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2007 DIGILAW 994 (MP)

Kamal Singh v. State of M. P.

2007-09-14

DEEPAK VERMA, RAKESH SAKSENA

body2007
ORDER Saksena, J. -- 1. Petitioner has filed this petition under sections 427 and 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') praying for a direction that sentence passed against him in Sessions Trial No.7 of 1986, by Second Additional Sessions Judge, Sehore, to run concurrent with the sentence of life imprisonment awarded to him in Sessions Trial No. 63 of 1995 by First Additional Sessions Judge, Hoshangabad. 2. In Sessions Trial No.7 of 1986 petitioner was convicted for the offence under section 376 read with section 511 of the IPC and was sentenced to rigorous imprisonment for five years by order dated 26.4.1989. Appeal preferred by him against the said judgment was registered before the High Court as Criminal Appeal No. 426 of 1989. This appeal was disposed of by judgment dated 7.3.2000. His sentence of imprisonment was reduced to four and a half years, but in addition he was directed to pay Rs. 10,000/- (Rs. ten thousand) by way of compensation to prosecutrix. 3. In Sessions Trial No. 63 of 1995 petitioner was convicted for the offence under section 302 read with section 149 of the IPC by judgment dated 26.8.1997 and was sentenced to imprisonment for life by First Additional Sessions Judge, Hoshangabad. Appeal preferred by him against the said judgment was registered as Criminal Appeal No. 1878 of 1997.It was dismissed by judgment dated 5.1.2005. SLP preferred against the said judgment was dismissed by the apex Court on 13.7.2005. 4. Learned counsel for the petitioner submits that in view of the provisions of section 427 of the Code, petitioner who was convicted for the offence under section 376 read with section 511 of the IPC and was sentenced to rigorous imprisonment for 4 1/2 years on 26.4.1989, has to undergo that sentence first and the subsequent sentence of life imprisonment awarded to him under section 302 read with section 149 of the IPC on 26.8.1997, would commence after expiration of his previous sentence, therefore, it would be essential for securing the ends of justice that the sentences imposed upon him in both the cases be directed to run concurrently. 4A·Learned counsel for the State opposing the submission made by the learned counsel for the petitioner, submits that having regard to the nature, facts and circumstances of both the cases, the petition filed by the petitioner deserves to be dismissed. 4A·Learned counsel for the State opposing the submission made by the learned counsel for the petitioner, submits that having regard to the nature, facts and circumstances of both the cases, the petition filed by the petitioner deserves to be dismissed. He submits that petitioner had not made such prayer before the trial Courts as well as at the time of hearing of appeals before the High Court, therefore, section 427 of the code cannot be made applicable at this stage when both the appeals have already been disposed of by the High Court. 5. We have heard the learned counsel for both the sides and perused the record. The factual and legal situation as obtained in the present case was discussed in detail by the apex Court in the case of M.R. Kudva v. State of Andhra Pradesh [ 2007 CrLJ 763 ]. In para 11 of the decision the Supreme Court observed: "11. However, in this case the provision of section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions 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 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. The appeal being devoid of any merit is dismissed." 6. On taking into consideration the facts and circumstances of the present case in the light of above legal proposition, it is apparent that although in both the cases, appeals were preferred before the High Court but no prayer for making the sentences concurrent was made at that time. Similarly, no such prayer was made by petitioner before the trial Court when he was sentenced in subsequent case. As such separate application under the provision of section 427 of the Code is not maintainable. Similarly, no such prayer was made by petitioner before the trial Court when he was sentenced in subsequent case. As such separate application under the provision of section 427 of the Code is not maintainable. Similarly, the inherent powers under section 482 of the Code can also not be exercised in the present situation. Petition is therefore dismissed.