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2005 DIGILAW 2590 (RAJ)

Mahaveer v. State of Rajsthan

2005-09-27

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By the instant criminal miscellaneous petition under Section 482, CrPC, the accused-petitioner seeks direction to run the substantive sentence aswarded by the Additional Chief Judicial Magistrate, Gulabpur, district Bhilwara (for shot, “the trial Court” hereinafter) in Criminal Case No. 129/2000 vide order dated 30.01.2004 concurrently with the substantive sentence of imprisonment awarded by the trial Court previously in Criminal Case No. 12/2002 vide Judgment and order dated 06.01.2004. 2. I have heard learned Counsel for the parties. 3. The facts and circumstances giving rise to the instant petition are the petitioner Mahaveer was convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) by the trial Court vide Judgment and order dated 06.01.2004 in Criminal Case No. 12/2002 and sentenced to undergo one months simple imprisonment and a fine of Rs. 20,000/-, in default of payment of fine, further to undergo three months simple imprisonment. The very Court convicted the petitioner for the offence under Section 138 of the Act vide Judgment dated 30.01.2004 in Criminal Case No. 129/2000 and sentenced to undrego one months simple imprisonment and a fine of Rs. 7,000/-, in default of payment of fine, further to undergo one months simple imprisonment. However, there was no order to run the substantive sentences concurrently, and, therefore, the petitioner seeks direction for running the substantive sentences of imprisonment concurrently. Section 427 of the Code reads as under: -“427. Sentence on offender already sentenced for another offence.-(1) when a person already undergoing a sentence of imprisonment is sentence 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.” 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.” 4. From a plain reading of the above provision of the Code, it is clear that when sentence of imprisonment or imprisonment for life is imposed upon a person already undergoing the imprisonment, but not the imprisonment for life, such substantive sentence shall commence at the expiration of the imprisonment already imposed and being undergone, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence, subject, however to the proviso given therein and the special provision made in Sub-section (2) of Section 427 of the Code with respect of the convicts already undergoing life imprisonment. 5. Thus, it is apparent from the above provision that the Court may diract subsequent substantive sentence of imprisonment shall run concurrently with the previous substantive sentence of imprisonment. Such direction may be given by the Court after taking into consideration the facts of the case while passing the subsequent sentence. 6. In Mulaim Singh Vs. State, 1974 CriLJ 1397, a Full Bench of Allahabad High Court held that it would be competent for the High Court in exercise of its inherent power to direct that the sentence of imprisonment under a subsequent conviction shall run concurrently with a previous sentence even if the stage for exercise of discretion under Section 397 (1) of the Code (corresponding to Section 427 (1) of the New Code) is over in circumstances where it would serve any of the three purposes mentioned in Section 561-A (corresponding to Section 482 of the New Code), i.e. to give effect to any order under the Code, or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. 7. 7. In Mukhtiar Singh vs. State, 1995 CriLJ 2057, while considering the provisions of Sections 427 and 482 of the Code, it was held by the Jammu & Kashmir High Court that where a convict out of ignorance or because of default of his Counsel or for any other reasons may omit to ask for running of the sentence concurrently in the subsequent trial, the High Court possess the inherent power to pass appropriate directions in a fit case and while doing so, it would not be altering any Judgment or sentence in the process. The Judgment remains intact and so does the sentence because the High Court in such a case would be only dealing with the manner of the running of the sentence and nothing more. 8. In Shersingh vs. State of M.P., 1989 CriLJ 632, a Full Bench of Madhya Pradesh High Court held that the inherent power of the High Court can be invoked under Section 482 even if the trial Court or the appellate or revisional Court has not exercise its discretion under Section 427 (1) of the Code in directing running of previous and subsequent sentences concurrently. The inherent powers of the High Court is not in any way fettered by the provisions of Section 427 (1) and it can be invoked at any stage even if there is no such order passed under Section 427 (1) by the trial Court or appellate or revisional Court and even though the conviction has become final. 9. In Mohan Lal alias Hanuman Lal vs. State of Rajasthan, 1987 CriLR 241, the petitioner therein was convicted and sentenced. Sentences of imprisonment were varying in terms in the cases and no order for those sentences to run concurrently was passed in the Judgment . The substantive sentences were to be undergone by the accused therein consecutively. This Court directed that the sentences awarded to run concurrently. 10. In Hardeva & Ors. Vs. State of Rajasthan, 2004 (1) WLC (Raj.) 295, this Court held that in exercise of the power under Section 482 of the Code, the Court may direct subsequent sentence shall run concurrently with the previous sentence. 11. This Court directed that the sentences awarded to run concurrently. 10. In Hardeva & Ors. Vs. State of Rajasthan, 2004 (1) WLC (Raj.) 295, this Court held that in exercise of the power under Section 482 of the Code, the Court may direct subsequent sentence shall run concurrently with the previous sentence. 11. Keeping in view the provisions of Section 427 of the Code and the facts and circumstances of the case, to meet the ends of justice, it would be expedient to direct that the sentence awarded by the Additional Chief Judicial Magistrate, Gulabpura, district Bhilwara in Criminal Case No. 129/2000 vide Judgment and order dated 30.01.2004 and affirmed by the Appellate Court in Criminal Appeal No. 9/2004 to run concurrently with the substantive sentence passed by the very Court in Criminal Case No. 12/2002 against the petition vide Judgment and order dated 06.01.2004 and affirmed by the Appellate Court in Criminal Appeal No. 5/2004 vide Judgment and order dated 16.08.2005. 12. Consequently, the miscellaneous petition under Section 482 of the Code is allowed and it is directed that the substantive sentence imposed upon petitioner Mahaveer S/o Rampal Teli in Criminal Case No. 12/2002 decided on 06.01.2004 and in Criminal Case No. 129/2000 decided on 30.01.2004 shall run concurrently.