Patna High Court
Mahabir Beldar vs The State on 7 November, 1964
Equivalent citations: AIR1965PAT178, 1965CRILJ582, AIR 1965 PATNA 178, 1964 BLJR 898
ORDER K. Sahai, J.
1. This application has been filed under Section 561A of the Code of Criminal Procedure for an order, directing that the sentences imposed upon the petitioner in four cases be ordered under Section 397 (1) of the Code of Criminal Procedure to run concurrently.
2. In Sessions Case No. 143 of 1960, the petitioner has been sentenced under Section 395 of the Penal Code to undergo rigorous imprisonment for ten years. Criminal Appeal No. 229 of 1961 from jail against that conviction was summarily dismissed by Anant Singh J. on the 26th April, 1961.
3. In Sessions Case No. 150 of 1960, the petitioner has been sentenced under Section 395 of the Penal Code to undergo rigorous imprisonment for ten years. Criminal Appeal No. 235 of 1961 from Jail against that conviction was dismissed summarily by Anant Singh J. on the 26th April, 1961.
4. In Sessions Case No. 58 of 1061, the petitioner has been convicted under Sections 19(f) and 20 of the Arms Act, and has been sentenced, respectively, to undergo rigorous imprisonment for three years and five years, the sentences to run concurrently. Criminal Appeal No. 686 of 1981 from Jail against those convictions was dismissed summarily by Anant Singh, J. on the 30th October, 1961.
5. In Sessions Case No. 99 of 1961, the petitioner has been convicted under Sections 399 and 402 of the Penal Code, and has been sentenced, respectively, to undergo rigorous imprisonment for five years and three years, the sentences to run concurrently. Criminal Appeal No. 157 of 1962 from Jail was dismissed summarily by Anant Stngh, J. on the 3rd April 1962.
6. The petitioner has filed the present application on the 15th July, 1964.
7. Mr. Nagendra Prasad Singh, who has appeared on behalf of the petitioner, has drawn my attention to the unreported decision of a Bench of this court in Ekram Sheikh v. The State (Criminal Appeals Nos. 574 of 1960 and 546 of 1961, disposed of on the 21st November, 1962). The relevant facts in that case were almost the same as those in the present case. Appeals filed by the petitioner of that case had been summarily dismissed by the High Court, and, thereafter, he had filed an application under Section 561A of the Code for an order of the kind prayed for in the present case. The Division Bench considered the question whether this court can in exercise of its inherent powers under Section 581A, pass an order directing sentences of imprisonment passed in different cases to run concurrently. Their Lordships came to the conclusion that this court could not. The decision has been supported, in the course of the judgment, on two grounds. One ground is that an order of summary dismissal of an appeal by this court is a judgment, and that Section 369 of the Code would constitute a bar against alteration in the judgment. Their Lordships expressed the opinion that an order making sentence to run concurrently, when they should, according to law, run consecutively, would constitute such an alteration.
The second ground is that the inherent powers of this Court should not be used for the purpose of passing an order contemplated by Section 397 (1 of the Code.
7a. Mr. Nagendra Prasad Singh has urged that the Division Bench decision requires reconsideration. He has supported this argument on the basis that a summary dismissal of an appeal is not a judgment, and that Section 369 cannot bar alteration or review of that kind of an order. In support of this argument, he has referred to a decision of the Supreme Court in U. J. S. Chopra v. State of Bombay, (S) AIR 1955 SC 633. The majority decision has been delivered in that case by Bhagwati, J. Dealing with different types of cases, including an order of summary dismissal of an appeal by the High Court, he has observed:
"In all these cases there will be no judgment of the High Court replacing the judgment of the lower court and the action of the High Court would only amount to a refusal by the High Court to admit the petition of appeal or the criminal revision and issue notice to the opposite party with a view to the final determination of the questions arising in the appeal or the revision."
8. In view of this observation, it is possible to say that the first ground taken by the Division Bench of this Court is open to question. There is, however, no reason why I should take a view different from that taken by the Division Bench in so far as the other ground is concerned. As Section 397(1) itself shows, the ordinary rule is that, when a person is undergoing a sentence of imprisonment and is subsequently sentenced to another term of imprisonment, such imprisonment would commence at the expiration of the sentence of imprisonment which was imposed upon him in the previous case It Is for the court dealing with the subsequent case, if it feels called upon to do so, to pass an order that the sentence should run concurrently with the previous sentence. No such order was passed by Anant Singh, J. when he summarily dismissed any of the appeals, nor was any such order passed by Sessions Judge trying the last of the four cases. No illegal order has at all been passed. All that has happened is that the law is taking its course. The High Court does not use its power under Section 561A as a matter of routine. The inherent power is an extraordinary power which ought to be exercised very rarely and only when the court feels that the ends of justice require it. With great respect, therefore, I feel that the decision of the Division Bench, based as it is upon the second ground, also, does not require any reconsideration.
9. Besides, the facts of this case show that the petitioner is a hardened criminal who has committed dacoity and allied offence a number of times. I do not see why I should order the sentences passed upon him in different cases to run concurrently.
10. In the result, the application is dismissed.