GAGAN KUMARversusTHE STATE OF PUNJAB

                       [2019] 3 S.C.R. 367                              367


                         GAGAN KUMAR                                    A
                                 v.
                     THE STATE OF PUNJAB
                 (Criminal Appeal No. 266 of 2019)
                       FEBRUARY 14, 2019                                B
              [ABHAY MANOHAR SAPRE AND
                DINESH MAHESHWARI, JJ.]
      Code of Criminal Procedure, 1973: s.31 – Sentences in cases
of conviction of several offences at one trial – Compliance of s. 31,
                                                                        C
by the Magistrate – Held: Magistrate should specify in the order by
taking recourse to s. 31 as to whether the punishment of sentence
of imprisonment so awarded for each offence would run concurrently
or consecutively – On facts, Magistrate while passing the order of
sentence erred in not mentioning as to whether the two punishments
awarded to convict u/s. 279 and 304-A IPC would run concurrently        D
or consecutively – In view of the facts and circumstances of the
case, both the sentences awarded by Magistrate to run
‘concurrently’.
      Partly allowing the appeal, the Court
      HELD: 1.1 It was necessary for the Magistrate to have             E
ensured compliance of Section 31 of the Code of Criminal
Procedure, 1973 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. In such a
situation, it was necessary for the Magistrate to have specified        F
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.
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.       G
[Paras 16-18] [370-F-H; 371-A]
      1.2 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
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368            SUPREME COURT REPORTS                         [2019] 3 S.C.R.


A     corrected it. It was, however, not done and hence interference is
      called for to that extent. [Para 19] [371-B]
             1.3 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
B     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.
      Having regard to the facts and circumstances of the case and
      keeping in view the nature of controversy involved in the case,
C     both the sentences awarded by the Magistrate to the appellant
      would run “concurrently”. [Paras 20, 21] [371-C-D]
            1.4 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,
D     there is no good ground to interfere in such finding. The finding
      of conviction and sentence under both the Sections, awarded by
      the Magistrate is upheld. [Paras 22, 23] [371-E, F]
            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 266 of 2019.
E
           From the Judgment and Order dated 26.11.2018 of the High Court
      of Punjab and Haryana at Chandigarh in CRR No. 42 of 2018 (O&M).
            Devesh Kumar Tripathi, Adv. for the Appellant.
           Ms.Jaspreet Gogia, Ms.Mandakini Singh, Advs. for the
F     Respondent.
            The Judgment of the Court was delivered by
            ABHAY MANOHAR SAPRE, J. 1. Leave granted.
            2. This appeal is directed against the final judgment and order
G     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.


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             GAGAN KUMAR v. STATE OF PUNJAB                                369
               [ABHAY MANOHAR SAPRE, J.]

      3. The appeal involves a short controversy as would be clear         A
from the facts set out hereinbelow.
       4. 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 CHI 88530 of 2013 by
the Judicial Magistrate 1st Class, Jalandhar by order dated 12.05.2017.    B
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/-            C
                                 and in default of payment of
                                 fine to undergo simple
                                 imprisonment for fifteen days.
     Under Section               To        undergo       rigorous
     304-A of IPC                imprisonment for two years and
                                 to pay a fine of Rs.1000/- and in         D
                                 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       E
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.        F
      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
                                                                           G
appellant.
      9. Heard learned counsel for the parties.



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370            SUPREME COURT REPORTS                          [2019] 3 S.C.R.


A            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
B     punishments awarded to the appellant under Section 279 and Section
      304-A IPC would run concurrently or consecutively.
            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
C     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
D     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.
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             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
F     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 304-A IPC.
G
             17. 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.
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              GAGAN KUMAR v. STATE OF PUNJAB                                     371
                [ABHAY MANOHAR SAPRE, J.]

        18. Indeed, it being a legal requirement contemplated under Section      A
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,        B
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 fine amount of Rs.1000/- and in default of payment
of fine amount to further undergo one month simple imprisonment under            C
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.
       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           D
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               E
ground to interfere in such finding.
      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             F
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.


Nidhi Jain                                              Appeal partly allowed.   G




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