JUDGMENT

Sanjeev Sachdeva, J. (Oral)

Crl.M.A.2235/2019 (exemption)

Exemption is allowed subject to all just exceptions.

Crl.M.A.2234/2019 (for condonation of delay)

1. Learned counsel for the petitioner submits that since the petitioner was incarcerated, the petition was filed through jail, on account of which, the delay took place. He further submits that the petitioner did not have resources to appoint a private counsel and petition has been filed through legal aid.

2. Learned APP for the State submits that in view of the averments in the application, she does not oppose condonation of delay.

3. For the reasons stated in the application, the application is allowed. The delay in filing the petition is condoned.

CRL.REV.P. 127/2019 & Crl.M.(Bail) 199/2019 (for suspension of sentence)

4. Petitioner impugns judgment dated 15.09.2018, whereby, appeal of the petitioner, impugning judgment on sentence dated 28.07.2015 and order on sentence dated 30.07.2015, has been dismissed.

5. Petitioner has been convicted of an offence under Section 382 IPC read with Section 34 IPC and sentenced to undergo 4 years rigorous imprisonment and also convicted of an offence under Section 25(1-B) (a) Arms Act and sentenced to undergo 1 year rigorous imprisonment for the same. By order on sentence dated 15.09.2018, the Trial Court directed that both the sentences to run one after the other.

6. Learned counsel for the petitioner inter alia submits that order on sentence dated 15.09.2018 is erroneous and contrary to the settled position of law and submits that as the both the offences were part of one transaction, the Trial Court erred in directing that the substantive sentences shall run one after the other. He contends that in view of Section 31 of the Criminal Procedure Code, as interpreted by the Supreme Court in Manoj Alais Pannu vs. State of Haryana, (2014) 2 SCC 153: 2014(1) JCC 737, sentences should have run concurrently and not consecutively.

7. Learned counsel for the petitioner further submits that as per the Nominal Roll dated 26.11.2018, the petitioner, as on 22.11.2018, had already undergone 3 years 5 months and 13 days of incarceration and earned remission of 9 months and 22 days. As per the Nominal Roll of the petitioner, the unexpired period of sentence, as on 22.11.2018, was 8 months and 25 days, if fine paid.

8. Learned counsel for the petitioner submits that since there was no fine imposed on the petitioner, as on date nearly 6 months of sentence is remaining out of 5 year period (i.e. 4 + 1).

9. Learned counsel for the petitioner submits that in case ratio of the judgment in Manoj Alias Panu (supra) is applied, he has instructions not to press the petition on merits.

10. Section 31(1) Cr.P.C. lays down as under:

"31. Sentences 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 therefor 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."

11. Section 31 Cr.P.C. came up for interpretation in Manoj Alias Panu (supra), wherein also the Supreme Court was considering the case where the Trial Court had directed that the sentence shall run consecutively in terms of Section 31 Cr.P.C.

12. The Supreme Court in Manoj Alias Panu (supra) held as under:

"10. It was submitted that the courts below have committed a grave error of law by convicting the appellant despite the prosecution having failed to prove the case against the appellant and having not considered the tender age of 18 years of the appellant as also that the appellant has already undergone almost six years of imprisonment. He a