Rajasthan High Court - Jodhpur
Mamu Ram vs State on 11 September, 2017
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2074 / 2016
Mamu Ram S/o Jogender Singh Saini, Police Station Police Station
Munak Distt. Sangrur, Punjab.
----Petitioner
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. Pankaj Gupta
For Respondent(s) : Mr. M.S. Panwar, PP
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
11/09/2017
1. The petitioner has preferred this criminal misc. petition
under Section 482 Cr.P.C. for giving the benefits of Section 427
Cr.P.C. to the petitioner for concurrent running the second
sentence awarded to the petitioner for the offence under Section
392 IPC and 3/25 of Arms Act by this Hon'ble Court in S.B.
Criminal Appeal No.181/2011 by judgment dated 09.03.2015 with
the judgment and sentence for offence under Section 392, 397,
342 of IPC by judgment and sentence dated 05.04.2010 by court
of ADJ, Hissar.
2. The sentences awarded to the petitioner read as under:
"In Sessions Case No.06/2009 judgment dated 18.02.2011
confirm in Criminal Appeal No.181/2011 by this Hon'ble
High Court.
Under Section 392 IPC - 10 years rigorous
imprisonment and fine of Rs.10,000/- in default of
fine further undergo 1 month simple imprisonment.
Under Section 3/25 Arms Act - 3 years imprisonment
(2 of 23)
[CRLMP-2074/2016]
and fine of Rs.1000/- in default of find further
undergo 1 month.
Where as by ADJ Hissar in Session Case No.8/2009 decided on
05.04.2010 awarded sentence as under:
Under Section 392 read with Section 397 IPC - 10
years rigorous imprisonment and fine of Rs.10,000/-
in default of fine further undergo 1 month simple
imprisonment.
Under Section 342 IPC read with Section 42 IPC -
Rigorous imprisonment for six months."
3. Currently, the jail custody certificate of the petitioner
reads as under:
"1. Certified that, as per the jail record, Convict
No.1637/C Mamu Ram @ Mamu son of Joginder Singh,
aged 30 years R/o Bhulan P.S. Khanori Distt. Sangrur
(Punjab) first time convicted and sentenced on dated
07.04.2010 by the learned Court of Sh. Sandeep Garg, the
then Addl. Sessions Judge, Hisar to undergo rigorous
imprisonment for ten (10) years and to pay a fine of
Rs.10,000/- in case FIR No.404 dated 21.11.2007 U/s
392/397/342/34 IPC P.S. Barwala Second time the said
Convict was convicted and sentenced by the Ld. Court of
Addl. Distt. & Sessions Judge, Sangaria in case FIR
No.471/2008 under Section 392 IPC & 3/25 Arms Act P.S.
Sangaria on 18.02.2011 to undergo rigorous imprisonment
for Ten (10) years and to pay a fine of Rs.11,000/- (fine
not paid) As per provision of Section 427(i) of the Cr.P.C., it
has not been mentioned in the conviction warrant in case
FIR No.471/2008 U/s 392 IPC 3/25 Arms Act P.S. Sangaria
(in which he was convicted second time) that this
subsequent sentence shall run concurrently with the
previous sentence awarded on 07.04.2010 in case FIR
No.404 dated 21.11.2007 U/s 392/397/342/34 IPC P.S.
Barwala. At present, the said convict is undergoing rigorous
imprisonment for Ten years to pay a fine of Rs.10,000/- in
case FIR No.404 dated 21.11.2007 U/s 392/397/342/34
IPC P.S. Barwala in which he was convicted first time.
2. That the period undergone by the convict as on
18.05.2016 in case FIR No.471/2008 U/s 392 IPC 3/25
Arms Act P.S. Sangaria is as under:-
Sr.No. Particular Period Years Months Days
(I) Under trial period 27.11.2008 to 18.02.2011 02 02 22
(ii) Convicted period Nil (the awarded sentence - - -
will start after the
completion of sentence in
(3 of 23)
[CRLMP-2074/2016]
case FIR
No.404/21.11.2007)
(iii) Bail period if any -------- - - -
Total Sentence = 02 02 22
(iv) Parole availed (-) Nil - - ---
(v) Detail of Nil 00 00 00
overstay/absent from
parole
(vi) Actual sentence 02 02 22
3. Detail of pending cases:- : Nil
4. Detail decided cases : Nil
5. Detail of conviction in other cases: (I) Convicted and
sentenced on 18.11.2010 by the Ld Court of Sh. S.C.
Goyal, Addl. Sessions Judge, Fatehabad to undergo
rigorous imprisonment for two (02) years and pay a fine of
Rs.1000/- (fine paid) in case FIR No.174 dated 28.07.2008
U/s 25/54/59 of Arms Act P.S. Bhuna in which he was
released on 18.11.2010 expiry of sentence after setting off
undertrial period.
(ii) Convicted and sentenced to pay a find of Rs.1,000/-
(fine paid) by the Ld. Court of Judicial Magistrate 1 st Class,
Chandigarh in case FIR No.431/2005 U/s 325/34 IPC P.s.
Manimajra Chandigarh.
6. Detail of acquitted cases : Nil
Currently, the petitioner is undergoing the
aforementioned sentence awarded by the concerned Additional
Sessions Judge Hissar.
4. Learned counsel for the petitioner has relied upon the
judgment of Hon'ble Apex Court in the matter of Ammavasai
and another Vs. Inspector of Police, Valliyanur and
others. reported in AIR 2000 Supreme court 3544. The
judgment reads as under:
"1. Leave granted.
2. Appellants in this case are two. 1st appellant-
Ammavasai was convicted in 4 different cases the
occurrence in all of which took place between 27-3-
1990 and 7-5-1990. The offence found against him in
(4 of 23)
[CRLMP-2074/2016]
all the cases was under Section 395 of the Indian
Penal Code and in each case he was sentenced to
undergo rigorous imprisonment for 7 years. If he is
not given the benefit in exercise of the discretion
conferred under Section 427 of the Criminal Procedure
Code, he may have to undergo a very long period of
28 years in jail.
3. The 2nd appellant-Deivaraj was convicted in 5
different cases the occurrence in all of which took
place between 21-10-1989 and 7-5-1990. He was also
found guilty under Section 395 of the Indian Penal
Code and was sentenced to undergo rigorous
imprisonment for a period of 7 years in each case. If
the benefit conferred under Section 427 is not
extended to him, he may have to undergo
imprisonment for a total period of 35 years in jail.
4. On the other hand, we allow the appellants to have
the benefit of all the sentences to run concurrently, he
would be out by now after serving only imprisonment
for a period of 7 years awarded in one case. Both
courses are unacceptable to us and, there fore, we
thought of a via-media which would be consistent with
the administration of criminal justice. After bestowing
our anxious consideration we thought that if the
appellants would undergo a total period of 14 years of
imprisonment in respect of all the convictions passed
against them that will be sufficient to meet the ends of
justice.
5. We, therefore, direct that the sentence imposed on
the 1st appellant pursuant to the conviction passed by
the Assistant Sessions Judge, Pondicherry in S. C. 66
of 1991 will run un-telescoped by any other sentence
imposed upon him subsequently. In other words, the
sentence imposed in subsequent cases would start
running only on the termination of the sentence
imposed upon him in the afore-mentioned case (S. C.
66 of 1991 on the file of Assistant Sessions Judge,
Pondicherry). We also order that the sentence imposed
upon him in the following 3 cases will run
concurrently :
1. S.C. 135/1993 - in the Court of Sessions Judge,
Tuticorin.
2. S.C. 69/1994 - in the Court of Sessions Judge,
Nagarcoil.
3. S.C. 197/1995 - in the Court of Principal Sessions
Judge, Nagapattinam.
6. Regarding the 2nd appellant also, we adopt the
same measure and order that the sentences imposed
upon him by the Assist ant Sessions Judge,
Pondicherry in S. C. 66 of 1991 will run unaffected by
(5 of 23)
[CRLMP-2074/2016]
another sentence imposed upon him subsequently.
Only on the termination of the aforesaid sentence the
jail authorities would start reckoning the sentence
imposed on him in respect of the remaining 4 cases,
which are detailed below :
1. S. C. 32/1994 - in the Court of Sessions Judge,
Dindigul.
2. S.C. 135/1993 - in the Court of Sessions Judge,
Tuticorin.
3.S. C. 69/1994 - in the Court of Assistant Sessions
Judge, Nagarcoil.
4. S. C. 197/1995 - in the Court of Assistant Sessions
Judge, Nagapattinam.
7. We make it clear that we permit the sentences
passed on the 2nd appellant in respect of above-
mentioned 4 remaining cases to run concurrently.
8. Appeal is disposed of in the above terms."
5. Learned counsel for the petitioner has also relied
upon the judgment of Sukhdev Singh @ Sukha Vs. State of
Rajasthan & Ors. reported in 2011(2) Cr.L.R. (Raj.) 1093.
The relevant portion of the judgment reads as follows:
"5. The purpose of imprisonment is not only to
incarcerate the accused person within four walls of
the jail; the purpose is to reform the convict.
Further, a sentence of imprisonment has to
commensurate within the offence. In the present
case, the petitioner has been convicted for the
offence under Sections 307, 397, 392, 342, 120B
and Section 3/25 Arms Act in three different cases.
However, in case the sentences were not to run
concurrently, the petitioner would have to serve a
total of twenty eight years and six months. If life
imprisonment is taken as a term of 14 years,
apparently the petitioner would be sentenced to a
term longer than life imprisonment. The offences
under Sections 07, 397, 392, 342, 120 and Section
3/25 Arms Act are not so grave that they would
(6 of 23)
[CRLMP-2074/2016]
warrant a sentence of more than life imprisonment.
Therefore, although Section 427 Cr.P.C. directs that
the sentences should run consecutively, but Section
427 also bestows a discretionary power on the
Court to direct that the sentences should run
concurrently, rather than consecutively.
6. The aim of imprisoning a person is not merely
to dump him in a jail. The aim is equally to reform
him during the period of incarceration so that he
may be brought back into the society as a peace-
loving and law-abiding citizen. Seven years is long
enough time to reform a person. Therefore, further
incarceration of the petitioner beyond seven years
would not serve any fruitful purpose. Moreover, the
courts cannot be ignorant of the fact that the jails
are overcrowded. Therefore, taking a holistic view,
this Court directs that the sentences awarded to the
petitioner by ACJM No.3, Nohar in Case
No.381/2005 vide judgment dated 1.9.2006,
Special Judge (Dacoity Affected Area), Dholpur vide
judgment dated 12.5.2009 and by Additional
Sessions Judge, Mogha in Sessions Case
no.13/2008 respectively vide judgment dated
2.10.2009, shall run concurrently, rather than
consecutively."
6. Learned counsel for the petitioner has stated, as per
the precedent law, that this Court can exercise jurisdiction for
concurrent running of sentence between one court in Hissar,
Haryana and another in Sangaria, Hanumangarh, Rajasthan.
Moreover, it is pointed out that the sentence being already
undergone is in pursuant to the judgment and sentence awarded
by the learned court below at Hissar on 05.04.2010 and,
(7 of 23)
[CRLMP-2074/2016]
therefore, the sentence which has to be concurrently running is
now of the Court under the jurisdiction of Rajasthan High Court.
7. Learned Public Prosecutor has further opposed the
same and has shown a judgment of Hon'ble Apex Court in the
matter of Benson Vs. State of Kerala decided on 03.10.2016
in Criminal Appeal No.958/2016 arising out of SLP (Criminal)
No.3757/2016. The relevant portion of the judgment reads as
under:
"The maximum sentence in respect of the present crimes
is two years' rigorous imprisonment. As per the record,
these crimes were committed on the same day. Having
considered the matters, we deem it appropriate to direct
that the sentences imposed in each of the cases, i.e. (I)
CC No.158 of 2004, (ii) CC No.1039 of 2003, (iii) CC
No.390 of 2004 and (iv) CC No.1168 of 2006 namely
those at Sl. Nos. 9 to 12 respectively as indicated in the
sentence chart in the communication dated 27.05.2016
shall run concurrently with the sentence imposed in Crime
No.8 which is currently operative. We grant his benefit in
respect of substantive sentences to the appellant but
maintain the sentences of fine and the default sentences.
If the fine as imposed is not deposited, the default
sentence or sentences will run consecutively and not
concurrently."
8. This Court has seen that Section 427 Cr.P.C. clearly
mandates that the subsequent sentences shall run concurrently.
9. Learned counsel for the petitioner has also shown the
judgment of Division Bench this Court in the matter of Arjun
Ram vs. State of Rajasthan & Ors. reported in 2016 0
Supreme(Raj) 6. The judgment reads as under:
(8 of 23)
[CRLMP-2074/2016]
"1. This reference is before us to adjudicate the following
question:-
"WHETHER, the High Court exercising powers
under Section 482 Cr.P.C., invoke Section 427
Cr.P.C. and order that sentences awarded in
two different cases shall run concurrently."
2. While making reference of the question to Larger Bench,
the learned Single Bench observed as under:-
"The Hon'ble Supreme Court in the case of
M.R. Kudva Vs. State of Andhra Pradesh 2007
R.Cr.D. 236 (SC)] held that the High Court
cannot exercise its inherent jurisdiction under
Section 482 Cr.P.C. To order that sentences
awarded in two different cases shall run
concurrently under Section 427 Cr.P.C. It was
also held that power under Section 427 Cr.P.C.
can only be exercised by the Court, while
exercising jurisdiction, as Appellate Court or
revisional Court. Relying upon judgment of
M.R. Kudva [supra] a Full Bench of the High
Court of Punjab & Haryana in the case of Jang
Singh Vs. State of Punjab, decided on
18.10.2007, reported as 2008 (1) RCR
(Criminal) 323, held that the power to make
sentences concurrent under Section 427
Cr.P.C. cannot be exercised by the Court under
Section 482 Cr.P.C. A Single Bench of this
Court [Hon'ble Mr. Justice Atul Kumar Jain] in
S.B. Criminal Miscellaneous Petition No.
3014/2013, decided on 03.09.2013, relying
upon a Division Bench judgment of this Court
in Pyari Devi Vs. State of Rajasthan, 2003
Cr.L.J. 4599 (Raj.) and in M.R. Kudva [supra]
also held as under:-
"It has been admitted by the learned
Advocate for the accused-petitioner in this
Court that in all the four cases appeals of
accused-petitioner Rocky have either been
dismissed or he has not appealed against
the judgment of the trial Court. In such a
case benefit of concurrent sentences under
the provisions of Section 427 Cr.P.C.
cannot be ordered by this Court at this
stage even with the help of Section 482,
Cr.P.C. looking to the specific mandate of
law propounded in the cases of M.R. Kudva
[By Supreme Court] and Pyari Devi
[Division Bench judgment of Rajasthan
High Court (supra)]."
(9 of 23)
[CRLMP-2074/2016]
3. On citing a view different taken in eight other cases by
different Single Benches of this Court, learned Single Bench
considered it appropriate to have opinion of Larger Bench.
4. While adjudicating the issue, at the first, we deem it
appropriate to look at the view taken by a Division Bench
of this Court in the case of Pyari Devi (supra) on basis of
which SB Cr. Misc. Petition No. 3014/2013 was decided on
3.9.2013. In the case aforesaid the Division Bench was
examining an issue with regard to modification in a
judgment that acquired finality upto the Apex Court,
wherein a trial Judge ordered that the sentence shall run
consecutively which implied incarceration of the convict for
a period of 27 years. By a parole petition a prayer was
made to convert the consecutive sentence in concurrent
one. While dismissing the parole petition the Division
Bench found it "unable to exercise inherent powers". No
reason is given to show that inability, but from perusal of
the given facts, it appears that the court was convinced
that the trial court passed the order by adequate
application of mind and no error was committed while
exercising discretion as per Section 427 Code of Criminal
Procedure. In any case the Division Bench has shown its
inability in exercising its inherent powers but has not
clipped authority to exercise such power in each and every
case of such nature.
5. Shri Amit Sharma, learned counsel appearing on behalf
of the petitioners submits that the reference made
deserves to be answered in the terms that the powers
under Section 482 Cr.P.C. are quite wide and a High Court
is having ample power to invoke the same to prevent the
abuse of the process of any court or otherwise to secure
the ends of justice. According to learned counsel the courts
while passing sentence may not be aware of the sentence
awarded earlier and may also be ignorant about
mentioning the mode of undergoing sentence, hence, by
exercising powers under Section 482 Cr.P.C. a court may
examine effect and impact of the sentences which are to
be served consecutively, and pass an appropriate order to
secure the ends of justice.
6. Heard learned counsels.
7. Before coming to other merits, we deem it appropriate
to understand the powers of a High Court under Section
482 Code of Criminal Procedure, which reads as under:-
"482. Saving of inherent powers of High
Court.--Nothing in this Code shall be deemed
to limit or affect the inherent powers of the
High Court to make such orders as may be
necessary to give effect to any order under this
Code, or to prevent abuse of the process of any
(10 of 23)
[CRLMP-2074/2016]
Court or otherwise to secure the ends of
justice."
8. A plain reading of this provision discloses that it is a
clause saving powers of High Court necessary to be
invoked to prevent abuse of the process of any court and
also to secure the ends of justice. The Supreme Court
examined scope and amplitude of this provision in several
cases. In Gian Singh v. State of Punjab & Anr., reported in
2012 Cr.L.J. 4934 (1), the Apex Court held as under:-
"49. Section 482 of the Code, as its very
language suggests, saves the inherent power
of the High Court which it has by virtue of it
being a superior court to prevent abuse of the
process of any court or otherwise to secure the
ends of justice. It begins with the words,
'nothing in this Code' which means that the
provision is an overriding provision. These
words leave no manner of doubt that none of
the provisions of the Code limits or restricts the
inherent power. The guideline for exercise of
such power is provided in Section 482 itself
i.e., to prevent abuse of the process of any
court or otherwise to secure the ends of
justice. As has been repeatedly stated that
Section 482 confers no new powers on High
Court; it merely safeguards existing inherent
powers possessed by High Court necessary to
prevent abuse of the process of any Court or to
secure the ends of justice. It is equally well
settled that the power is not to be resorted to if
there is specific provision in the Code for the
redress of the grievance of an aggrieved party.
It should be exercised very sparingly and it
should not be exercised as against the express
bar of law engrafted in any other provision of
the Code.
50. In different situations, the inherent power
may be exercised in different ways to achieve
its ultimate objective. Formation of opinion by
the High Court before it exercises inherent
power under Section 482 on either of the twin
objectives, (i) to prevent abuse of the process
of any court or (ii) to secure the ends of
justice, is a sine qua non.
51. In the very nature of its constitution, it is
the judicial obligation of the High Court to undo
a wrong in course of administration of justice
or to prevent continuation of unnecessary
judicial process. This is founded on the legal
maxim quando lex aliquid alicui concedit,
(11 of 23)
[CRLMP-2074/2016]
concedituretid sine qua res ipsa esse non
potest. The full import of which is whenever
anything is authorised, and especially if, as a
matter of duty, required to be done by law, it is
found impossible to do that thing unless
something else not authorised in express terms
be also done, may also be done, then that
something else will be supplied by necessary
intendment. Ex debito justitiae is inbuilt in such
exercise; the whole idea is to do real, complete
and substantial justice for which it exists. The
power possessed by the High Court under
Section 482 of the Code is of wide amplitude
but requires exercise with great caution and
circumspection.
52. It needs no emphasis that exercise of
inherent power by the High Court would
entirely depend on the facts and circumstances
of each case. It is neither permissible nor
proper for the court to provide a straitjacket
formula regulating the exercise of inherent
powers under Section 482. No precise and
inflexible guidelines can also be provided."
9. In Surya Baksh Singh v. State of U.P. 2013 AIR SCW
5976, also the Apex Court examined the provisions of
Section 482 Code of Criminal Procedure and held as
under:-
"6. Last, but not least in our appreciation of the
law, Section 482 of the Cr.P.C. stands in
solitary splendour. It preserves the inherent
power of the High Court. It enunciates that
nothing in the Cr.P.C. shall be deemed to limit
or affect the inherent powers of the High Court
to make such orders as may be necessary,
firstly, to 'give effect to any order under the
Cr.P.C.', words which are not to be found in the
Code of Civil Procedure, 1908 (hereafter
referred to as 'CPC'). Ergo, the High Court can,
while exercising inherent powers in its criminal
jurisdiction, take all necessary steps for
enforcing compliance of its orders. For salutary
reason Section 482 makes the criminal Court
much more effective and all pervasive than the
civil Court insofar as ensuring obedience of its
orders is concerned. Secondly, Section 482
clarifies that the Cr.P.C. does not circumscribe
the actions available to the High Court to
prevent abuse of its process, from the
inception of proceedings till their culmination.
Judicial process includes compelling a
(12 of 23)
[CRLMP-2074/2016]
respondent to appear before it. When the Court
encounters a recalcitrant Appellant/convict who
shows negligible interest in prosecuting his
appeal, none of the Sections in Chapter XXIX of
the Cr.P.C. dealing with appeals, precludes or
dissuades it from dismissing the appeals. It
seems to us that passing such orders would
eventually make it clear to all that intentional
and repeated failure to prosecute the appeal
would inexorably lead not merely to
incarceration but more importantly to the
confirmation of the conviction and sentence
consequent on the dismissal of the appeal.
Thirdly, none of the provisions of the Cr.P.C.
can possibly limit the power of the High Court
to otherwise secure the ends of justice. While it
is not possible to define the concept of 'justice',
suffice it to say that it encompasses not just
the rights of the convict, but also of victims of
crime as well as of the law abiding section of
society who look towards the Courts as vital
instruments for preservation of peace and the
curtailment or containment of crime by
punishing those who transgress the law. If
convicts can circumvent the consequence of
their conviction, peace, tranquility and
harmony in society will be reduced to a
chimera. Section 482 emblazons the difference
between preventing the abuse of the jural
process on the one hand and securing of the
ends of justice on the other. It appears to us
that Section 482 of the Cr.P.C. has not been
given due importance in combating the
rampant malpractice of filing appeals only for
scotching sentences imposed by criminal
Courts."
10. In State of Maharashtra & Ors. v. Arun Gulab Gawali &
Ors., reported in 2010 (9) SCC 701, the Apex Court held
that the inherent power is to be exercised ex debito
justitiae, to do real and substantial justice for
administration of which alone courts exist. Whenever any
attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent the abuse.
11. In B.S. Joshi & Ors. v. State of Haryana & Anr.,
reported in AIR 2003 SC 1386, it was held that inherent
power must be utilised with the sole purpose of preventing
the abuse of the process of court or to otherwise serve the
ends of justice. In exercise of inherent powers proper
scrutiny of facts and circumstances of the case concerned
are absolutely imperative.
(13 of 23)
[CRLMP-2074/2016]
12. In State of Karnataka v. L. Muniswamy & Ors.,
reported in AIR 1977 SC 1489, it was held that saving of
the High Court's inherent powers under Section 482 Code
of Criminal Procedure is designed to achieve a salutary
public purpose which is that a court proceeding ought not
to be permitted to degenerate into a weapon of
harassment or persecution. The ends of justice are higher
than the ends of mere law though justice has got to be
administered according to the laws made by the
legislature. Without a proper realisation of the object and
purpose of the provision which seeks to save the inherent
powers of the High Court to do justice between the State
and its subjects, it would be impossible to appreciate the
width and contours of that salient jurisdiction.
13. In Madhu Limaye v. State of Maharashtra, reported in
AIR 1978 SC 47, the Apex Court laid down certain
governing principles to exercise authority under Section
482 Code of Criminal Procedure by High Courts and those
can be summarised as under:-
1. Power is not to be resorted, if there is a
specific provision in the Code of Criminal
Procedure for redressal of grievances of the
person aggrieved;
2. It should be exercised sparingly only to
prevent abuse of process of any Court or
otherwise to secure the ends of justice; and
3. It should not be exercised against the
express bar of law.
14. With these checks, it can be said that the High Court
may invoke its inherent jurisdiction saved under Section
482 Code of Criminal Procedure to give effect to an order
under Code of Criminal Procedure to prevent abuse of
process of the court and to secure the ends of justice. The
jurisdiction available is quite wide and it demands that a
Constitutional Court of law must keep in mind that it is also
a Court of Justice and must exercise its inherent powers to
remove injustice or to secure the ends of justice and a
High Court while exercising these powers may make such
order or orders as may be necessary to prevent
miscarriage of justice. By keeping in mind these
parameters to exercise the inherent jurisdiction of High
Court saved under Section 482 Code of Criminal Procedure,
the issue under consideration deserves to be examined.
15. The issue under consideration before us is whether the
High Court can invoke its inherent powers to invoke
Section 427 Code of Criminal Procedure and order that the
sentences awarded in two different cases shall run
concurrently. The reference so made is essentially based
on the judgment given by Hon'ble Supreme Court in the
(14 of 23)
[CRLMP-2074/2016]
case of M.R. Kudva v. State of Andhra Pradesh (2007
Cr.L.J. 763). Hon'ble Supreme Court in this case was
adjudicating an order passed by the High Court on an
application preferred under Section 427 Code of Criminal
Procedure, 1973. In the case aforesaid a bank employee
was subjected to trial for two criminal cases and was
convicted for the offences punishable under Sections 120-
B/420, 468 and 471 Indian Penal Code read with Section
5(1) of the Prevention of Corruption Act, 1947. In both the
cases learned trial court opined that the accused did not
deserve any sympathy and deserves to undergo sentence
consecutively. This fact indicates that the trial court
examined the issue with regard to exercise of discretion as
per Section 427 Code of Criminal Procedure and further the
conviction recorded and sentence imposed remained intact
uptil the highest court. An application subsequently was
preferred to have an order for undergoing sentence
concurrently. In such circumstances the Apex Court while
rejecting such application held as under:-
"The High Court could not have exercised its
inherent jurisdiction in a case of this nature as
it had not exercised such jurisdiction while
passing the judgments in appeal. Section 482
of the Code was, therefore, 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 appellant in both the cases shall
run concurrently or Section 427 would be
attracted. The said provision, therefore, could
not be applied in a separate and independent
proceeding by the High Court."
16. Suffice to mention that in the case of M.R. Kudva
(supra) the Apex Court while examining peculiar facts of
that case did not measure scope of Section 482 Code of
Criminal Procedure. It was not necessary too as in that
case the trial court after examining the submission relating
to Section 427 Code of Criminal Procedure arrived at the
conclusion that the accused does not deserve any
sympathy, meaning thereby, the court considered that
aspect of the matter by due application of mind and that
order acquired finality being affirmed by Supreme Court.
No occasion, as such was there to reexamine the issue.
17. The other judgment on which learned Single Bench
while making reference relied upon is Jang Singh v. State
of Punjab. In this case accused Jang Singh was convicted
for several offences in two different trials. He preferred a
criminal miscellaneous petition under Section 482 Code of
Criminal Procedure to have direction to run the sentences
(15 of 23)
[CRLMP-2074/2016]
concurrently. A Division Bench before which the application
came up sought guidance from Larger Bench in following
terms:-
"It is clear from these judgments (supra), that
though the Court has discretion to convert
consecutive sentences into concurrent when
two different offences have been committed,
but the principles, method and in what manner
this judicial discretion is to be exercised, has
not been laid down."
18. The Full Bench after examining the entire issue settled
the principles for exercising discretion under Section 427
Code of Criminal Procedure and those are as under:-
"It may, thus, emerge that discretion to make
the sentences to run consecutively or
concurrently would be governed by different
consideration, like facts of each case, nature
and character of the offences, criminal history
sheet and record of the offender, his age, sex.
In our view, these considerations would appear
relevant for the exercise of discretion by the
courts under Section 427(1) Cr.P.C. It is not
possible to exhaustively lay down all the
factors that may be relevant to be taken into
consideration and basically it would depend
upon facts of each case to be so noted by the
Court while exercising its discretion in this
regard. It may, however, need to be noted that
normal rule under Section 427 Cr.P.C. appears
to be consecutive sentences. It is thereafter
discretion is given to the sentencing Court to
direct concurrency. It may also have to be kept
in view that if principle of concurrency is
applied in case where the offender is habitual,
it may repel the very basic and the normal
rules as laid down in Section 427 Cr.P.C. If
such principles are universally applied
unmindful to such consideration of the offender
being habitual, then it may lead to hostile
discrimination negatively because then it would
amount to giving similar treatment to a normal
as well as a habitual offender. Accordingly,
segregation of the habitual offender by making
them to undergo sentences consecutively can
also be accepted as principle."
19. The Full Bench as a matter of fact found itself bound by
the view taken by the Hon'ble Apex Court in the case of
M.R. Kudva (supra) without taking notice of the fact that in
that case Apex Court was examining peculiar facts without
(16 of 23)
[CRLMP-2074/2016]
examining the scope of the inherent powers of High Court
saved under Section 482 Code of Criminal Procedure.
20. The Full Bench while laying down the principles to
exercise discretion under Section 427 Code of Criminal
Procedure, while relying upon the observations made in
M.R. Kudva's case (supra), held that the discretion as per
Section 427 Code of Criminal Procedure is available with
the trial court, appellate court or the revisional court, but
not to the High Court while exercising powers under
Section 482 Code of Criminal Procedure.
21. A Full Bench of Allahabad High Court in Mulaim Singh
v. State, reported in 1974 Cr.L.J. 1397, examined the issue
in question in detail and arrived at the conclusion as
under:-
"12. .....
...........
whether as an original court or as an appellate court, it is the duty of the Court dealing with the subsequent trial to apply its mind to the question whether the sentence on subsequent conviction should be made concurrent with the previous sentence and if the Court for one reason or the other fails to apply its mind to that, question, it would be in the interest of justice that the High Court rectifies that mistake under its inherent power. In such a situation the Court would not be acting contrary to any provision of the Code or against any express or implied prohibition contained in it.
(Emphasis given by us.)
13. It would be an exercise in futility to lay down exhaustively the situations and circumstances in which the exercise of inherent power would be justified. However, it must be borne in mind that the general scheme of the Code is that the sentence awarded at a subsequent trial shall commence at the expiration of the imprisonment to which the accused has been previously sentenced. The discretion conferred on the Court under Section 397(1) has to be exercised on some judicial principle. If a situation arises, for invoking the inherent power of the Court under Section 561- Aof the Code, the Court has to see whether the circumstances and the object for which the inherent power is to be exercised are in existence and can be achieved. It is equally (17 of 23) [CRLMP-2074/2016] well established that the inherent power is to be exercised to do the right and to undo a wrong in the course of administration of justice and this power ought to be exercised sparingly only when the Court feels that the ends of justice require it and not as a matter of routine."
22. A Division Bench of Madras High Court in Sundaram alias Vellian v. The Secretary, State of T.N., Home Department, Chennai, reported in 2014 Cr.L.J. 2140, by keeping in mind the law laid down by Apex Court in M.R. Kudva (supra) and also by taking into consideration the Full Bench judgment of Punjab & Haryana High Court in the case of Jang Singh (supra), held as under:-
"4. It is the grievance of the petitioner [detenu] that the two life sentences should have been directed to run concurrently in terms of Section 427[2] Cr.P.C. It appears from the records that this petitioner had made a similar request by filing an application by invoking the jurisdiction of this Court u/s. 482 Cr.P.C., in Crl.M.P. No. 170/2009 in Crl.A. No. 142/1996, before this Court, which came to be dismissed on 15.03.2010. This Court had relied upon the judgment of the Hon'ble Apex Court in M.R. Kuduva v. State of Andhra Pradesh [2007 [1] SCC [Cri.] 648] : (AIR 2007 SC 568) and had dismissed the prayer on the ground that this plea should have been taken only before the trial court and cannot be taken up by way of a petition u/s. 482 Cr.P.C. It may be relevant to state here that a three Judges Bench of the Hon'ble Apex Court in State of Punjab v. Madhanlal [2009 (5) SCC 238] : (AIR 2009 SC (Supp) 2836) has refused to interfere with an order of Punjab and Haryana High Court passed under Section 482 Cr.P.C., whereby the sentences were directed to run concurrently under Section 427 Cr.P.C., in a matter relating to an accused who was convicted and sentenced for offences under Section 138 of the Negotiable Instruments Act in three different cases. The conflicting views between the judgment in Kuduva's case [which is by a two Judges Bench] and Madhanlal's case (AIR 2009 SC (Supp) 2836) [which is by a three Judges Bench] was considered by a Division Bench of this Court in K. Arasan v. State of Tamil Nadu [2012 (6) CTC 510] and this Court held that a prisoner can invoke the (18 of 23) [CRLMP-2074/2016] jurisdiction of this Court under Section 482 Cr.P.C. in a case where both the trial Court and the First Appellate Court or the Revision Court, as the case may be, had failed to give the benefits under Section 427(1) Cr.P.C. in the judgment. Had, either the trial Court, appellate Court or revisional Court, consciously applied its mind under Section 427(1) Cr.P.C. and denied the benefits to a prisoner, then the prisoner cannot invoke Section 482 Cr.P.C. to once again review that portion in the judgment, for, that would be a bar under Section 362 Cr.P.C. This Court further held that, while granting the discretionary relief, the Court should bear in mind the gravity of the charge levelled against the accused in each case. In the present case, Section 427(1) Cr.P.C. will have no application and therefore, neither Kuduva's case nor Madhanlal's case will have any bearing. In the facts of this case, Section 427(2) Cr.P.C. will apply. Section 427(2) Cr.P.C. reads as under:
"427. Sentence on offender already sentenced for another offence:- [1] .......
[2] When 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 subsequent sentence shall run concurrently with such previous sentence."
This Section, in no uncertain terms shows that a prisoner will be entitled to have two life sentences, imposed on him in different cases, to run concurrently. This provision stands to common sense and logic. There is a subtle distinction between section 427(1) and 427(2), Cr.P.C. Under section 427(1), Cr.P.C., if the life sentence is awarded to a prisoner already undergoing a lesser sentence, then the subsequent life sentence will start running only after the expiry of the lesser sentence unless directed by the Court otherwise. Under section 427(2), Cr.P.C., if the life sentence or lesser sentence is awarded to a person who is already undergoing life sentence, then the subsequent sentence, be it life or lesser, shall run concurrently with the earlier life sentence. In Gopal Vinayak Gotse v. State of Maharashtra (19 of 23) [CRLMP-2074/2016] [AIR 1961 SC 600] the Constitution Bench of the Supreme Court held that a sentence for imprisonment for life means imprisonment for the whole of the remaining period of the convicted person's natural life. The concept of consecutive running of two or more life sentences has received judicial imprimatur at the hands of the Supreme Court of India in Kamalananda and others v. State of Tamil Nadu [AIR 2005 SC 2132], where the consecutive life sentences awarded on the accused by the trial court was confirmed by this Court in appeal as well by the Apex Court. That was a case where, in the same trial the accused therein were charged for various offences like sections 376 and 302, IPC and were awarded life imprisonment, which were directed to run consecutively under section 31, Cr.P.C. In this case, the prisoner herein, was awarded life imprisonment by two different Courts in two different cases and therefore, section 31, Cr.P.C. will not apply.
5. Section 427(2), Cr.P.C. is a direction to the prison authorities to treat two life imprisonments as concurrent and there is no scope for Court's charity here, because it is a legislative guarantee. The Courts cannot take away this right nor the jail authorities deny the prisoner this right. It is manifestly clear that the prisoner need not have to invoke any jurisdiction, be it under Section 482, Cr.P.C. or under Article 226 of the Constitution of India, and cringe for mercy to have two life sentences run concurrently. Unfortunately in this case, the prisoner filed application in M.P. No. 170/2009 in Crl.A. No. 142/1996 without understanding the scope of Section 427(2), Cr.P.C., and obtained negative order from this Court on 15.03.2010. One can understand that the detenu may not be conversant with the nuances of law. Ignorantia juris non excusat [Ignorance of law is not an excuse] applies rigorously to the learned than to the lay. Even the prison authorities, who would have otherwise given the benefits of Section 427(2), Cr.P.C. automatically, will now remain hands tied and will be wondering as to when and where the prisoner will be undergoing the second life sentence after completing the first stint.
(20 of 23) [CRLMP-2074/2016]
6. We ask this question to ourselves as to how we can now cut the Gordian knot to release the prisoner from this legal mess? In our opinion, the order dated 15.03.2010 passed by this Court in M.P. No. 170/2009 in Crl.A. No. 142/1996 is per incuriam, because it has ignored the mandates of Section 427(2), Cr.P.C. and had relied upon the Apex Court judgment in Kuduva's case, which was one under Section 427(1), Cr.P.C. In A.R. Antulay v. R.S. Nayak and another, reported in [(1988) 2 SCC 602] : (AIR 1988 SC 1531) the Constitution Bench of the Supreme Court explained the concept in the following words:
"'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
7. The maxim Actus Curiae Neminem Gravabit [An act of the Court shall prejudice no man] will surely come to our rescue in this case. Section 362, Cr.P.C. will not hinder us, because we are not in any way altering the substantive portion of the trial Court judgment or the appellate Court judgment that imposed the second life sentence on the prisoner. Sitting in the HCP jurisdiction, we have as our hand tool Article 226 of the Constitution of India with which we propose to do justice to the prisoner by simply saying that he will be entitled to the benefits of Section 427(2), Cr.P.C. We are not conferring any new benefit on him and we are only re-stating the legal position in order to dispel confusion in the minds of the prison authorities on account of the order dated 15.03.2010 passed by this Court."
23. True it is, in the case of Sundaram alias Vellian (supra) the Division Bench of Madras High Court held that the order passed by Single Bench of that Court was per incuriam because that ignored the mandate of Section 427(2) Code of Criminal Procedure, but at the same time invoked inherent powers of High Court to meet the ends of justice and also to untied the Gordian knot to release the prisoner from a legal mess. The court while doing so also observed about availability of remedy under Article 226 of (21 of 23) [CRLMP-2074/2016] the Constitution of India for redressal of the grievances of aggrieved person and to secure ends of justice.
24. Reference of the judgment given by the Hon'ble Apex Court in V.K. Bansal v. State of Haryana & Ors., reported in 2013 Cr.L.J. 3986, is also desirable here, wherein the court examined the question that whether the High Court was right in declining the prayer made by the appellant for a direction in terms of Section 427 read with Section 482 Code of Criminal Procedure for the sentences awarded in connection with the cases under Section 138 of the Negotiable Instruments Act. In the case aforesaid the Punjab & Haryana High Court dismissed the miscellaneous applications moved under Section 482 Code of Criminal Procedure which were filed alongwith the revision petitions questioning correctness of the conviction recorded and sentence imposed. Hon'ble Supreme Court concluded that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction, no matter different complaints in relation thereto may have been filed. The Supreme Court in this case though did not examine the authority available to High Court under Section 482 Code of Criminal Procedure, but certainly interfered with the order rejecting the miscellaneous criminal petition preferred under the provision aforesaid.
25. As per Section 427 Code of Criminal Procedure, in normal course a person already undergoing a sentence of imprisonment, if sentenced on a subsequent conviction to imprisonment, such imprisonment commence at the expiration of the imprisonment to which he has been previously sentenced, but the court in its discretion based on settled principles may direct that the subsequent sentence shall run concurrently with previous sentence. While exercising such discretion, the trial court, appellate court or revisional court, as the case may be, keeps in mind several factors. While examining such factors, the possibility of some error cannot be ruled out. Not only the error, but absolutely non-consideration of the issue about invoking this discretion, may also be there and that may cause great injustice. In general, it can be said that every provision of law is meant to impart justice and to ensure fair and objective treatment with every subject, but while doing so, the chances of causing injustice or failure in extending complete justice cannot be denied. To meet such an eventuality the inherent powers like Section 482 Code of Criminal Procedure are meant and those are always open to be invoked to prevent abuse of process of court and secure the ends of justice. The inherent jurisdiction is having a very large amplitude but should always be exercised cautiously and only to prevent miscarriage of (22 of 23) [CRLMP-2074/2016] justice. While keeping in mind that the inherent powers must be exercised sparingly, the court should not restrain itself to invoke the same if any injury is caused to the justice.
26. We are of considered opinion that to meet the ends of justice and to rectify the gross error the powers under Section 482 Code of Criminal Procedure can be exercised, if court arrives at a conclusion that the trial court, appellate court or the revisional court, as the case may be, failed in completing the circuit of justice while invoking/not invoking the discretion vested with it as per Section 427 Code of Criminal Procedure. The court while doing so must keep in mind all necessary ingredients and precedents which are to be taken into consideration to exercise the discretion as per Section 427 Code of Criminal Procedure.
27. The reference made by learned Single Bench is answered accordingly. Let the Criminal Miscellaneous Petitions be listed before learned Single Bench for their adjudication on merits."
10. This Court finds that the previous judgment passed by the learned Additional District Judge, Hissar, Haryana was in the State of Haryana and thus, this Court could exercise its powers which is strictly passed under territorial jurisdiction. It is also observed that concurrent running of sentence is always of the subsequent judgment and in this case, the subsequent judgment is of Sangaria and in fact from the custody certificate, it is clear that the present petitioner is undergoing imprisonment in Hissar which is in pursuance of the previous sentence. Since this Court of State of Rajasthan does not have any finding regarding the previous sentence, therefore, the question of territorial jurisdiction would arise as the orders passed are strictly pertaining to concurrent running of subsequent judgment passed by the learned court below at Sangaria.
(23 of 23) [CRLMP-2074/2016]
11. Thus, this Court of the opinion that in the spirit of precedent law as cited above, it will be appropriate to allow the present misc. petition and the same is accordingly allowed and it is directed that the sentences awarded to the petitioner in Sessions Case No.06/2009 passed by learned Additional District Judge, Sangaria dated 18.02.2011 and confirmed in Criminal Appeal No.181/2011 shall run concurrently to the judgment of sentences awarded in Sessions Case No.08/2009 passed by learned Additional District Judge, Hissar, Haryana vide order dated 05.04.2010. However, in relation to the sentences which the petitioner has been directed to undergo, the default of payment of fine shall not be effected by this direction and the petitioner shall not pay the fine as directed by the trial court otherwise the said sentence would run consecutively.
(DR. PUSHPENDRA SINGH BHATI)J. zeeshan/