Punjab-Haryana High Court
Nand Kishore vs State Of Haryana on 3 November, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRWP No.889 of 2012 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRWP No.889 of 2012
Date of decision : 03.11.2012
Nand Kishore
...Petitioner
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Rahul Vats, Advocate for the petitioner.
Mr. Ajay Gulati, DAG, Haryana.
JITENDRA CHAUHAN, J. (Oral)
The petitioner has approached this Court under Article 226 of the Constitution of India, read with Sections 427 and 482 Cr.P.C., praying that the sentenced imposed upon the petitioner in decided appeal Nos.824-SB of 1996 decided on 25.09.2006, and 982-SB of 1997 decided on 06.04.2005, by this Court, be ordered to run concurrently.
Admitted brief facts of the case are that the petitioner had been convicted and sentenced to undergo RI for 10 years and to pay a fine of `1.00 lac vide judgment of conviction and order of sentence dated 16/17.9.1996 by the Court of Additional Sessions Judge, CRWP No.889 of 2012 -2- Bhiwani. Subsequently, he had also been convicted and sentenced to undergo RI for 10 years and to pay a fine of `1.00 on 13.10.1997, by the Court of learned Additional Sessions Judge, Sirsa. The appeals filed by the petitioner in both the cases stand dismissed by this Court vide judgments Annexure P-1 and P-2.
The learned counsel for the petitioner, inter alia, contends that the petitioner had been sentenced to undergo rigorous imprisonment for a period of 10 years in case FIR No.75 dated 02.05.1991, under Section 18 of the NDPS Act; and rigorous imprisonment for a period of 10 years in case FIR No.235 dated 15.12.1995, under Section 18 of the NDPS Act. The appeals filed against the aforesaid already stand dismissed by this Court. The learned counsel thus, contends that the petitioner shall now have to undergo rigorous consecutive imprisonment for a total period of 20 years in both the cases.
On the other hand, the learned State counsel has vehemently opposed the prayer. It is argued that in view of the fact that neither the trial Court, nor this Court, observed while passing the judgments of conviction and sentence that the sentences in both the cases shall run concurrently or Section 427 Cr.P.C. would be attracted, the present petition under Section 482 Cr.P.C. is not an appropriate remedy. He cites M.R. Kudva Vs. State of A.P. - 2007(1) RCR (Crl.) CRWP No.889 of 2012 -3- 868 (SC); and Jang Singh Vs. State of Punjab - 2008(1) RCR (Crl) 323 (Full Bench of this Court).
I have heard the learned counsel for the parties. Section 427 Cr.P.C. reads as under:-
"427.Sentence on offender already sentences for another offence.-
(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing securing is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.CRWP No.889 of 2012 -4-
(2) 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 subsequent sentence shall run concurrently with such previous sentence."
Admittedly, in the instant case, there is no such specific direction by the 'Court' as required in Sub section 1, that the subsequent sentence shall run concurrently with the previous sentence.
In the judgment rendered by a Full Bench of this Court in Jang Singh's case (supra), it has been held as under:-
"18. The consensus of the judicial opinion, as may emerge from different judgments passed by various High Court 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 CRWP No.889 of 2012 -5- 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 Sections 482/427 Cr.P.C. The view taken by one set of the High Court that such an application can be entertained while exercising inherent powers under Section 482 Cr.P.C. would not more appear to be a good law in view of the decision of Hon'ble the Supreme Court in M.R. Kudva case (supra). We are, thus, bound to take this view that the discretion though available with the trial Court, appellate Court or the revisional Court while holding trial or entertaining appeal or CRWP No.889 of 2012 -6- 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 and cannot 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 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 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 CRWP No.889 of 2012 -7- 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."
In M.R. Kudva's case (supra), Hon'ble the Apex Court has observed as under:-
"10. However, in this case the provision of Section 427 of the Code was not invoked in the original case or in the appeals. A separate application was filed before the High Court after the special leave petitioners were dismissed. Such an application, in our opinion, was not maintainable. 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 case shall CRWP No.889 of 2012 -8- 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. The appeal being devoid of any merit is dismissed."
The petitioner is a habitual offender and had been convicted and sentenced in separate and independent proceedings. The provisions of Section 427 Cr.P.C. were not invoked in the original cases or in the appeals. The present petition filed before this Court under Article 226 of the Constitution of India, read with Sections 427 and 482 Cr.P.C. with a prayer that the sentences passed in two cases be ordered to run concurrently, is not maintainable.
In view of the above, this Court is of the considered opinion that as neither the trial Court nor this Court made any observation at the time of disposal of appeals as regards running of sentences concurrently, the present petition is not an appropriate remedy for the petitioner to seek the relief prayed for.
In view of the above discussion, the present petition is dismissed being devoid of any merit.
03.11.2012 (JITENDRA CHAUHAN) atulsethi JUDGE
Note : Whether to be referred to reporter ? Yes / No