Himachal Pradesh High Court
Shiva Packages & Anr vs State Of Himachal Pradesh & Anr on 14 July, 2025
( 2025:HHC:22690 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 592 of 2025
Reserved on: 2.07.2025
.
Date of Decision: 14th July, 2025
Shiva Packages & anr. ...Petitioners
Versus
State of Himachal Pradesh & anr. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners
r : Mr. K.S. Gill, Advocate.
For the Respondents : Mr. Lokender Kutlehria, Additional
Advocate General, for the
respondent-State.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
ordering the concurrent running of the sentences imposed in
Criminal Complaint No.181/3 of 2016, dated 23.11.2020, and
Criminal Complaint No.62/3 of 2015, dated 23.11.2020, awarded
by the learned Judicial Magistrate First Class, Nahan, District
Sirmaur, H.P. (learned Trial Court)
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2. It has been asserted that respondent
No.2/complainant filed a complaint against the petitioner
.
before the learned Trial Court, which was registered as
complaint No.181/3 of 2016. The petitioner-accused was
convicted and a compensation of ₹1,16,050/- was ordered to be
paid. It was further ordered that in the event of default of
payment of the compensation amount, the petitioner shall
undergo simple imprisonment for two months.
complaint was filed by respondent No.2-complainant, which
was registered as complaint No.62/3 of 2015. The learned Trial
Another
Court sentenced the petitioner-accused to pay a compensation
of ₹81,000/- and in default of the payment of compensation to
undergo simple imprisonment for two months. The petitioner
preferred appeals, but these were dismissed. The petitioner is a
handicapped person. He has served the sentence awarded to
him in one complaint and is behind the bars in another. He was
unable to pay the money due to his physical disability. This
Court has inherent jurisdiction to direct the concurrent running
of the sentence. Hence, it was prayed that the present petition
be allowed and the sentences awarded by learned Judicial
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Magistrate First Class, Nahan, District Sirmaur, H.P. be ordered
to run concurrently.
.
3. I have heard Mr. K.S. Gill, learned counsel for the
petitioner/accused and Mr. Lokender Kutlehria, learned
Additional Advocate General, for the respondent/State.
4. Mr. K.S. Gill, learned counsel for the petitioner,
submitted that the petitioner was sentenced in two different
cases, which arose out of the same transaction. The petitioner
has served a sentence in one complaint, therefore, he prayed
that a direction be issued that both sentences should run
concurrently.
5. Mr. Lokender Kutlehria, learned Additional Advocate
General, for the respondent/State, submitted that the petitioner
was sentenced in two different complaints. The substantive
sentence of imprisonment was not imposed. The petitioner was
directed to pay the compensation, and in default of payment of
compensation, to undergo imprisonment. The sentence in
default of payment of compensation cannot be ordered to run
concurrently. He prayed that the present petition be dismissed.
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6. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
.
7. It was laid down by the Division Bench of this Court
in Sushil Kumar @ Shashi versus State of Himachal Pradesh, 2014
(1) Shimla Law Cases 214 that when a person was convicted for
the commission of two offences in separate trials in respect of
different transactions, the Court cannot pass a direction that
sentences should run concurrently. It was observed:
“12. Their Lordships of the Supreme Court in Mohd.
Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant
Collector of Customs (Prevention), Ahmedabad and another,
[(1988) 4 SCC 183], while taking note of Section 427 of the
Code of Criminal Procedure observed that the crime
committed by the accused is relevant for measuring thesentence, but the maximum sentence awarded in one case
against the same accused should also be kept in mind
while awarding the consecutive sentence in the secondcase although it is grave. The Court has to consider the
totality of the sentences which the accused has toundergo if the sentences are to be consecutive. The
totality principle has been accepted as a correct principle
for guidance. In para 10, the Supreme Court observed asunder:
“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::: Downloaded on – 14/07/2025 21:21:52 :::CIS
5( 2025:HHC:22690 )relating to offences is not the same or the facts
constituting the two offences are quite different.”
13. In M.R. Kudva v. State of A.P., [(2007) 2 SCC 772], the
Supreme Court while taking note of Section 427 of the
.
Code of Criminal Procedure held that when the provision
of this Section is not involved in the original cases or
appeals such an application/petition thereafter is not
maintainable and the High Court has no jurisdiction to
entertain such a request. The said provision cannot be
applied in a separate and independent proceeding. The
reliance can also be placed on another judgment of the
Supreme Court in State of Punjab v. Madan Lal, [(2009) 5
SCC 238] wherein the majority view in State of
Maharashtra v. Najakat, [(2001) 6 SCC 311] has been relied
upon.
14. In the instant case, petitioner Sushil Kumar was
convicted for two offences in separate trials for attempted
murder of a person and murder of another person at two
different times. Both these transactions were different in
time and separate, and were also not interconnected with
each other. Therefore, we are of the opinion that this
Court cannot interfere with the sentences passed in two
separate cases, tried and decided separately under its
inherent jurisdiction; therefore, the petition is
dismissed.”
8. This judgment is binding upon this Court.
9. It was held in Jimee versus State of Himachal Pradesh,
[2013 Latest HLJ (H.P.) 1413 = 2014(1) Him. L.R. 51 = 2013(11)
R.C.R.(Criminal) 70], that the jurisdiction under Section 427 of
Cr.P.C. cannot be exercised in respect of two different
transactions having taken place at two different places. It was
observed:
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“8. The case in hand is a case of two different
transactions/occurrences having taken place at two
different places and on different occasions and even
under different circumstances; the first incident is of.
16/17.10.2006, when a motor motorcycle bearing
registration No. HP-21A-1406 of PW-8 Ravinder Kumar
(complainant) was stolen by the accused from Chakki
road, Baddi, which he had parked on 16.10.2006 there
outside his room, whereas, the second incident pertains
to the murder of one Tara Devi of village Talaw, Tehsil
Sarkaghat, District Mandi during the night intervening
8/9.12.2008 in order to commit theft of jewellery and
other valuable articles from the house of the deceased.
Therefore, the first incident pertains to theft, whereas the
second is that of murder and robbery/dacoity. The
present, therefore, is a case of two different transactions,
however, not having identical or similar characteristics
and rather quite distinct and different. While the first
transaction pertains to the theft of a motorcycle, the
second qua the murder of one Tara Devi, committed
intentionally to take away jewellery and other valuable
articles from her house. The victims/complainants in
these transactions are different persons. The place and
time are also separate and distinct. The cases registered
in respect of both transactions have also been decided by
different courts and vide different judgments. Therefore,
in the considered opinion of this Court, the present is not
a fit case warranting an order to run the sentences
concurrently.
9. Interestingly enough, at the time of the subsequent
sentence under Section 379 of the Indian Penal Code, the
learned defence counsel has only made a reference to the
previous conviction and sentence awarded against the
petitioner-convict for the commission of an offence
under Section 392 and 304-II of Indian Penal Code and
seems to have not sought an order to run the sentence so
imposed concurrently with the one imposed against the
petitioner-convict by learned Presiding Officer, Fast
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Track Court, Mandi previously. On the other hand, the
benefit of set-off under Section 428 of the Code of
Criminal Procedure is also declined by the learned trial
Magistrate on the ground that his confinement in jail was
.
in respect of his previous conviction while sentencing the
accused under Section 379 of the Indian Penal Code. The
intention of the Court, which has convicted and sentenced
the petitioner-convict subsequently, therefore, is that the
sentence so awarded shall run consecutively, i.e. on the
expiration of the previous sentence of five years rigorous
imprisonment awarded against him by the learned
Presiding Officer, Fast Track Court, Mandi. Even the
sentence so passed against him has been affirmed by the
learned appellate Court vide judgment Annexure P-2. As a
matter of fact, this point was not urged before the
appellate Court. Had it been urged before it, the appellate
Court, being competent, could have considered the same
and passed the appropriate order. Therefore, the present
being case of two different transactions relating to the
commission of offences is not the same and similar and
rather the facts constituting two offences are different,
imposition of consecutive sentences would serve the ends
of justice. The sentences to run concurrently should only
be ordered in the case of a single transaction, irrespective
of relating to more than one offence and more than one
enactment, but would be misplaced sympathy in a case of
this nature.
10. Learned counsel appearing on behalf of the petitioner
has placed reliance on the judgment of Apex Court in State
of Punjab v. Madan Lal, (2009) 5 SCC 238 in order to
persuade this Court to take a view that the present is a
case warranting the sentences awarded in two cases to
run concurrently, however, unsuccessfully for the reason
that the law laid down in this judgment is not attracted in
the given facts and circumstances of this case and, as
such, is distinguishable on facts, because that was a case
where the complainant was same and all the three
transactions relate to the same family of the respondent
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pertaining to the issuance of different cheques by the
respondent to the complainant parties, leading in
registration of different complaints under Section 138 of
Negotiable Instruments Act. The facts of this case,
.
however, are different and distinct from the ones which
were in the case before the Hon’ble Apex Court.
11. Similarly, the judgment of the Apex Court in Ramesh
Chilwal alias Bambayya v. State of Uttrakhand, (2012) 11
SCC 629 is also not applicable in this case for the reason
that though being a case of single transaction, resulted in
registration of two separate cases; one under Section 302
of Indian Penal Code read with Sections 2/3[3(1)],
Gangsters Act and the other under Section 27 of the Arms
Act. Since in the case registered under Section 302 IPC,
the sentence of life imprisonment was awarded against
the convict, therefore, the Apex Court keeping in view the
provisions contained under Section 31 of the Code of
Criminal Procedure while maintaining the order to run
the sentences concurrently in both cases has observed
that in view of the sentence of life imprisonment awarded
by the trial Court under Section 302 of Indian Penal Code,
therefore, all sentences imposed under IPC, the Gangsters
Act and the Arms Act are to run concurrently. The
present, however, is not a case of awarding of sentence of
life imprisonment, warranting the sentence passed
against the petitioner to run concurrently.”
10. The Hon’ble Supreme Court held in Neera Yadav v.
CBI, (2017) 8 SCC 757: (2017) 3 SCC (Cri) 515: 2017 SCC OnLine SC
858, that when a person has been convicted of the commission
of the different offences committed at different times, the
sentence cannot be ordered to run concurrently. It was observed:
“70. The sentencing court has the discretion to direct
concurrency. The investiture of such discretion::: Downloaded on – 14/07/2025 21:21:52 :::CIS
9( 2025:HHC:22690 )presupposes that it will be exercised on sound principles
and not on whims. In the Criminal Procedure Code, there
are no guidelines or specific provisions to suggest under
what circumstances the various sentences of.
imprisonment shall be directed to run concurrently or
consecutively. There is no straitjacket formula for the
court to follow in the matter of issue or refusal of a
direction within the contemplation of Section 427(1)CrPC. Whether or not a direction ought to be issued in a
given case would depend upon the nature of the offence
or offences committed. In para 69 in K. Prabhakaran v. P.
Jayarajan [K. Prabhakaran v. P. Jayarajan, (2005) 1 SCC 754:
2005 SCC (Cri) 451, contains a discussion on the topic. To
quote: (SCC p. 785)“69. In the case of the respondent, the Magistrate
r ordered that the sentence on various counts shallrun consecutively. That does not mean that the
respondent had been convicted of any offence, for
which the sentence of imprisonment is two years or
more. The direction for the sentence to runconcurrently or consecutively is a direction as to
the mode in which the sentence is to be executed.
That does not affect the nature of the sentence. It is
also important to note that in the Code of Criminal
Procedure, there are no guidelines or specific
provisions to suggest under what circumstances the
various sentences of imprisonment shall be directed to
run concurrently or consecutively. There are no judicial
decisions, to my knowledge, by superior courts laying
down the guidelines as to what should be the criteria
for directing the convict to undergo imprisonment on
various counts concurrently or consecutively. In
certain cases, if the person convicted is a habitual
offender and he has been found guilty of offences
on various counts, and it is suspected that he would
be a menace if he is let loose on society, then the
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court would direct that such a person shall undergo
imprisonment consecutively. …”
(emphasis supplied)
.
71. It is well settled that where there are different
transactions, different crime numbers, and cases have
been decided by different judgments, concurrent
sentences cannot be awarded under Section 427 CrPC.
In Mohd. Akhtar Hussain v. Collector of Customs [Mohd.
Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183:
1988 SCC (Cri) 921], it was held as under: (SCC p. 187,
paras 10 & 12)“10. 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 iswrong 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.
***
12. The submission, in our opinion, appears to be
misconceived. The material produced by the State
unmistakably indicates that the two offences for
which the appellant was prosecuted are quite
distinct and different. The case under the Customs
Act may, to some extent, overlap the case under the
Gold (Control) Act, but it is evidently on different
transactions. The complaint under the Gold
(Control) Act relates to the possession of 7000 tolas
of primary gold prohibited under Section 8 of the
said Act. The complaint under the Customs Act is
with regard to the smuggling of gold worth Rs 12.5
crores and the export of silver worth Rs 11.5 crores.
On these facts, the courts are not unjustified in
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directing that the sentences should be consecutive
and not concurrent.”
72. The above general rule that there cannot be
.
concurrency of sentences if conviction relates to two
different transactions can be changed by an order of the
court. There is no straitjacket formula for the court to
follow in the matter of issue or refusal of a direction
within the contemplation of Section 427(1) CrPC.
Depending on the special and peculiar facts and
circumstances of the case, it is for the court to make the
sentence of imprisonment in the subsequent trial run
concurrently with the sentence in the previous one.
In Benson v. State of Kerala [Benson v. State of Kerala,
(2016) 10 SCC 307: (2017) 1 SCC (Cri) 108], this Court
directed the substantive sentences imposed on the
appellant to run concurrently. In V.K. Bansal v. State of
Haryana [V.K. Bansal v. State of Haryana, (2013) 7 SCC 211:
(2013) 3 SCC (Civ) 498: (2013) 3 SCC (Cri) 282], some
sentences were to run concurrently and some
consecutively. In paras 14 and 16 in V.K. Bansal case [V.K.Bansal v. State of Haryana, (2013) 7 SCC 211: (2013) 3 SCC
(Civ) 498 : (2013) 3 SCC (Cri) 282], it was held as under :
(SCC p. 217)
“14. We may at this stage refer to the decision of
this Court in Mohd. Akhtar Hussain v. Collector ofCustoms [Mohd. Akhtar Hussain v. Collector of
Customs, (1988) 4 SCC 183: 1988 SCC (Cri) 921] in
which this Court recognised the basic rule ofconvictions arising out of a single transaction
justifying concurrent running of the sentences. The
following passage is in this regard apposite: (SCC p.
187, para 10)
’10. 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
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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.’
16. In conclusion, we may say that the legal
position favours the exercise of discretion to the
benefit of the prisoner in cases where the
prosecution is based on a single transaction no
matter how 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
r creditor.”
73. This instant case is one covered under Section 427
CrPC. As noted earlier appellant Neera Yadav has been
convicted in two different cases, one of abusing the
official position in getting the plots allotted to herself and
her daughters and other irregularities in making changes
in the site plan and another one of abusing her position as
CEO, Noida conspired with Rajiv Kumar in allotting plot
to him. Having regard to the facts and circumstances of
the case and considering the nature of the allegations, in
our view, it is not justifiable to direct concurrency of the
sentence. Any unprincipled exercise of judicial discretion
and casual direction made regarding concurrency would
go against the express provisions of the Prevention of
Corruption Act, 1988 and the Criminal Procedure Code.”
11. In a cheque dishonour case, the Hon’ble Supreme
Court held in Rajpal v. Om Prakash, (2019) 17 SCC 809: (2020) 3
SCC (Cri) 429: (2020) 3 SCC (Civ) 599: 2018 SCC OnLine SC 3264,
that where different criminal cases were filed regarding the
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dishonour of cheques, the sentence cannot be ordered to run
concurrently. It was observed:
.
“2. For the dishonour of two cheques dated 10-4-2010
and 5-9-2010, for Rs 2,50,000 and Rs 1,25,000
respectively, two criminal cases being Case No. 601 of
2010 and Criminal Case No. 132-A of 2010, were initiatedagainst the appellant. In Criminal Case No. 601 of 2010
(pertaining to the cheque of Rs 2,50,000), the appellant
was sentenced to undergo imprisonment of one year and
six months, by the judgment dated 8-9-2015, affirmed bythe appellate court. In Criminal Appeal No. 132-A of 2010
relating to the subsequent cheque dated 5-9-2010 of Rs
1,25,000, the appellant has been sentenced to undergo
imprisonment of one year, which was reduced to ninemonths by the High Court [Rajpal v. Om Parkash, 2017 SCC
OnLine P&H 5364].
3. Placing reliance upon the judgment of this Court
in Shyam Pal v. Dayawati Besoya [Shyam Pal v. DayawatiBesoya, (2016) 10 SCC 761: (2017) 1 SCC (Civ) 202: (2017) 1
SCC (Cri) 264], the learned counsel appearing for the
appellant submitted that the sentences imposed on theappellant are to run concurrently. In Shyam Pal
case [Shyam Pal v. Dayawati Besoya, (2016) 10 SCC 761:
(2017) 1 SCC (Civ) 202: (2017) 1 SCC (Cri) 264], this Court
has held that the concession of concurrent running of
sentence can be extended only to the cases arising out of asingle transaction. Para 13 of the Shyam Pal case [Shyam
Pal v. Dayawati Besoya, (2016) 10 SCC 761: (2017) 1 SCC (Civ)
202: (2017) 1 SCC (Cri) 264] read as under: (SCC p. 765)“13. Though this provision has fallen for scrutiny of
this Court umpteen times, we can profitably refer to
one of the recent pronouncements in V.K.
Bansal v. State of Haryana [V.K. Bansal v. State of
Haryana, (2013) 7 SCC 211 : (2013) 3 SCC (Civ) 498 :
(2013) 3 SCC (Cri) 282] where it was held that::: Downloaded on – 14/07/2025 21:21:52 :::CIS
14( 2025:HHC:22690 )though it is manifest from Section 427(1), that the
court has the power and discretion to issue a
direction that a subsequent sentence shall run
concurrently with the previous sentences, the very.
nature of the power so conferred, predicates that
the discretion, would have to be exercised along
judicial lines or not in a mechanical or pedantic
manner. It was underlined that there is no cut-
and-dried formula for the court to follow, in the
exercise of such power and that the justifiability or
otherwise of the same would depend on the nature
of the offence or offences committed and the
attendant facts and circumstances. It was, however,
postulated that the legal position favours the
exercise of the discretion to the benefit of the
prisoners in cases where the prosecution is based
on a single transaction, no matter even if different
complaints in relation thereto might have been
filed. The caveat as well was that such a concession
cannot be extended to transactions which are
distinctly different, separate and independent of
each other and amongst others where the parties
are not the same.”
4. As pointed out earlier in the present case, the
appellant’s conviction arose out of two different cheques
dated 10-4-2010 and 5-9-2010, and it cannot be said that
the conviction arose out of a single transaction
warranting an exercise of discretion to direct the
sentences to run concurrently.”
12. It was held in Mohd. Zahid v. State, (2022) 12 SCC 426:
2021 SCC OnLine SC 1183, that ordinarily, the subsequent
sentence would commence at the expiration of the first term
unless the Court directs the subsequent sentence to run
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15( 2025:HHC:22690 )concurrently. The general rule is that where there are different
transactions, different crime numbers, and cases have been
.
decided by different judgments, concurrent sentences cannot be
awarded under Section 427. It was observed:
“17. Thus, from the aforesaid decisions of this Court, the
principles of law that emerge are as under:
17.1. If a person already undergoing a sentence of
imprisonment is sentenced on a subsequentconviction to imprisonment, such subsequent term
of imprisonment would normally commence at the
expiration of the imprisonment to which he was
previously sentenced.
17.2. Ordinarily, the subsequent sentence would
commence at the expiration of the first term of
imprisonment unless the court directs the
subsequent sentence to run concurrently with theprevious sentence.
17.3. The general rule is that where there are
different transactions, different crime numbers andcases that have been decided by different
judgments, concurrent sentences cannot beawarded under Section 427CrPC.
17.4. Under Section 427(1) CrPC, the court has the
power and discretion to issue a direction that all thesubsequent sentences run concurrently with the
previous sentence; however, discretion has to be
exercised judiciously depending upon the nature of
the offence or the offences committed and the facts
in the situation. However, there must be a specific
direction or order by the court that the subsequent
sentence run concurrently with the previous
sentence.”
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13. The Hon’ble Supreme Court held in K. Padamaja Rani
versus State of Telangana, SLP (Criminal) No. 6742 of 2023 decided
.
on 28.07.2023 that the Court can order the concurrent running of
the sentence if the offences have arisen out of a single
transaction. When there were several transactions over some
time, such direction cannot be given.
14. Moreover, in the present case, a substantive sentence
of imprisonment was not awarded, and the imprisonment was
awarded in default of payment of a fine. Section 428 of Cr.PC
provides that the benefit of set-off cannot be provided for the
imprisonment in default of payment of a fine. It was laid down
by the Rajasthan High Court in Bagdaram v. State of Rajasthan,
1987 SCC OnLine Raj 78: (1988) 1 RLW 32: 1989 Cri LJ 414: (1987) 2
WLN 817 that it is impermissible for the Court to set off the
substantive sentence of imprisonment with the sentence
awarded in default of the payment of fine. It was observed at
page 33:
“4. The learned counsel for the appellant Bagdaram
referred to the decision of this Court in Budha
Ram v. State of Rajasthan (1). That decision was in
connection with the suspension of sentence under section
389 of the Code of Criminal Procedure. The language of
the proviso to section 421(1) and 428 Cr. P.C. is very clear.
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Section 428 of the Code excludes the imprisonment in
default of payment of fine from being subjected to a set-
off of the period of detention undergone by a convict
during the investigation, inquiry or trial in the case.
.
Proviso to section 421(1) Cr. P.C. forbids the issue of a
warrant for the levy of the amount of fine by attachment
or for realising the amount as arrears only for the
offenders who have already undergone the whole of theimprisonment imposed in default of payment of fine.
Since the appellant has admittedly not deposited the
amount of fine of Rs. 500/-, he is liable to undergo
rigorous imprisonment for three months imposed uponhim in default of the payment of fine and this period of
imprisonment awarded to him in default of payment of
fine cannot be subjected to a set off by the period the
appellant had been under detention during theinvestigation, inquiry or trial of the case.”
15. Therefore, it is impermissible to direct that the
sentences in default of payment of compensation shall run
concurrently.
16. In view of the above, the present petition fails and
the same is dismissed.
17. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
14th July, 2025
(mamta)
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