Pankaj @ Deepak Biswas vs State (Govt. Of Nct) Delhi on 7 November, 2017

$~R-3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : November 07, 2017
+ CRL.A. 825/2013

PANKAJ @ DEEPAK BISWAS ….. Appellant
Through: Mr.Ajay Verma Mr.Narsingh
Narain, Advocates

versus

STATE (GOVT. OF NCT) DELHI ….. Respondent
Through: Ms.Rajni Gupta, APP for the
State

PRATIBHA RANI, J. (ORAL)

CRL.A. 825/2013 CRL.M.A.13105/2017

1. Learned counsel for the appellant on instruction submits that the
appellant is not pressing his appeal on merits. His prayer is limited to
the extent that sentence awarded to the appellant may be ordered to
run concurrently.

2. Vide impugned judgment dated 13th February, 2013, the
appellant was held guilty for committing the offence punishable under
Section 376 IPC, 376/109 IPC, 368 IPC and under Sections 4, 5 6
of the Immoral Traffic (Prevention) Act, 1956. While passing the
order on sentence dated 19th February, 2013 the family circumstances
of the appellant were considered by the learned Trial Court but the
prayer for taking a lenient view was rejected for the following
reasons:-

CRL.A. 825/2013 Page 1 of 6

“9. The fact that the convict has two minor children, who
are at present lodged at Nirmal Chhaya and have nobody
to look after them, does not persuade me to impose a
lighter sentence upon the convict. Admittedly, the wife of
the convict is also underegoing a jail term in similar
offence. It is therefore apparent that the convict and his
wife had been consciously running a sex trade. They have
been bringing minor unsuspecting girls from West Bengal
and throwing them into prostitution in Delhi. They knew
what they are doing is not only immoral but illegal. They
should have cared for the children but they did not do so.
They were the parents of a daughter and should have
realized what would they feel if somebody had done same
thing to their own daughter. They did not care for the
future of their children and continued their illegal
activities. Therefore, the convict cannot now be heard to
say that he should be dealt with leniency for the reason
that there is body to look after his two minor children.

10. The convict is, therefore, sentenced as below:-

(i) to rigorous imprisonment for a period of 10 years
for the offence punishable u/s 376
IPC with a fine of
₹50,000/-. He shall suffer further imprisonment for a
period of one year in case of non-payment of fine.

(ii) to rigorous imprisonment for a period of 7 years
for the offence punishable u/s. 376/109
IPC with a fine of
₹50,000/-. He shall suffer further imprisonment for a
period of one year in case of non-payment of fine.

(iii) to rigorous imprisonment for a period of 7 years
for the offence punishable u/s. 368
IPC with a fine of
₹50,000/-. He shall suffer further imprisonment for a
period of one year in case of non-payment of fine.

CRL.A. 825/2013 Page 2 of 6

(iv) to rigorous imprisonment for a period of 7 years
for the offence punishable u/s. 4 of the
Immoral Traffic
(Prevention) Act, 1956 with a fine of ₹1,000/-. He shall
suffer further imprisonment for a period of one month in
case of non-payment of fine.

(v) to rigorous imprisonment for a period of 7 years
for the offence punishable u/s. 5 of the
Immoral Traffic
(Prevention) Act, 1956 with a fine of ₹2,000/-. He shall
suffer further imprisonment for a period of one month in
case of non-payment of fine.

(vi) to rigorous imprisonment for a period of 10 years
for the offence punishable u/s. 6 of the
Immoral Traffic
(Prevention) Act, 1956 with a fine of ₹50,000/-. He shall
suffer further imprisonment for a period of one year in
case of non-payment of fine.

11. The sentences at Srl.No.(ii), (iii), (iv), (v) and (vi)
shall run concurrently and shall start after the sentence
at Srl.No.(i) comes to end. In other words, the convict
shall first complete the sentence at Srl.No.(i) and then all
other sentences shall start running concurrently.”

3. Learned counsel for the appellant has relied upon the decision
of Hon’ble Supreme Court reported as “O.M.Cherian alias
Thankachan Vs. State of Kerala and Others”, (2015) 2 SCC 501
wherein the principles governing the exercise of discretion for
imposition of sentences for two or more offence at one trial were laid
down as under:-

“16. When the prosecution is based on single transaction
where it constitutes two or more offences, sentences are
to run concurrently. Imposing separate sentences, when

CRL.A. 825/2013 Page 3 of 6
the acts constituting different offences form part of the
single transaction is not justified. So far as the benefit
available to the accused to have the sentences to run
concurrently of several offences based on single
transaction, in
V.K. Bansal vs. State of Haryana Anr. (2013)
7 SCC 211, in which one of us (Justice T.S. Thakur) was
a member, this Court held as under:-

“… we may say that the legal position favours
exercise of discretion to the benefit of the prisoner
in cases where the prosecution is based on a single
transaction no matter different complaints in
relation thereto may have been filed as is the
position in cases involving dishonour of cheques
issued by the borrower towards repayment of a
loan to the creditor.”

17. This Court in the case of Mohd. Akhtar Hussain alias
Ibrahim Ahmed Bhatti vs. Asstt. Collector of Customs
(Prevention) Ahmedabad and Anr., (1988) 4 SCC 183,
recognized the basic rule of conviction arising out of a
single transaction justifying the concurrent running of the
sentences.

The following passage in this regard is relevant to be
noted :-

“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 Manoj alias Panu vs. State of Haryana, (2014) 2 SCC 153,
the Bench followed Mohd. Akhtar Hussain’s case.

CRL.A. 825/2013 Page 4 of 6

18. While referring the matter to a larger Bench, the
Bench observed that in Mohd. Akhtar Hussain’s
case,
Section 31 Cr.P.C. was not noticed by this Court. It is
to be pointed out that in Mohd. Akhtar Hussain’s case
and Manoj’s case, the appellants who were convicted for
different counts of offences arose out of a single
transaction, favouring the exercise of discretion to the
benefit of the accused that the sentences shall run
concurrently. Those decisions are not cases arising out of
conviction at one trial of two or more offences and
therefore, reference to
Section 31 Cr.P.C. in those cases
was not necessitated.

19. As pointed out earlier, Section 31 Cr.P.C. deals with
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. Ambit of
Section 31 is
wide, covering not only single transaction constituting
two or more offences but also offences arising out of two
or more transactions. In the two judgments in Mohd.
Akhtar Hussain and Manoj (supra), the issue that fell for
consideration was the imposition of sentence for two or
more offences arising out of the single transaction. It is in
that context, in those cases, this Court held that the
sentences shall run concurrently.

20. Under Section 31 Cr.P.C. it is left to the full discretion
of the Court to order the sentences to run concurrently in
case of conviction for two or more offences. It is difficult
to lay down any straitjacket approach in the matter of
exercise of such discretion by the courts. By and large,
trial courts and appellate courts have invoked and
exercised their discretion to issue directions for
concurrent running of sentences, favouring the benefit to
be given to the accused. Whether a direction for
concurrent running of sentences ought to be issued in a
given case would depend upon the nature of the offence
or offences committed and the facts and circumstances of

CRL.A. 825/2013 Page 5 of 6
the case. The discretion has to be exercised along the
judicial lines and not mechanically.”

4. Reverting to the facts of the instant case while passing order on
sentence and exercising judicial discretion that sentences at Srl.No.(ii),

(iii), (iv), (v) and (vi) shall run concurrently and shall start after the
sentence at Srl.No.(i) comes to end, learned Trial Court has not
assigned any reason as to why all the sentences were not ordered to
run concurrently.

5. Taking into consideration that the appellant had been convicted
at one trial for the offences under
Section 376/109/368 IPC and
Sections 4/5/6 of Immoral Traffic (Prevention) Act, 1956 for which
separate sentences have been awarded, it is directed that all the
sentences awarded to the appellant shall run concurrently.

6. The appeal stands disposed of in above terms.

7. LCR be sent back alongwith copy of this order.

8. A copy of this order be sent to the concerned Jail
Superintendent for information.

PRATIBHA RANI, J.

NOVEMBER 07, 2017
‘pg’

CRL.A. 825/2013 Page 6 of 6

Leave a Comment

Your email address will not be published. Required fields are marked *