Punjab-Haryana High Court
Kartara Singh vs The State Of Haryana And Others on 5 December, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM M-19015 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM M-19015 of 2012 (O&M)
Date of Decision: December 05, 2012
Kartara Singh
... Petitioner
Versus
The State of Haryana and others
... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
Present: Mr. A.S. Trikha, Advocate,
for the petitioner.
Mr. Sidharth Sarup, DAG, Haryana.
Paramjeet Singh, J.
Present petition has been filed under Section 482 of the Code of Criminal Procedure for directions to the respondents to exercise discretion and order under Section 427 of the Code of Criminal Procedure to run concurrent the consecutive sentences passed in case FIR No. 91 dated 26.04.1989 under Sections 17/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act") by the learned Additional Sessions Judge, Sirsa on 02.02.1991 for ten years with the already undergoing sentence passed in FIR No. 38 dated 18.02.1998 under Sections 15/16 of the NDPS Act by the learned Addl. Sessions Judge, Sirsa on 11.11.2002 for ten years.
CRM M-19015 of 2012 2
Brief facts of the case are that the petitioner was accused in an FIR No.91 dated 26.04.1989 at Police Station Baragudha, District Sirsa, under Sections 17/18 of the NDPS Act. The learned Sessions Judge, after completion of trial, convicted the petitioner and sentenced him to undergo imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-, in default, to further undergo rigorous imprisonment for a period of three years. Challenging the order of conviction, the petitioner had preferred an appeal viz. Criminal Appeal No. 55-SB of 1991 before this Court, which was dismissed vide order dated 07.08.2006. Another FIR No. 38 dated 18.02.1998, under Section 15 of the NDPS Act, came to be registered at Police Station Rori, District Sirsa against the petitioner. Vide order dated 11.11.2002, learned Additional Sessions Judge, after appreciating the evidence, convicted the petitioner and sentenced him to undergo imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/-, in default, to further undergo rigorous imprisonment for a period of two years. Challenging the order of conviction, the petitioner had preferred an appeal viz. Criminal Appeal No. 59-SB of 2003 before this Court, which was dismissed vide order dated 26.05.2010. Hence, the petitioner has come forward with this petition under Section 482 read with 427 Cr.P.C.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner contended that inherent power under Section 482 Cr.P.C. of Hon'ble High Court is not in any way fettered by Section 427(1) of the Cr.P.C., the two consecutive sentences CRM M-19015 of 2012 3 can be made concurrent even if the conviction had become final. In support of this averment, learned counsel has placed reliance on a judgment of Full Bench of Madhya Pradesh High Court in Sher Singh vs. State of M.P., 1989(1) R.C.R. (Criminal) 696.
The Full Bench of this Court in Jang Singh versus State of Punjab, 2008(1) RCR (Criminal) 323 has held as under:-
"The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C., is that a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Such direction to make the sentences to run concurrently, as per various decisions noted above, can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well. However, if the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Section 482/427 Cr.P.C. The view taken by one set of the High Courts that such an application can be entertained CRM M-19015 of 2012 4 while exercising inherent powers under Section 482 Cr.P.C. would no more appear to be a good law in view of the decision of the Hon'ble Supreme Court in M.R.Kudva' case (Supra). We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertaining appeal or revision but would not be so available to be exercised in isolation when application in this regard is moved either under Section 482 or 427 Cr.P.C. What principle and consideration will govern the exercise of this discretion, as already noted above, can not be exhaustively enumerated. Certain relevant factors, as can be culled out from different judgments referred to above, may give an indication where such discretion may be exercised. These factors generally would be the nature or character of the offences committed, the prior criminal record of the offender, character, his age and sex etc. ghastly nature of the crime. The offender being habitual would also be the factor, which can be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any Court dependent upon the facts and circumstances of each case on any relevant or valid consideration as may be considered so by the Court while holding the trial or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Cr.P.C., as observed by Hon'ble Supreme Court, is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion.CRM M-19015 of 2012 5
There are, thus, no set guidelines, principles available which would govern the exercise of discretion under Section 427 (1) Cr.P.C. Section leaves a judicial discretion with the courts to exercise such discretion depending on the facts and circumstances of each case. Some indication of such consideration is available from judicial pronouncements as enumerated above, which we would approve to be relevant and valid for taking into account while exercising discretion."
In M.R. Kudva versus State of A.P., reported in (2007)1 SCC (Criminal) 648, the Hon'ble Supreme Court has held that Section 482 Cr.P.C. is, not an appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the petitioner in both the cases shall run concurrently or Section 427 Cr.P.C. would be attracted.
Keeping in view the law laid down by the Hon'ble Supreme Court in M.R. Kudva's case (supra) and Full Bench of this Court in Jang Singh's case (supra), it would not be appropriate to exercise discretion under Section 427 / 482 Cr.P.C.
In view of the above, the present petition is dismissed.
December 05, 2012 [Paramjeet Singh] vkd Judge