6/2016 states that the grievance of the appellant against the Judgment & Order dated 26.11.2015 passed by the Court of the CJM, Kolasib in Criminal Trial No. 393/2015 is that the sentences being severe, the sentences should be reduced or made to run concurrently and not consecutively.

In the present appeal also, the only prayer made by the appellant is for a direction that the sentences imposed upon the appellant should run concurrently and not consecutively. There is no stand taken by the appellant in the present appeal that he is innocent of the offence of house breaking at night and stealing of the two gas cylinders, alongwith an accomplice.

The first question that has to be seen is whether the Trial Court could have directed that the sentences imposed upon the appellant should run consecutively and not concurrently. In this respect, Section 31 of the Cr.P.C allows for the Trial Court to impose several punishments in a trial, where a person is convicted of two or more offences. Section 31 of the Cr.P.C is reproduced below:-

“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 Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefore 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.”

In the case of Nagaraja Rao Vs Central Bureau of Investigation, reported in (2015) 4 SCC 302, the Apex Court has held at paragraph Nos. 16 as follows:-

“16. The following observations made by this Court in paras 9 and 10 are apposite:

“9. The section relates to administration of criminal justice and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive?

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 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 the case of O.M. Cherian Vs State of Kerala, reported in (2015) 2 SCC 501, the Apex Court has held 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 Section 31 (2) CrPC. In Section 31(1) CrPC, since the word “may” is used, 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 the provisions of Section 71 IPC. But the aggregrate must not exceed the limit fixed in provisos (a) and (b) of Section 31 (2) 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. However, the “fourteen years’ rule” contained in clause (a) of the proviso to Section 31 (2) CrPC is not 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. The ambit of Section 31 CrpC is wide, covering not only a single transaction constituting two or more offences but also offences arising out of two or more transactions.

Thus, from a reading of the law laid down by the Apex Court, it is clear that under Section 31 Cr.P.C the Trial Court has full discretion to order sentences to run concurrently or consecutively in cases of conviction for 2 or more offences. However, if a given transaction constitutes 2 offences under 2 enactments, generally it is wrong to have consecutive sentences and it is proper and legitimate to have concurrent sentences. In the present case, the Trial Court did not commit any error in directing the running of the sentences consecutively.

The next question to be decided is whether the present appeal is maintainable, as the judgment and order of the Trial Court has been upheld by the Sessions Court in Revision. Further, the appellant’s challenge to the Trial Court judgment and order has been made only on the ground that two sentences imposed upon the appellant should run concurrently and not consecutively. The Order dated 27.04.2016, by which Criminal Revision No. 6/2016 was dismissed by the Sessions Court, Aizawl has become final. Further, no appeal can be filed against the impugned Judgment & Order dated 26.11.2015 passed by the Trial Court when the revision petition itself has been dismissed. However, even when a revision has been dismissed, the Apex Court has held that the High Court can exercise its inherent power under Section 482 Cr.P.C, if the order passed was illegal, improper or arbitrary. However, the same has to be used sparingly and as far as possible for extra ordinary cases.

In the case of Dinesh Dutt Joshi Vs State of Rajasthan, reported in (2001) 8 SCC 570, the Apex Court has held Section 482 CrPC confers upon the High Court inherent powers to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Every court has inherent power to act ex debito justitiae — to do real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the court. The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. The section has been embodied to cover the lacunae which are sometimes found in the procedural law. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.

In the case of Gunmala Sales Private Limited Vs Anu Mehta & Ors, reported in (2015) 1 SCC 103, the Apex Court has held at paragraph 34.4 as follows:-

“34.4. No restriction can be placed on the High Court’s powers under Section 482 of the Code. The High Court always uses and must use this power sparingly and with great circumspection to prevent inter alia the abuse of the process of the court. There are no fixed formulae to be followed by the High Court in this regard and the exercise of this power depends upon the facts and circumstances of each case.”

In the case of Amit Kapoor Vs Ramesh Chander, reported in (2012) 9 SCC 460 the Apex Court has held the provisions of Section 482 CrPC are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.

A reading of the Judgments of the Apex Court with regard to the inherent power under Section 482 Cr.P.C, goes to show that though there is no ban on the exercise of the inherent power of the High Court where there is an abuse of the process of the Court, due to other extra-ordinary situations or to serve the ends of justice, Section 482 requires the Court to act in self restraint and not to exercise the same where the situation is wholly unwarranted or undesirable. In the present case, the appellant has been sentenced for a total of 5 years as the sentences under 457/34 IPC and under Section 380/34 IPC were to run consecutively. This Court, on considering the fact that the appellant had been convicted on an earlier occasion under Section 380 IPC also and though this Court finds that there has been no abuse of the process of the Court, finds that the sentence of 2 years awarded for the theft of 2 gas cylinders is extremely severe.

Accordingly, in view of the above reason, by invoking its inherent power under Section 482 Cr.P.C, this Court for the ends of justice, modifies the sentence imposed upon the appellant under Section 380/34 IPC to 1 year with a fine of Rs. 2,000/-, in default R.I for 2 months. This Court is not inclined to interfere with the order passed with respect to the sentence imposed by the Trial Court under Section 457/34 IPC. Also, as this Court has already taken the view that no order needs to be issued with the Trial Court order directing that the sentences will run consecutively, the sentences imposed will run consecutively, i.e., R.I for 3 years with a fine of Rs. 2,000/-, in default R.I for 2 months in respect of Section 457/34 IPC and sentence of 1 year with a fine of Rs. 2,000/-, in default R.I for 2 months in respect of Section 380/34 IPC. In view of the sentences indicated above, the impugned Judgment & Order dated 26.11.2015 passed in Criminal Trial No. 393/2015 and the Judgment & Order dated 26.11.2015 passed in Criminal Revision Petition No. 6/2016 are hereby modified to the extent indicated above.

The appeal is accordingly disposed of. Send back the LCR.

In appreciation of the assistance given to this Court, the fee of the learned Amicus Curiae is fixed at Rs. 7,500/-, which should be paid by the State Legal Services Authority.