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1991 DIGILAW 455 (CAL)

Md. Samin v. State

1991-09-27

HARIDAS DAS, Jyotirindra Nath Hore, Monoj Kumar Mukherjee

body1991
JUDGMENT Monoj Kumar Mukherjee, J. The petitioner, who is undergoing different sentences passed against him in three separate trials, filed a petition intituling the same as one under ss. 482 and 427 of the Code of Criminal Procedure, 1973 ('Code' for short), before a Division Bench of this Court seeking concurrent running of all the sentences. At the time of hearing of that petition, it was brought to the notice of the Bench that there were conflicting decisions of this Court on the question whether the High Court could exercise its power under s. 482 of the Code in a situation where the sentences passed in different trial, had become final and no order under s. 427 of the Code had earlier been passed therein. The Division Bench, therefore, referred the matter to the learned Chief Justice to constitute a larger Bench to answer the above question Pursuant thereto, the learned Chief Justice has constituted this Bench. To answer the question formulated above, it will be necessary to first look into s. 427 (1) of the Code. The said sub-section, so far as it is relevant for our present purposes, reads as under :- "427 (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." 2. As a general rule, a sentence runs from the time of its imposition but the above section is an exception thereto as it expressly lays down that when a person already under going a sentence of imprisonment is subsequently convicted and sentenced for another offence the latter sentence will start running after he has undergone the former one. However, a discretion has been given to the Court to direct that the subsequent sentence shall run concurrently with the previous one. Obviously therefore, a direction for concurrent running of the .sentences under s. 427(1) can be given by the Court which-and at a time when it-records the subsequent conviction and passes sentence pursuant thereto TII the case of Swopon Sollo v. The State (C.R. no. Obviously therefore, a direction for concurrent running of the .sentences under s. 427(1) can be given by the Court which-and at a time when it-records the subsequent conviction and passes sentence pursuant thereto TII the case of Swopon Sollo v. The State (C.R. no. 1539 of 1990 disposed of on 2112.90), a Division Bench of this Court held that "the Court" appearing in s. 427(1) of the Code is suggestive of the Court of the first instance which passed the sentence. In drawing the above conclusion, the Bench has referred to s. 211(7) and s. 426 of the Code. We regret our inability to share the view expressed by the Bench. In a given case, an accused who is undergoing a sentence of imprisonment, may earn an order of acquittal in the subsequent trial and aggrieved thereby the State may file an appeal against the acquittal under s 378 of the Code. If the High Court sets aside the order of acquittal and convicts and .sentences the accused, it can legitimately, under s. 427 of the Code, direct concurrent running of the sentences, as it has passed the subsequent order of conviction and sentence. Then again if in a subsequent trial, the trial Court does not entertain or allow the prayer of a, convict for a direction under s. 427(1). he may in the appeal preferred against the conviction and sentence seek a similar direction or if he does not intend to challenge the conviction or sentence he can also legitimately file a revisional application against the refusal of his prayer for invoking s. 427. We are, therefore of the opinion that direction for concurrent running of sentences under s. 427(1) of the Code can be issued not only by the trial Court but by the appellate and revisional Courts also. 3. The next question which now falls for our consideration is whether it is competent for the High Court, in exercise of its power under s. 482 of the Code to issue such direction in cases where the trial or the appellate Court had not issued such direction in exercise of its powers under s. 427(1), as it was not prayed for and thereby the subsequent order of conviction and sentence had become final. 4. The provisions of s. 482 of the Procedure, are identical with those of s. S61A of the repealed Code of Criminal Code, 1923. 4. The provisions of s. 482 of the Procedure, are identical with those of s. S61A of the repealed Code of Criminal Code, 1923. Section 561A was incorporated in the Code of 1923 to set at rest doubts expressed by some High Courts regarding existence of inherent powers of the High Court by declaring that nothing in the Code shall be deemed to limit or affect the inherent powers of the Court to make orders for the purposes mentioned in the section. 5. The opening words of the section make it ineluctably clear that the inherent power is not controlled or circumscribed by the provisions of the Code. However, a catena of decisions of the Supreme Court and different High Courts have laid down that the inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code nor can it be exercised contrary to or inconsistent with such provisions. In other words, when the matter is not covered by any specific provision of the Code or there is no express or implied embargo against its exercise, inherent power can be invoked for any of the three purposes mentioned in s. 482 of the Code. We have already found that s. 427(1) of the Code has been enacted by way of an exception to the general rule regarding commencement of sentence and power of the Court of direct concurrent running of sentence thereunder cannot be invoked after a certain stage. In view of its such limited application, it cannot be said that S. 472 is the sole repository of powers regarding issuing of such direction relating to concurrent running of sentences nor it can be said that it prohibits, expressly or impliedly, exercise of the salutary power under s. 482 of the Code. 6. From the various decisions cited at the Bar, we find that the consensus of the different High Courts is that the inherent power of High Court under s. 482 of the Code can be invoked in appropriate cases, even if the discretion under s. 427(1) of the Code has not been exercised by the appropriate Court at the Appropriate stage. The view so expressed conforms with the view we have taken and we retrain form dealing with those decisions to avoid prolixity. The view so expressed conforms with the view we have taken and we retrain form dealing with those decisions to avoid prolixity. However, as the Full Bench of the Delhi High Court has struck a discordant note in the case of Gopal Das v. The State reported in AIR 1978 Delhi 138, we will have to refer to the same. In that case, the Delhi High Court relied upon the observations made by the Supreme Court in the case of Palaniappa Gounder v. Tamil Nadu reported in AIR 1977 SC 1323 , while examining the scope of s.482, that if there was an express provision in a statute governing a particular subject, there was no scope for invoking or exercising inherent powers of the Court because the Court ought to apply the provisions of the statute, which were advisedly made to govern the particular subject matter (emphasis supplied) and held, as follows : - "The principle of law having been settled forbidding exercise of inherent powers in regard to matters specifically covered by the other provisions of the Code, the petitioners having Dot sought the relief now sought to be procured in these petitions by filing an appeal or revision cannot be permitted to circumvent the provisions of law in pressing these petitions. In view of the decisions of the Supreme Court in R.P. Kapur's case AIR 1960 SC 866 (supra, as also in Palaniappa Gounder's case AIR 1977 SC 1323 (supra) the view taken in Mullapudi Venkanna v. The State of Andhra Pradesh, AIR 1964 Andh Pra 449 ; Jainta Kumar Banerjee v. State, AIR 1955 Cal 632 ; Baij Nath Kurmi v. State, AIR 1961 Pat 138 ; and Mulaim Singh v. State, 1974 Cri LJ 1397 (All) (FB) that High Court in the exercise of its inherent powers can order the sentences imposed on an accused person to run concurrently cannot be supported." 7. We regret our inability to accept the above view as we have already found that s. 427(1) does not cover the entire field relating to issuing of directions for concurrent running of sentences and, as such, the words underlined above do not stand in the way of the High Court in exercising powers under s. 482 of the Code of Criminal Procedure in appropriate cases. 8. 8. But then, as has been observed by the Supreme Court in the case of Palaniappa (supra), legitimacy is not to be confused with propriety and the fact that the Court possesses a certain power does not mean that it must always exercise it. It will, however, be an exercise in futility to lay down exhaustively the situations and circumstances in which the exercise of inherent power would be justified; but law is well-settled that such power Can be exercised only in cases of forensic exigencies and formidable compulsions. 9. Keeping in view the above principle, let us see whether this is a fit case for conscientious application of judicial powers under s. 482 of the Code. An order under this section can be made i) to give effect to any order under the Code; ii) to prevent abuse of the process of any Court; or iii) otherwise to secure the ends of justice. The question of invoking Power under Clause(i) above in this case does not arise, as the orders of the trial Court are enforceable on their own strength and the orders having been passed legally by a competent Court, it cannot be said to be abuse of the process of the Court so as to attract Clause (ii). . Therefore, we have only to consider whether to secure the ends of justice, we should exercise our inherent powers. 10. The petitioner has been convicted in three separate cases of dacoity and the following successive sentences have been passed against him-i) rigorous imprisonment for 6 years and a fine of Rs. 500/-, in default, rigorous imprisonment for 6 months more; ii) rigorous imprisonment for years and a fine of Rs. 1,000/-, in default, rigorous imprisonment for 3 months more; and iii) rigorous imprisonment for 7 years. Therefore, if the sentences run successively, the petitioner will have to suffer rigorous imprisonment for 20 years, and in case he failss to pay the fine, rigorous imprisonment for 9 months more. Undoubtedly, the petitioner has committed heinous crimes on three different occasions and therefore does not deserve any sympathy. But we can not lose sight of the fact that if the sentences are to run successively, he may have to spend the rest of his life in incarceration. Undoubtedly, the petitioner has committed heinous crimes on three different occasions and therefore does not deserve any sympathy. But we can not lose sight of the fact that if the sentences are to run successively, he may have to spend the rest of his life in incarceration. Striking a balance between these two disparate considerations, we feel justice will be sufficiently met if the sentence of 7 years of rigorous imprisonment imposed upon him for the third conviction is directed to run concurrently with the other two sentences, which needless to say, will run successively, and we order accordingly. The application is thus disposed of. Before we part with this judgment, we place on record our deep appreciation for the assistance rendered by Sri Balai Chandra Roy, the learned Advocate, who appeared as amicus curiae. J. N. Hore, J,-1 agree. Haridas Das, J .-1 agree. Order passed. Application disposed of.