Patna High Court
Sumitra Devi vs State Of Bihar on 25 August, 1992
Equivalent citations: 1993(2)BLJR1122
JUDGMENT N.P. Singh, J.
1. The petitioner, Sumitra Devi, wife of convict Lohra Mahto sent a petition to the Hon'ble Chief Justice stating therein that her husband Lohra Mahto was tried before 5th Additional Judicial Commissioner, Ranchi in S.T. No. 167/76 on the charge Under Sections 302 and 326 of the Indian Penal Code and was convicted and sentenced to death and R. I. for 7 years respectively. The High Court in appeal commuted the death sentence to life imprisonment and affirmed the sentence awarded Under Section 326 of the Indian Penal Code. Her husband has directly undergone the sentence of life imprisonment despite that he is not being released by the Superintendent Central Jail, Hazaribagh on the plea that there was no specific direction of the Court that two sentences shall run concurrently.
2. The petition was treated a criminal writ under Articles 226 and 227 of the Constitution of India and admitted for hearing.
3. The question that arises for consideration is whether the sentence of life imprisonment and sentence of 7 years imprisonment awarded Under Section 326 of the Indian Penal Code should be deemed to be executable consecutively or concurrently.
4. In the instant case, the husband of the petitioner was sentenced to death and imprisonment for 7 years Under Section 326 of the Indian Penal Code. Therefore, the trial Court never anticipated the point that has arisen on account of subsequent order of commutation of death sentence to a sentence of life imprisonment passed by the High Court.
5. The normal rule is that the sentences should be consecutively. They may be made to run concurrently if there is some reason. The Court, however, must expressly direct whether the sentences are to run concurrently or consecutively.
6. The principle underlying Section 31 of the Code of Criminal Procedure can be taken into consideration in dealing with this case. Section 31(1) of the Code of Criminal Procedure runs as follows:
(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, therefore, 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.
7. A Bench of Orissa High Court presided over by Chief Justice R.N. Mishra as he then was in the case of Basudeo Pradhan v. State of Orissa 1983 Cr.LJ 527 observed that:
A direction to make consecutive sentences concurrent does not touch the merit of the matter and proceeds on the acceptance of judgment of conviction as also the quantum of sentence. The inherent power vested in the Court is obviously intended for superintending the administration of criminal justice within the jurisdiction of the Court with a view to ensuring that ultimate justice is done.
His Lordship, extended the consecutive sentences passed in three different trials in first two cases 4 years and in the third case years, one each Under Section 395 of the Indian Penal Code to run concurrently.
8. In an exactly identical case, where there was omission to specify how the separate sentences are to run, a Division Bench of Rajasthan High Court in the case of Surja Ram v. The State has observed that the separate sentences shall be enforced concurrently with the life imprisonment.
9. Again, a Bench of Punjab and Haryana High Court in the case of Pritam Singh v. State of Punjab and Ors. 1981 Cr. LJ (NOC) 119, held, that:
Where an accused who was convicted for several offences was sentenced to undergo rigorous imprisonment for different terms for different offences which in all aggregated to a period of 23 years and the sentence of life imprisonment was set aside in appeal, it could not be said that as there was no order by the Additional Sessions Judge whether the sentences were to run concurrently or consecutively the accused could be detained in prison for a period of more than fourteen years.
10. It is admitted that the convict has already undergone imprisonment for more than 21 years including the remission earned by the convict. The position that has arisen on account of omission in the order of the High Court, therefore, deserves to be clarified for the ends of justice, in exercise of inherent power, in order to make the form of sentences harmoneous.
11. The criminal law treats punishment more as a reformative or corrective than as a deterrent or punitive measures. Therefore, I think, the ends of justice would be served, if the two sentences are extended to run concurrently. The sentence of 7 years imprisonment awarded Under Section 326 of the Indian Penal Code against the husband of the petitioner is, directed to run concurrently with life imprisonment.
12. The petition is, accordingly, allowed. The Superintendent, Central Jail, Hazaribagh, is directed to set at liberty the husband of the petition forthwith, if not wanted in and other case.
R.N. Prasad, J.
13. While fully and entirely agreeing with the result of the case, I feel it necessary to mention some facts, which are not in dispute, as also my reasonings for coming to the conclusion.
14. At the admission stage, learned Government Advocate received instruction, dated 13-9-1991 from the Superintendent, Central Jail. Hazaribagh, which, has been placed on the records of the case. It appears from the said instruction that he calculated the period of sentence, treating the same to be for twenty-seven years (twenty years for the imprisonment Under Section 302 of the India Penal Code and seven years Under Section 326 thereof). It also appears from the said calculation made by the Superintendent of Central Jail, Hazaribagh that the convict has already undergone imprisonment for 21 years, 4 months and 20 days on 13-9-1991, including the remission earned by the convict.
15. The question arises, for consideration in this case, whether the sentence of life imprisonment Under Section 302 of the Indian Penal Code and the sentence of imprisonment for seven years Under Section 326 thereof awarded to the convict can be ordered to run concurrently on the facts and in the circumstances of the case.
16. The general rule is that a sentence commences to run from the time it is imposed, but Section 427(1) of the Code of Criminal Procedure, hereinafter referred to as the Code, is an exception to this general rule in the case of person who is already undergoing a sentence of imprisonment. However, a discretion has been given to the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. Sub-section (2) of Section 427 of the Code is in consonance with the general rule which provides that when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsistence shall run concurrently with such previous sentence. A similar discretion has been provided by Section 31 of the Code where a person is convicted and sentenced for two or more offences at one trial. It provides that the sentences inflicted for various offences shall commence to run one after the other unless the Court directs that such punishments shall run concurrently. Obviously the stage for exercising the discretion is when the Court records the conviction and conviction and inflicts punishments.
17. The present case, an unusual circumstances, does not fall either Under Section 31 or Section 427 of Code, for the reason that Section 427(1) of the Code deals with the sentences earned by the convict in subsequent trial and there was no occasion for the trial Court to apply the said discretion Under Section 31(1) of the Code, as the convict was sentenced to death and after execution thereof there would have nothing left to be executed. This situation arose only after the sentence of death was commuted to life imprisonment by the appellate Court.
18. In the circumstances of the present case, a question arises for consideration as to whether the High Court is competent to exercise its inherent power to meet the ends of justice. The inherent power of the High Court is not controlled by any provisions of the Code. The power may be exercised to give effect to any order under the Code, or to prevent abuse of the process of any Court and to secure the ends of justice. A direction that the sentences shall run concurrently does not touch the merit of the case and proceeds on acceptance of judgment of conviction as also quantum of sentence. The power of the High Court obviously intended for superintending the administration of justice, with a view to ensure that ultimate justice is done. It is well established that the inherent power is to be exercised to do the right and to undo the wrong in the course of administration of justice. Hence, I am of the view that this Court has power in the circumstances of the case, to direct the sentence to run concurrently.
19. It is true that the discretion conferred under the provisions of law has to be exercised on some judicial principles. A Division Bench of the Rajasthan High Court in Surja Ram v. The State , faced with the similar situation ordered the sentences to run concurrently.
20. There is nothing on the record of the case that the convict is a hardened criminal. Nothing has been brought on the records of the case nor has it been submitted by learned Counsel appearing for tae respondent that the convict has any criminal antecedent. Accordingly, I am of the view that it is a fit case where the sentences awarded to the convict be ordered to run concurrently and my learned brother has very rightly ordered the sentences to run concurrently.
21. In the result, this petition is allowed with the observations and directions as above.