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2010 DIGILAW 597 (GUJ)

ANANTKUMAR SHRIGANESH TIWARI v. STATE OF GUJARAT

2010-12-20

A.L.DAVE, Vijay Manohar Sahai

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JUDGMENT : A.L.DAVE : - These applications are made by the convict, who came to be convicted in two different offences by two different judgments. The applicant came to be convicted in Sessions case No.46 of 2003 by Sessions Court, Gandhinagar and in Sessions Case No.133 of 2003 by Sessions Court, Ahmedabad (Rural) decided on 5.8.2004 and 18.1.2006 respectively. He had preferred Criminal Appeal Nos.1613 of 2004 and 514 of 2006. Both the appeals came to be dismissed by this Court on merits. Now, he has approached this Court with these applications making the following prayers :- “(A) Your Lordships may be pleased to allow this application; (B) Your Lordships may be pleased to pass an order of the sentences in Criminal Appeal No.1613 of 2004 dated 22.1.2009 and Criminal Appeal No.514 of 2006 dated 6.5.2009 may be run concurrently and further be pleased to direct the respondent No.2 to give the benefits of set off in both the sentences; (C) Your Lordships may be pleased to pass such other and further orders as may be necessary in the interest of justice; (D) As the applicant is in jail, affidavit may be dispensed with.” 2. We have heard learned advocate Mr Vijay Patel appearing with Mr Rupera. He has relied on a decision of the Allahabad High Court rendered in Mulaim Singh vs. State, 1974 Cri. LJ 1397 and a decision of the Bombay High Court in Satnam Singh Puransing Gill vs. State of Maharashtra, 2009 Cri. LJ 3781. He submitted that this Court may exercise its discretion and direct that both the sentences awarded in two trials and confirmed by two different appeals by coordinate Benches of this Court may be ordered to run concurrently in exercise of powers under Section 427 of Cr. PC. He also submitted that the Court may exercise its inherent powers in the interest of justice. 3. Section 427 of Cr. PC runs as under :- “427. Sentence on offender already sentenced for another offence. PC. He also submitted that the Court may exercise its inherent powers in the interest of justice. 3. Section 427 of Cr. PC runs as under :- “427. Sentence on offender already sentenced for another offence. - (1) Whena 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.” 4. A reading of Section 427 makes it clear that the discretion of the power is vested in the trial Court while deciding and awarding sentence at the time of second conviction to direct whether the sentence of the second case should run concurrently. In the instant case, the applicant failed to invoke this jurisdiction of the trial Court at the end of the second trial when he came to be convicted and sentenced for the second offence. The matter does not end there. The applicant at the time of hearing of the appeals also did not make any move for invoking this jurisdiction even if it is assumed that the appellate Court is invested with such powers under Section 427 of Cr PC. It is only after both the appeals are dismissed on merits, that these Criminal Misc. Applications are preferred on 25.3.2010 making this prayer. 5. It is not in dispute that both the cases arose out of two different and distinct incidents not connected with each other even remotely. As such, there is no nexus between the two and cannot be considered to be offences forming part of same transaction. The appeals are already decided and once the appeals are decided and judgments are pronounced, the Court becomes functus officio. As such, there is no nexus between the two and cannot be considered to be offences forming part of same transaction. The appeals are already decided and once the appeals are decided and judgments are pronounced, the Court becomes functus officio. Now, to accept the case of the applicant by entertaining these applications and to direct that the sentences would run concurrently would amount to reviewing the earlier order, which is not permissible in law. 5.1 Similarly, as stated earlier in this judgment, Section 427 powers deal with or invest the powers in the trial Court and not the appellate Court. Even if it is considered that the appeal Court has such jurisdiction, then also it can be exercised only at the stage of hearing and deciding the appeal heard subsequently and not thereafter. Doing so, would mean that this Court is exercising a superior jurisdiction over the decision of a coordinate Bench, which is not permissible and, therefore also, these applications cannot be entertained. 6. The judgments which are relied upon by the learned advocate for the applicant are examined. None of these judgments say that the Court can exercise jurisdiction under Section 427 of Cr PC after the order is signed and judgment is pronounced. Neither of these judgments hold that sentences can be ordered to run concurrently even though the two incidents which constituted offences were distinct and different from each other and not connected even remotely. Under the circumstances, the judgments would be of no help to the applicant. 7. The applications must fail and stand dismissed.