Premnarayan Vs. State of M.P. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]sections 128 & 168: [a.k. patnaik, c.j. & a.m. sapre & s.k. seth, jj] contributory negligence on part of motorcyclist pillion rider driver of motor cycle carrying two pillion riders in violation of section 128 held, a plain reading of section 128 of the act would show that sub-section (1) casts a duty on the driver of a two wheeled motor cycle not to carry more than one person in addition to himself on the motor cycle. similarly, rule 123 of the rules mentions the safety devices to be provided while manufacturing a motor cycle. these provisions obviously are safety measures for the drivers and pillion riders and breach of such safety measures may amount to negligence but such negligence will not amount to contributory negligence on the part of the pillion rider or composite negligence on the part of the driver of the motor cycle, unless such negligence was partly the immediate cause of the accident or damage suffered by the pillion rider. if the damage in the accident has not been caused partly on account of violation of section 128 of the act by the pillion rider of the motor cycle, the pillion rider is not guilty of contributory negligence. similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of section 128 of the act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. in other words, if breach of section 128 of the act, does not have a causal connection with the damage caused to the pillion rider, such breach would not amount to contributory negligence on the part of the pillion rider of the motor cycle or composite negligence on the part of the driver of the motor cycle. therefore, violation of section 128 of the act, per se, by a motor cyclist does not rise a presumption of contributory negligence on his part. similarly, violation of section 128 of the act per se does not amount to contributory negligence on the part of the pillion riders. a pillion rider cannot put up a plea of composite negligence by the driver of the motor cycle, if the driver only violates section 128 of the act. [national insurance co. ltd., v smt uma tiwari 2007(1) manisa 204 (m.p.) (d.b) & kanti devi sikarwar & ors v om prakash & ors. 2007 (1) mpwn 88 (d.b) overruled.] ordernarain singh 'azad', j.1. this order shall dispose of the petitioner's/convict's written request, contained in his inland letter, which is registered as m.cr.c no. 4588/2002. the petitioner/convict has made a prayer that in a case, court situated at gadarwara, has sentenced him to undergo the rigorous imprisonment for a period of 7 years for offences punishable under section 394 read with section 397 of the ipc and thereafter the court of jmfc, itarsi, has also sentenced him to undergo the rigorous imprisonment for a period of 1 year and 6 months for an offence punishable under section 224/34 of the ipc, therefore, both of these sentences may be ordered to run concurrently. the aforesaid request of the petitioner is to be treated under section 427(1) and under section 482 of the cr.pc.2. on perusal of report called from superintendent, central jail, sagar, and the certified copies of the judgments pronounced in both the aforesaid cases, it is noted that in sessions trial no. 70/98, this petitioner prem narayan malviya is convicted for offence punishable under section 394 read with section 397 of the ipc by addl. sessions judge, gadarwara on 16-4-99, who sentenced him to undergo the rigorous imprisonment for a period of 7 years, along with other co-accused. thereafter, on 21-11-2000, jmfc, itarsi, has also convicted this petition in criminal case no. 55/99, for offence punishable under section 224 of the ipc and sentenced to undergo rigorous imprisonment for a period of 1 year and 6 months. on examining both the aforesaid judgments, it is also noted that in sessions trial no. 70/98, the incident dated 7th january, 1998, was in consideration whereas, in criminal case no. 55/99, this petitioner is convicted and sentenced in respect of an occurrence dated 20-7-98.3. it is found dictated by their lordships of the supreme court in mohd. akhtar hussain v. asstt. collector of customs, (1988) 4 scc 183 that when the second offence is distinct and different from the first one, the subsequent sentence should normally run consequentively as they are not covered under section 427(1) of the cr.pc. in ammavasai and anr. v. inspector of police, valliyanure, reported in air 2000 sc page 3544, of course an accused/petitioner, who was convicted and sentenced for similar offences, in three cases, in respect of three incidents, occurring in a short span of 3 to 5 months, was allowed the benefit of section 427(1) of the cr.pc and his sentences imposed on all three cases were ordered to run concurrently,4. in jaikishan v. state of haryana, reported in 2002 cr.lj page 412, also an accused who was convicted for two offences on one date, and hence the court directed that the sentences imposed in both the cases, shall run concurrently.5. but in this case, this petitioner is convicted in respect of two totally different incidents, for different types of offences, which are proved to have been committed after a lapse of more than 6 months, therefore, in my opinion, he is not entitled for the benefit of section 427(1) of the cr.pc, and to obtain a direction that the sentences imposed upon him in sessions trial no. 70/98 and criminal case no. 55/99, be executed concurrently.6. therefore, the petitioner's/convict's prayer is devoid of any merit, which accordingly stands disallowed and rejected.

Judgment:
ORDER

Narain Singh 'Azad', J.

1. This order shall dispose of the petitioner's/convict's written request, contained in his inland letter, which is registered as M.Cr.C No. 4588/2002. The petitioner/convict has made a prayer that in a case, Court situated at Gadarwara, has sentenced him to undergo the rigorous imprisonment for a period of 7 years for offences punishable under Section 394 read with Section 397 of the IPC and thereafter the Court of JMFC, Itarsi, has also sentenced him to undergo the rigorous imprisonment for a period of 1 year and 6 months for an offence punishable under Section 224/34 of the IPC, therefore, both of these sentences may be ordered to run concurrently. The aforesaid request of the petitioner is to be treated under Section 427(1) and under Section 482 of the Cr.PC.

2. On perusal of report called from Superintendent, Central Jail, Sagar, and the certified copies of the judgments pronounced in both the aforesaid cases, it is noted that in Sessions Trial No. 70/98, this petitioner Prem Narayan Malviya is convicted for offence punishable under Section 394 read with Section 397 of the IPC by Addl. Sessions Judge, Gadarwara on 16-4-99, who sentenced him to undergo the rigorous imprisonment for a period of 7 years, along with other co-accused. Thereafter, on 21-11-2000, JMFC, Itarsi, has also convicted this petition in Criminal Case No. 55/99, for offence punishable under Section 224 of the IPC and sentenced to undergo rigorous imprisonment for a period of 1 year and 6 months. On examining both the aforesaid judgments, it is also noted that in Sessions Trial No. 70/98, the incident dated 7th January, 1998, was in consideration whereas, in Criminal Case No. 55/99, this petitioner is convicted and sentenced in respect of an occurrence dated 20-7-98.

3. It is found dictated by their Lordships of the Supreme Court in Mohd. Akhtar Hussain v. Asstt. Collector of Customs, (1988) 4 SCC 183 that when the second offence is distinct and different from the first one, the subsequent sentence should normally run consequentively as they are not covered under Section 427(1) of the Cr.PC. In Ammavasai and Anr. v. Inspector of Police, Valliyanure, reported in AIR 2000 SC Page 3544, of course an accused/petitioner, who was convicted and sentenced for similar offences, in three cases, in respect of three incidents, occurring in a short span of 3 to 5 months, was allowed the benefit of Section 427(1) of the Cr.PC and his sentences imposed on all three cases were ordered to run concurrently,

4. In Jaikishan v. State of Haryana, reported in 2002 Cr.LJ Page 412, also an accused who was convicted for two offences on one date, and hence the Court directed that the sentences imposed in both the cases, shall run concurrently.

5. But in this case, this petitioner is convicted in respect of two totally different incidents, for different types of offences, which are proved to have been committed after a lapse of more than 6 months, therefore, in my opinion, he is not entitled for the benefit of Section 427(1) of the Cr.PC, and to obtain a direction that the sentences imposed upon him in Sessions Trial No. 70/98 and Criminal Case No. 55/99, be executed concurrently.

6. Therefore, the petitioner's/convict's prayer is devoid of any merit, which accordingly stands disallowed and rejected.