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2009 DIGILAW 345 (MP)

Sanjeev Meena v. State of M. P.

2009-03-18

INDRANI DATTA

body2009
ORDER 1. Petitioner has filed this petition under section 482 of Code of Criminal Procedure praying for a direction that the sentence passed against him in Criminal Appeal No. 44 of 2008 by Sessions Judge, Guna by which, his appeal against judgment passed by JMFC Raghogarh convicting him under section 224 of IPC and sentencing him for two years Rigorous Imprisonment and to pay fine of Rs. 1,000/- was dismissed on the ground of limitation. That sentence is to run concurrently with the sentence of life imprisonment awarded to him in Sessions Trial No. 321 of 2005 by ASJ, Chachoda on 29.11.2006. 2. In Sessions Trial No. 321 of 2005, petitioner was convicted for offence under section 302 of IPC and sentenced to life imprisonment with some fine vide judgment dated 29.11.2006 and then petitioner was convicted on 24.3.2007 by the Court of JMFC Raghogarh under section 224 ofIPC and sentenced to undergo Tho years Rigorous Imprisonment and to pay fine of Rs. 1,000/-. Appeal was preferred against judgment of conviction and sentence of JMFC, Raghogarh which was dismissed on the ground of limitation. 3. Learned counsel for the petitioner submits that in view of the provisions of section 427 of CrPC, petitioner who was convicted under section 302 of IPC on 29.11.2006 and was sentenced to Rigorous Imprisonment for life has to undergo that sentence first and subsequent sentence awarded by JMFC under section 224 of IPC on 24.3.2007 may commence after expiry of previous sentence. Therefore, it is essential for securing the ends of justice, that the sentences imposed upon him in both the cases be directed to run concurrently. 4. Learned counsel for the State opposed the submission made by learned counsel for the petitioner and prayed that the petition deserves to be dismissed. 5. Perused the documents filed on record. 6. Section 427 of Code of Criminal Procedure reads as follows: "427. 4. Learned counsel for the State opposed the submission made by learned counsel for the petitioner and prayed that the petition deserves to be dismissed. 5. Perused the documents filed on record. 6. Section 427 of Code of Criminal Procedure reads as follows: "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: 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". From bare perusal of section 427 of the Code, it appears that there are two different situations. As per section 427 (1), when a person already undergoing sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or to imprisonment for life, then his second sentence shall commence at the expiration of-the imprisonment to which he has been previously sentenced, unless the Court directs that subsequent sentence shall run concurrently with such previous sentence. In that condition, the accused has to take permission of the Court that subsequent sentence imposed upon him, shall run concurrently with his previous sentence. 7. Hon'ble apex Court in para 11 of the case of Kudva v. State of Andhra Pradesh [ 2007 CrLJ 763 ] has held as under: "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 judgment in appeal. 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 judgment 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". In the light of above legal proposition, it is apparent that in above situation the prayer to the effect that subsequent sentence passed on subsequent conviction is to run concurrently with previous sentence, is to be made before the concerned Court or before the appellate Court as observed by bench of this Court in Kamal Siilgh v. State of M.P. [ 2008 (I) MPWN 14 = ILR (2007) MP 1835]. 8. So far as sub-section (2) of section 427 of Code is concerned, the situation is different here. From bare perusal of sub-section (2), it is apparent that 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. In that situation, there is no requirement for any direction of the Court as subsequent sentence will automatically run concurrently with previous sentence. 9. Taking into consideration the facts and circumstances of the present case, in the light of above legal proposition as present petitioner was convicted under section 302 of Indian Penal Code and sentenced to life imprisonment vide order dated 29.11.2006 in Sessions Trial No. 321 0 2005 and then in Criminal Appeal No. 44 of 2008 vide order dated 19.2.2008 under section 224 of Indian Penal Code and sentenced to undergo Two years Rigorous Imprisonment, therefore, as per provisions of section 427 (2) of Code subsequent sentence shall run concurrently with the previous sentence. 10. With the above direction, this petition stands disposed of.