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Andhra High Court · body

2002 DIGILAW 851 (AP)

Mohd. MADAR SAHEB v. State Of A. P.

2002-07-10

S.R.K.PRASAD

body2002
S. R. K. PRASAD, J. ( 1 ) THE petitioner invokes the inherent powers under Section 482 Cr. P. C. as well as rigorous impriosnment powers vested under Section 427 Cr. P. C. and seeks a direction to order the sentence of 3 years rigorous imprisonment and fine of Rs. 1000/- awarded in each case i. e. , in S. C. Nos. 180 of 1997, 274 of 1997, 88 of 1998 and 90 of 1998 on the file of the Asst. Sessions judge at Sangareddy for the offences under Sections 399 and 395 IPC to run concurrently with the sentence of five years rigorous imprisonment awarded in each case i. e. , S. C. No. 301 of 1997 and S. C. No. 303 of 1994 on the file of the IV Addl. Metropolitan Sessions Judge, Nampally, hyderabad. The petitioner further seeks a direction to order the sentence of five years rigorous imprisonment awarded in each case i. e. , in S. C. No. 301 of 1997 and 303 of 1997 on the file of IV Addl. Metropolitan magistrate, Hyderabad to run concurrently. ( 2 ) THE learned Counsel for the petitioner has drawn my attention to the unreported judgments rendered in Boya anjaneyulu v. The Superintendent of central Prison, Hyderabad (Crl. M. P. No. 2248 of 1994) and Konda Ashok v. The superintendent of Central Prison, Hyderabad (Crl. M. P. No. 2535 of 1994) and contended that the sentences awarded therein were ordered to run concurrently. On the other hand the learned. Public Prosecutor has placed reliance on the decision of this Court reported in V. Venkateshwarlu v. The State of andhra Pradesh (1987 Crl. L. J. 1621) and contended that the petitioner is a professional dacoit and therefore the discretion cannot be exercised in favour of the petitioner. The entire law has been summarised in v. Venkateshwarlu s case (supra) and the relevant portions read as under:"7. At the outset we point that that there is no period of limitation to exercise suo mom power by the High Court under the revisional jurisdiction as provided under Section 397 cr. P. C. The High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, can call for the records and exercise any of the powers conferred on the Court of Appeal. P. C. The High Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, can call for the records and exercise any of the powers conferred on the Court of Appeal. There cannot be any dispute that when an accused prefers an appeal questioning his conviction and sentence, he may also alternatively ask the appellate Court to direct the sentence to run concurrently as provided under Section 427 Cr. P. C. If that be so, we are unable to see as to how the High Court is precluded from exercising its revisional jurisdiction to direct the sentences to run concurrently as provided under Section 427 cr. P. C. The exercise of revisional power can be suo motu or on an application filed by the convicted person. May be in a given case the convicted accused may not prefer revision, but when he files an application under Section 482 Cr. P. C. and when it comes to the knowledge of the High Court and the High Court wants to satisfy itself about the propriety of the sentence passed, it can call for the records and exercise the power of the appellate Court and direct, if necessary, that the sentence should run concurrently as provided under Section 427 Cr. P. C. Similarly, the High Court can also exercise its power under Section 482 Cr. P. C. The question whether there is such a power or not is different from the manner of exercise of the same. It is always left to the discretion of the Court either to exercise its power or not, and in doing so, the facts and circumstances in each case assume importance. We have not come across any decision which goes to the extent of laying down that the High Court cannot exercise its power under Section 397 read with Section 401 Cr. P. C. or under Section 482 cr. P. C. to direct the sentence to run concurrently under Section 427 Cr. P. C. if the facts and circumstances warrant. 8. We shall now refer to some of the decided cases which throw some light on the point. In Sitaraman v. Pattabhiraman, air 1958 Mad. P. C. or under Section 482 cr. P. C. to direct the sentence to run concurrently under Section 427 Cr. P. C. if the facts and circumstances warrant. 8. We shall now refer to some of the decided cases which throw some light on the point. In Sitaraman v. Pattabhiraman, air 1958 Mad. 453 , the learned Single judge held that where the petitioner has exhausted all the remedies available to him under law and sentences have already been passed against him, there is no power in the High Court to review the orders passed by the Trial Court. There is no reference to any of the provisions of law and there is no discussion in this case. In venkanna v. State of A. P. , AIR 1964 AP 449 = 1964 (2)Cri LJ 377, Mohammed Mirza, j. , referred to the judgment of the Madras high Court and disagreed with the view taken therein. He also referred to the judgment of the Patna High Court. He agreed with the view taken by the Patna high Court reported in Baijanath v. State, air 1961 Patna 138 = 1961 (1) Cri LJ 423, where it was held that a petition seeking a direction that the sentence should be ordered to run concurrently does not raise any question either of altering or reviewing the judgment of the High Court and overriding the specific provisions of Section 369, Cr. P. C. and the order passed under Section 561-A would be a separate order. The learned judge in other words held that the High Court can exercise its inherent power and direct the sentence to run concurrently. In A. Satyam v. State of A. P. (1978) 2 Andhra WR 451 = (1978 Cri LJ NOC 2 and 3) Sambasiva Rao, J. , referred the judgment of Mohamed Mirza, J. , reported in Venkanna v. State of A. P. (supra) and also the judgment of the Madhya pradesh High Court reported in A. S. Naidu v. State of Madhya Pradesh, 1975 Cri. LJ 498 and held that the High Court can exercise its power under Section 397, Cr. P. C. which is an independent power and direct the sentence to run concurrently. LJ 498 and held that the High Court can exercise its power under Section 397, Cr. P. C. which is an independent power and direct the sentence to run concurrently. The learned judge, however, pointed that even after the appeal or revisions preferred by the convict against his conviction in the said trial have been dismissed, the High Court can exercise its independent power under sub-section (1) of Section 397. The learned judge did not go into the extent of laying that the inherent power cannot be exercised at all. He simply observed that it may not be necessary to lay down a principle when there is a specific provision under section 397, Cr. P. C. A Full Bench of the allahabad High Court in Mulaim Singh v. State, 1974 Cri. LJ 1397 also held that the court is vested with a discretion to direct that that sentence under the subsequent conviction shall run concurrently with the previous sentence and that can be exercised at the stage when the Court records subsequent conviction. The Full Bench also held that the High Court is competent under Section 561-A to direct that the sentence of imprisonment under a subsequent conviction shall run concurrently with a previous sentence. They however, observed that the inherent power is to be exercised to do the right and to undo a wrong in the course of administration of justice. A Division bench of the Madhya Pradesh High Court in a. S. Naidu v. State of M. P. (supra) observed that the High Court can exercise its discretion under sub-section (1) of Section 397 and direct the sentence awarded in a subsequent trial to run concurrently with the sentence awarded in a previous trial and such power can be exercised even after the disposal of the case on merits and the same does not amount to review of the judgment. In mahesh v. State, 1971 Cri. LJ 1674 (All.) a full Bench, after review of judicial decision on the point held that the inherent power is to be exercised in exceptional circumstances and the same is not meant to re-assess the evidence and has to be exercised to secure the ends of justice. In Baijnath v. State (1961 (1) Cri. In mahesh v. State, 1971 Cri. LJ 1674 (All.) a full Bench, after review of judicial decision on the point held that the inherent power is to be exercised in exceptional circumstances and the same is not meant to re-assess the evidence and has to be exercised to secure the ends of justice. In Baijnath v. State (1961 (1) Cri. LJ 423) (supra) it has been held that a petition under Section 561-A seeking a direction to direct the sentence to run concurrently does not raise any question either of altering or reviewing the judgment and, therefore, such a petition can be entertained. Therefore, almost all the High courts have taken the view that an application is maintainable under Section 482, Cr. P. C. seeking the High Court to exercise its inherent power and give the necessary directions as provided under Section 427, Cr. P. C. We are also of the view that the High Court, suo motu, while exercising its jurisdiction under Section 397 read with Section 401, cr. P. C. can also give the same directions as provided under Section 427, Cr. P. C. in appropriate cases. 9. The learned Public Prosecutor, however, laid considerable reliance on the judgment of the Delhi High Court reported in Gopal das v. State (1978 Cri LJ 961) (supra) wherein it was held that the view taken by the Andhra Pradesh High Court, Calcutta high Court, Patna High Court as well as the allahabad High Court is not good law in view of the decisions reported in R. P. Kapur v. State of Punjab, AIR 1960 SC 866 = (1960 Cri LJ 1239) and Palaniappa Gounder v. State of T. N. AIR 1977 SC 1323 = (1977 cri. LJ 992 ). We have carefully gone through the judgment of the Full Bench of the Delhi high Court and we are unable to see as to how the view taken by the A. P. High Court and the other High Courts can be said to be not good law. In R. P. Kapur v. State of punjab (supra) which is popularly called kapur s case , the inherent power of the high Court as provided under Section 561-A was considered and their Lordships held that the inherent jurisdiction of the High court can be exercised to quash proceedings only in appropriate cases. In R. P. Kapur v. State of punjab (supra) which is popularly called kapur s case , the inherent power of the high Court as provided under Section 561-A was considered and their Lordships held that the inherent jurisdiction of the High court can be exercised to quash proceedings only in appropriate cases. The principles laid down therein mainly apply to the exercise of the inherent jurisdiction to quash the proceedings. Their Lordships did not go to the extent of laying down that the inherent power cannot be exercised at all. In palaniappa Gounder v. State of T. N. (supra) the Supreme Court held that an application under Section 482, Cr. P. C. by the heir of the deceased seeking compensation cannot be entertained since there is an express provision under Section 357 conferring power on the courts to pass an order for payment of compensation. We are unable to see as to how the principle laid down by the Supreme court in this case prevails the High Court from exercising the inherent power when an application is made under Section 482, cr. P. C. seeking the Court to give direction as provided under Section 427, Cr. P. C. The learned Public Prosecutor no doubt submits that when there is specific power under section 427 Cr. P. C. and when the lower court has not exercised the same for some reason or the other, then it is not open for the convict to come forward with an application under Section 482, Cr. P. C. We see no force in this submission. It must be remembered that Section 427, Cr. P. C. provides for directing the sentence awarded in the subsequent case to run concurrently with the previous sentence. It may be that the subsequent convicting Court was not apprised about the existence of the previous sentence. At any rate ordering of sentence to run concurrently does not amount to altering the finding. 5t may be noted that Section 31, cr. P. C. provides for ordering the sentence to run concurrently in a given case. Likewise under Section 427, Cr. P. C. while awarding a sentence in a subsequent case in respect of the person who is already undergoing sentence in a previous case, a discretion is given to the subsequent convicting Court to give such a direction and order the sentence to run concurrently with the previous sentence. Likewise under Section 427, Cr. P. C. while awarding a sentence in a subsequent case in respect of the person who is already undergoing sentence in a previous case, a discretion is given to the subsequent convicting Court to give such a direction and order the sentence to run concurrently with the previous sentence. As laid in the above decisions, even after such a sentence has become final nothing prevents the High court to exercise its suo motu revisional jurisdiction or entertain an application under section 482 Cr. P. C. and give the necessary directions as provided under Section 427 cr. P. C. 10. The learned Public Prosecutor, however, relied on certain passages in the judgment of the Full Bench of the Allahabad High court reported in Mulaim Singh v. State, (1974 Cri. LJ 1397) (supra), wherein it was observed:"the discretion to make the sentence on subsequent conviction run concurrently with the previous sentence must be based on some sound principle and is not meant to be exercised in an arbitrary manner. It would be proper exercise of discretion to make the sentence on a subsequent conviction to run concurrently with the previous sentence where separate trials are held for offence which while constituting distinct offences, are inherently or intimately connected with each other. A person employed to realise money for his master from persons who owe it to him in connection with business dealings may misappropriate money realised from some debtors during the course of a certain period and may be tried separately for each item of money misappropriated and may subsequently be sentenced to separate terms of imprisonment. It would be proper exercise of discretion to make the sentence run concurrently in the exercise of the discretion conferred by Section 397 (1), Cr. P. C. and if that stage is over, by the High Court under section 561a of the Code. A person may be put up for trial for offences punishable under Section 399/522, I. P. C. He may be separately tried for an offence punishable under Section 25, Arms Act, in respect of a weapon recovered from his possession at the time of his arrest. It would be a proper exercise of discretion if the sentence on subsequent conviction is made to run concurrently with the previous sentence. It would be a proper exercise of discretion if the sentence on subsequent conviction is made to run concurrently with the previous sentence. There may be a cause where although it is brought to the notice of the Court holding the subsequent trial or to the appellate Court hearing appeal from the subsequent conviction that the accused was already undergoing a sentence of imprisonment as a result of his conviction in an earlier criminal trial but due to an oversight the Court omits to exercise its discretion of making the sentence on subsequent sentence, it would be a fit case for exercise of the inherent power of the Court under Section 561. A concurrently on the principle that the accused should not be made to suffer on account of the omission of the Court to apply its mind to the discretionary power vested in it under the Code. If the fact of the previous conviction and sentence is brought to the notice of the Court dealing with subsequent trial, whether as an original court or as the 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 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 it should 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 against any express or implied prohibition contained in it. "it can be seen that the Allahabad High court was only laying down certain guidelines and we respectfully agree with these observations. But we are unable to accede to the contention that an application under Section 482, Cr. P. C. seeking directions under Section 427, Cr. P. C. cannot lie at all. The High Court, while exercising its revisional jurisdiction suo motu or in exercise of its inherent power under Section 482, can direct the sentence to run concurrently as provided under Section 427 Cr. P. C. even though the convictions and sentences that have been passed by the Additional Sessions judges of different Sessions Divisions have become final. 11. The High Court, while exercising its revisional jurisdiction suo motu or in exercise of its inherent power under Section 482, can direct the sentence to run concurrently as provided under Section 427 Cr. P. C. even though the convictions and sentences that have been passed by the Additional Sessions judges of different Sessions Divisions have become final. 11. This leads us to the question whether any interference is called for in the instant case. As pointed out by the Full Bench of the Allahabad High Court, this power should be exercised sparingly and not in any arbitrary manner, and the nature of the offence has also to be taken into consideration. It is needless to say that in the case of professional dacoits the Court has to exercise its extraordinary power sparingly with circumspection and in rare cases and that too to correct patent illegalities and to secure the ends of justice. In the instant case, the petitioner is convicted for the offence of dacoity in both the cases. Having regard to the nature of the offence, we do not think that this is a fit case where we should exercise our inherent power or suo motu revisional power in favour of the petitioners. " ( 3 ) THE proposition of law enunciated in the above case, is followed by the Madhya pradesh High Court in Shersingh v. State of m. P. , 1989 Crl. LJ 632. Insofar as the applicability of Section 482 Cr. P. C. is concerned, there cannot be any dispute that this Court has ample power to correct the mistakes committed by the Subordinate courts to avoid miscarriage of justice. Section 31 Cr. P. C. reads as under:"31. Sentence in cases of conviction of several offences at one trial : (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, sentence him for such offences, to the several punishments prescribed therefor 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. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher court:provided that (a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence; (3) For the purpose of appeal by a convicted person the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence. " ( 4 ) FROM a reading of the Section 311 Cr. P. C. it is clear that it is the bounden duty of the Trial Court or the appellate Court to mention whether the sentences are to be run concurrently or consecutively. Proviso (a) to section 31 Cr. P. C. clearly enunciates that a person shall not be sentenced to imprisonment for a longer period than 14 years. It is also clear from the proviso (b) that the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. Section 31 Cr. P. C. applies to cases where a person convicted at one trial for two or more offences. Section 427 Cr. P. C. reads as under:"427. Sentence on offender already sentenced 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 security 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. (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. " ( 5 ) THE provisions of Section 427 Cr. P. C, applies to the facts of this case. The Division bench of this Court in Venkateshwarlu s case (supra) has held that the discretion cannot be exercised in respect of professional dacoits. This Court is bound by the observations made by the Division Bench. ( 6 ) NOW the question to be decided is whether the petitioner/accused is a professional dacoit. ( 7 ) THE offences alleged against the petitioner/accused are under Sections 395 and 396 IPC. The aspect whether the petitioner is a professional dacoit or not has to be considered only at the time of hearing the accused regarding the quantum of sentence to be awarded by the Courts below. I have perused the judgment of the trial Court as well as that of the Sessions court. In none of the judgments, was the petitioner dubbed as a professional dacoit. It is not for this Court to dub or name the petitioner as a professional dacoit. No hard and fast rule can be laid for dubbing or naming a person a professional dacoit. When the Sessions Court refused to award imprisonment for life, he cannot be punished with the sentence of imprisonment more than which it is competent to inflict for a single offence. If the cumulative effect of sentences awarded against the petitioner are taken together, it will be beyond 14 years. Section 31 Cr. PC clearly states that the sentence of imprisonment should not be more than 14 years. The said principle has to be made applicable even in cases where sentences are awarded in different cases. The intention of detaining prisoners in jails is only to bring about reformation. Retribution theory has already given place to reformation theory and the intention is to reform the accused and no purpose will be served by detaining him lifelong and that too more than 14 years undergoing consecutive sentences. To sum up, as there is no finding given in the judgments that the petitioner is a professional dacoit, the High court cannot presume that he is a professional dacoit. To sum up, as there is no finding given in the judgments that the petitioner is a professional dacoit, the High court cannot presume that he is a professional dacoit. As retribution theory has already given way to reformation theory, I am of the considered opinion that the intention of the Legislature has to be culled out from section 31 Cr. PC that no person can be detained beyond 14 years except in cases of imprisonment for life and in cases of sentence of death. I am also of the considered opinion that the cumulative effect of the sentences has to be taken together and a person cannot be detained for more than 14 years under the guise of consecutive sentences. Theory of repentance must be introduced in respect of the convicts so that a person really repented is entitled to reduction of sentence. In view of my finding that there is no specific finding that the petitioner is a professional dacoit either by the Trial Court or by the appellate Court, the sentences awarded against him have to be ordered to run concurrently. In the result, the petition is allowed.