Hardly Any Enquiry About Accused's Previous Conduct Before Sentencing: Punjab & Haryana HC Issues Directions For Trial Courts In Cheque Dishonour Cases

The Punjab & Haryana High Court has issued directions to the trial court which deal with the trials of Section 138 of the Negotiable Instrument Act (NI Act), observing that it "trial courts hardly inquire about accused's previous conduct before passing the order of sentence, whereas, it is significant to do so to exercise the discretionary power (to order running of concurrent sentence) endowed by Section 427 of the CrPC."

While hearing a batch of pleas for seeking directions to run sentences in different cases under the NI Act concurrently, the Court said that the plea under Section 482 of the Cr.P.C. is not maintainable for claiming the relief of concurrence of sentences.

It highlighted that the petitioner had to undergo imprisonment of 12 years in 10 different cases because the trial Court  pronouncing the subsequent orders of sentence upon the petitioner "were not informed or made aware about the petitioner's previous conviction."

Justice Kuldeep Tiwari observed that, "had the convicting courts inquired about the petitioner's previous conviction and sentence either from the prosecution or from the defence, it could have ably exercised its discretionary jurisdiction under Section 427 of the Cr.P.C."

Therefore, to curb this irregularity and to avoid the occurrence of any such situation, as occurred in the cast at hand, this Court issued the following directions to all the trial courts, which deal with the trials of Section 138 of the N.I. Act:

(i) In the event of a trial concluding in conviction of accused for commission of offence punishable under Section 138 of the N.I. Act, the trial court shall, before drawing the order of sentence, adjourn the case, thus enabling the prosecution/ defence to place on record material pertaining to previous conviction of accused;

(ii) On the adjourned date, the trial court shall draw the order of sentence but by appending a note therein as to whether any material pertaining to convict's previous conviction is placed on record or not and if any such material is placed on record, it shall within the legal parameters exercise the discretionary power under Section 427 of the Cr.P.C.

Background

The Court was hearing a batch of petitions involving the common issue of directions for ordering the sentences awarded to the petitioners in different cases, for offences punishable under Section 138 NI Act, "to run concurrently." For the sake of brevity, the Court considered the facts of one of the cases wherein the petitioner was convicted in 10 different cases and primarily awarded a total of 12 years of civil imprisonment as a substantive sentence.

Referring to Section 427 CrPC (Sentence on offender already sentenced for another offence), the senior counsel appearing for the petitioner argued that once the petitioner became convicted by the trial Court concerned for the commission of an offence punishable under Section 138 of the N.I. Act, the trial Court concerned ought to have, while convicting the petitioner in the subsequent nine cases of a similar nature, bearing in mind the fact of his previous conviction.

However, as is evident from the conviction verdicts of those subsequent nine cases, no reference has been made by the trial Court to the petitioner's previous conviction, for the reason that either the said plea did not become raised by the petitioner, or if raised, did not find favour with the trial Court concerned, it added.

After hearing the submissions and examining the records, the Court considered the issue, “whether the instant petition under Section 482 of the Cr.P.C., thereby seeking concurrence of sentences awarded to the petitioner by different courts through different verdicts in different cases is maintainable?”

The judge noted that the full bench of the High Court in Jang Singh v. State of Punjab, [2007(2) ILR Punjab and Haryana 550], on the issue of maintainability of a petition under Section 482 of the CrPC and said, "thus seeking conversion of consecutive sentence into concurrent sentence, has been dealt with and answered in negative. Therefore, following judicial discipline, this Court is bound by the view adopted by Full Bench of this Court and consequently, the instant petition(s) is not maintainable in the present form." 

The Court also examined the verdict in Arnab Manoranjan Goswami Vs. State of Maharashtra and others, wherein, the inherent power of the High Court under Section 482 of the Cr.P.C. is held to be a valuable safeguard for protecting liberty; preventing the abuse of the process of court; and/or securing the ends of justice.

"However, since the very existence and maintainability of the instant petition under Section 482 of the Cr.P.C. is already answered in negative, therefore, the verdict (supra) would not come to the rescue of the petitioner," the judge observed.

Justice Tiwari highlighted that after the dismissal of the present petitions, the petitioner has to undergo actual imprisonment of 12 years, apart from the sentences awarded for default in payment of the fine. He said that this situation had arisen because the case at hand is a case of multiple prosecutions in different cases and the courts pronouncing the subsequent orders of sentence upon the petitioner were not informed or made aware of the petitioner's previous conviction.

"The order of concurrence of sentence in the cases listed at Sr. Nos.8 to 10 was possible only because the convicting court was the same. In case, the convicting courts were aware about the previous sentences of the petitioner, then the totality of the sentences would have persuaded or compelled it to examine the end situation," the Court observed.

It further said that from the facts of the case at hand, it is undeniable that the provisions of Section 427 of the Cr.P.C. often go unnoticed at the stage of passing an order of sentence, both at the grassroots levels of the trial court and the appellate court. As a general practice, trial courts do not inquire about the convict's previous conviction at the time of passing the order of sentence, whereas, the issue of previous conviction and sentence is always relevant both for the purpose of exercising the discretionary power under Section 27 of the Cr.P.C. and for imposing harsher sentence in appropriate cases.

The Court noted that the situation probably occurs for the reason that, the provision of Section 54 of the Indian Evidence Act does not permit a reference to previous conduct of the accused at the stage of trial, except in reply, as laid down in the Section.

Reference was also made to Section 236 of the CrPC, which prohibits even the trial court from bringing on record the previous conviction of an accused before the conclusion of the trial and/or conviction of the accused for the main charges.

In the light of the Court issued the aforesaid directions to the trial Courts and directed to forthwith forward the copy of the order "to all the District and Session Judges functioning under jurisdiction of this Court, for its becoming further forwarded to the courts under their respective jurisdictions, which are dealing with the trials of Section 138 of the N.I. Act, for information and compliance."

Mr. R.S. Cheema, Sr. Advocate with Mr. Siddharth Bhukkal, Advocate for the petitioner (in CRM-M-44318-2022).

Mr. Sanjeev Roy, Advocate for Mr. I.P.S. Doabia, Advocate for the petitioner (in CRM-M-16633-2023).

Mr. Vikas Lochab, Advocate for the petitioner (in CRM-M-21383-2024).

Mr. Anil Kumar Lamdharia, Addl. P.P., U.T. Chandigarh with Mr. Krishan Garg, Advocate.

Mr. Bhupender Singh, D.A.G., Haryana.

Title: MANOJ JAIN v. STATE OF UT CHANDIGARH AND ANOTHER [other connected matters]

Citation: Citation: 2024 LiveLaw (PH) 164

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