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Madhya Pradesh High Court · body

2012 DIGILAW 297 (MP)

Azij Khan Pathan v. State of M. P.

2012-03-14

SHUBHADA R.WAGHTNARE

body2012
JUDGMENT : Bythis application under Section 482 of the Cr.PC readwith Section 427 of the Cr.PC the applicant Azij Khan Pathan who is in jailhas moved the application for directing the sentence to run concurrently. 2.Brief facts necessary for elucidation are that there were two convictionsagainst the present accused applicant Azij Khan fortwo separate offences as follows :- Inthe first offence the date of the incident was 10-8-1997 , and the applicant was being proceeded foroffence under Section 8/21 (b), (c) of the NDPS Act. The Trial Court convictedhim on 17-6-2004 andsentenced him to 10 years rigorous imprisonment and fine of Rs .1 lac . The sentence was, however, reduced to 7 1/2years in Criminal Appeal No. 1140/2004, decided on 31-7-2008 . Inthe second offence, the date of the incident is 19-10-2001 . The Trial Court convicted him for offenceunder Section 8/21 (b) of the NDPS Act and sentenced to 10 years' rigorousimprisonment with fine of Rs . 1 lac on 17-6-2004 . In appeal, i.e., Cri.A . No. 796/04the sentence was upheld on 5-4- 2010 , however, thedefault clause regarding the payment of fine was modified to simpleimprisonment of 2 months. 3.Counsel for the petitioner has candidly admitted that there was no prayer formaking the sentence, to run concurrent either in the earlier Appeal No.1140/2004 on in the Appeal No. 796/2004, which was decided at later date, i.e.,5-4-2010; and that, this present application is being moved separately underSection 482 of the Cr.PC since the applicant is incustody from 20-10-2001. He prayed for direction that the sentence be directedto run concurrently as the applicant will have completed his entire sentence inboth the cases. Counsel relied on the following few judgments of the Apex Court as well as various High Courts. Relyingon full judgment of Madhya Pradesh in the matter of Shersingh Vs. State of M.P., 1989 PLJ Page 116, Counsel stated that a Full Bench while considering similar question, when the accused was convictedof 2 distinct and separate offences and sentence were passed by two differentCourts and they had become final, the application was moved by the accusedbefore the High Court under Section 482 to make the sentences run concurrently.The Apex Court had heldthat such an application was maintainable by the High Court under exercise ofits inherent jurisdiction. The High Court is competent to issue such directionand the High Court has power in appropriate cases to entertain an applicationunder Section 482 of the Code by invoking its inherent power at any timesubsequent to it in a given case even if the Trial Court or the Appellate Courtor the Revisional Court has failed to exercise itsdiscretion under Section 427 (1) of the Code. The Apex Court further declaredthat the decision of M.P. High Court in the matter of A.S. Naidu Vs. State, reported in 1974 MPLJ 769 , was no longer good law to the extent asit says that the power under Section 427 (1) of the Cr.PC can be exercised by the Trial or Appellate Court at any stage at any time evenafter decision on merits in the case, but not under Section 482 since the Courtdoes not become fitnctus officio. Relyingon another judgment of the Andhra Pradesh High Court in the matter of Ammavasai and another Vs. Inspector of Police, Valliyanur and others, 2000 Cri.LJ 4662, whereby considering the benefit of the sentences to run concurrently theCourt had held that the occurrences of all the cases be taken place between 3to 5 months and the offence against the appellants were found in all cases tobe under Section 395 of the IPC, the appellants have been directed to undergo 7years' rigorous imprisonment in each case and the appellants claimed benefitunder Section 427 to avoid undergoing imprisonment of total period of 28 or 35years in jail and the benefit if allowed to the appellants, they would be outof after serving sentence of 7 years in one case, however, the Apex Court haddirected that to meet the end of the justice the appellants were to undergototal period of 14 years of imprisonment in respect of all the convictionspassed against them. Relyingon judgment of the Bombay High Court Counsel stated that in the case of Mohan Bhanudas Mohite Vs. Relyingon judgment of the Bombay High Court Counsel stated that in the case of Mohan Bhanudas Mohite Vs. State of Maharashtra , 2004 Cri.LJ 2945,the Bombay High Court had considered the similar question of concurrent runningof sentence against the accused for offence under Section 21 of the NDPS Actand the Court was posed the question whether Section 32-A of the NDPS Act wouldAct as a bar of such a direction for making sentence to run concurrentlybecause Section 32-A of the NDPS Act prohibits suspension, remission orcommutation of sentence and the Court was pleased to hold that Section 427 ofthe Cr.PC is not hit by Section 32-A of the NDPS Act.The Bombay High Court had relied on the earlier judgment by the Apex Court in the matter of Ammavasai (supra), Counsel prayed that the application be allowed and benefit of thesentence to run concurrently be granted to the accused. 4.Per contra, Counsel for the respondent/State has relied on two decisions tooppose the Counsel for the applicant. Relying on judgment of Andhra PradeshHigh Court in the matter of Amarnath Umakanth Vs . State of A.P., 1999 Cri.LJ 3801, Counsel stated that the learned Single Judgehad categorically considered the question whether the inherent powers of theHigh Court to direct subsequent sentence to run concurrently with earliersentence was considered in its entire scope. The Court found that thepetitioner had undergone the earlier sentence and the said sentence was notsuspended during the pendency of the appeal and inthis light order directing subsequent sentence to run concurrently with theearlier sentence could not passed. Moreover, the same view has been reiteratedrecently by the Apex Court in the matter of M.R. Kudva Vs. State of A.P., (2007) 2 SCC 772 , whereby the Apex Court had specificallyconsidered the question whether in a given case when the provision underSection 427 of the Cr.PC was not invoked in theoriginal cases or appeals or separate application filed before the High Courtafter the dismissal of the SLP was not maintainable, the Court held that theHigh Court could not have exercised its inherent jurisdiction in a case of thisnature which is has previously not exercised while deciding the appeals. TheApex Court further held that the application under Section 482 of the Cr.PC is not an appropriate remedy as neither of the TrialJudge nor High Court while convicting and sentencing the appellants indicatedthat sentences passed against him in both the cases shall run concurrently orthat Section 427 of the Cr.PC would be attracted andhence Section 427 of the Cr.PC could not rightly beapplied in a separate and independent proceedings by the High Court and theappeal was, therefore, dismissed. Counsel prayed for dismissal of theapplication. 5.On considering the above submissions, I find that as already observed above inthe present case, while deciding both the appeals by the High Court such aprayer was not made before the Court and in this light although there is a FullBench judgment of this High Court of M.P., it is of the year 1989 and whereasthe judgment of the Apex Court in the matter of M.R. Kudva (supra), is of the year 2007 and it would be applicable in full force in thepresent case. Moreover, the case of Ammavasai (supra), has already been considered by the Apex Court in Para 10 of its decision and in these circumstances, Ifind that the application is without merit and the sentence cannot be directed torun concurrently. Evenotherwise, I find that, at the time of decision of the second, case, i.e.,Criminal Appeal No. 796/2004 the sentence in the first offence was already overand the sentence had begun to run in the second case only thereafter. In suchcircumstances, even if the specific words of Section 427 of the Cr.PC are considered, I find that the Section 427 mandatesthat "a person already undergoing the sentence of imprisonment issentenced of subsequent conviction" whereas during decision of the secondcase Cri.A . No. 796/04, i.e., appeal before the HighCourt there was no conviction pending against the present applicant on 5-4-2010 the date of the judgment.And, I find that in this light the application is not maintainable because thenthe provisions of Section 427 are not attracted at all. No. 796/04, i.e., appeal before the HighCourt there was no conviction pending against the present applicant on 5-4-2010 the date of the judgment.And, I find that in this light the application is not maintainable because thenthe provisions of Section 427 are not attracted at all. 6.After having bestowed my anxious consideration to the facts of the case and theprovision of Section 427 of the Cr.PC , I find that atthe time of passing the second conviction against the same accused; thecondition precedent is that, the accused must be undergoing a sentence; only,then the Court can pass a direction to make the subsequent sentence concurrent.The application is thus without merit and is dismissed as such.