Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 3046 (MAD)

K. Arasan v. State of Tamil Nadu, Rep. by Inspector of Police

2012-07-16

K.N.BASHA, P.DEVADASS

body2012
JUDGMENT K.N. BASHA, J. These petitions are posted before this Bench as per the order of The Hon'ble The Chief Justice on the basis of the reference made by a learned Single Judge in order to answer the question raised which is as follows:- "Whether the inherent power of the High Court under section 482 of the Code of Criminal Procedure can be extended to issue a direction ordering the sentence imposed in a latter case on conviction to run concurrently with the sentence imposed in a former case as provided under section 427 of the Code of Criminal Procedure?" 2. The crux of the question involved in this matter is that whether this Court can invoke the inherent powers under Section 482 of the Code of Criminal Procedure [hereinafter referred to as "Cr.P.C."] for granting the relief under Section 427 Cr.P.C., for ordering the sentence imposed in the former case to run concurrently along with the sentence of imprisonment awarded in the latter case. 3. It is seen that two conflicting views expressed by two learned Single Judges in respect of invoking the jurisdiction under Section 482 Cr.P.C. for granting the relief of ordering the subsequent sentence to run concurrently with the previous sentence awarded against a person in an earlier case which necessitated the learned referring Single Judge to refer the matter to a Division Bench to resolve the said conflict between two decisions. It is seen that a learned Single Judge in A.Palanisamy @ Kaithan Vs Inspector of Police, B1 Police Station, Kadaiveethi, Coimbatore and others reported in [2011] 4 MLJ [Crl.] 813, after referring to various judgments of the Hon'ble Apex Court, has held in paragraph 27, as here under :- "27. In the instant case on hand also, the provision of section 427 Cr.P.C. was not invoked either in the original cases or in the appeals. Under the above said circumstances, Section 427 Cr.P.C. cannot be applied in a separate and independent proceedings by this Court in exercising the inherent jurisdiction under section 482 Cr.P.C." 4. Another learned Single Judge in A.Paulraj Vs. Maria Chellammal and others reported in [2011] 4 MLJ [Crl.] 798 has taken a contrary view by placing reliance on the decision of the Larger Bench of the Hon'ble Apex Court and held as here under:- "26.Since the Larger Bench of the Supreme Court in State of Punjab Vs. Another learned Single Judge in A.Paulraj Vs. Maria Chellammal and others reported in [2011] 4 MLJ [Crl.] 798 has taken a contrary view by placing reliance on the decision of the Larger Bench of the Hon'ble Apex Court and held as here under:- "26.Since the Larger Bench of the Supreme Court in State of Punjab Vs. Madhan Lal [supra] had considered on application filed, under section 482 Cr.P.C. the decision rendered in M.S.Kudva V. State of Andhra Pradesh [supra] may not be applicable and invoking jurisdiction under section 482 Cr.P.C., is indeed available to the petitioner." 5. We have gone through the above two conflicting decisions rendered by the two learned Single Judges. 6. It is seen that the learned Single Judge in A.Palanisamy's case [cited supra] reported in [2011] 4 MLJ [Crl.] 813 has mainly placed reliance on the decision of the Hon'ble Apex Court in M.R.Kudva Vs. State of Andhra Pradesh reported in [2007] 2 SCC 772 (two Judge Bench) to arrive at the conclusion that in the event of not invoking the provision under section 427 Cr.P.C., either in the original case or in the appeal, a separate application filed under section 482 Cr.P.C., before the High Court was not maintainable. 7. In A.Paulraj's case [cited supra] reported in [2011] 4 MLJ [Crl.] 798, the learned Single Judge placed reliance on the Larger Bench [consisting of three Judges] of the Hon'ble Apex Court in State of Punjab V. Madhan Lal reported in [2009] 5 SCC 238 for holding that the petition filed under Section 482 Cr.P.C., is maintainable for invoking the relief under Section 427 Cr.P.C., for ordering the sentence to run concurrently with the sentence already awarded to the same accused in respect of the previous case. The Hon'ble Apex Court in Madhan Lal's case [cited supra] dismissed the appeal preferred by the State of Punjab challenging the order of a learned Single Judge of the Punjab & Haryana High Court allowing the application filed in terms of Sections 482 read with 427 Cr.P.C., and the prayer in the said petition filed before the High Court is to the effect that the quantum of punishment may be permitted to run concurrently in respect of three convictions and sentences imposed on the same accused. Therefore, it is crystal clear that the Larger Bench of the Hon'ble Apex Court consisting of three Hon'ble Judges has given a seal of approval to the view taken by a learned Single Judge of Punjab & Haryana High Court to the effect that the petition filed under Section 482 Cr.P.C., is maintainable for seeking the relief under Section 427 Cr.P.C. It is pertinent to note that the relief under Section 427 Cr.P.C. was granted by the learned Single Judge of Punjab & Haryana High Court by invoking the provision under Section 482 Cr.P.C., for the offence under Section 138 of the Negotiable Instruments Act in which apparently, both the Trial Court and the Appellate Court have not granted such relief under Section 427 Cr.P.C., and it is not known whether such relief was sought for in the original case or in the appeal. 8. Heard Mr.R.Veeramani, learned counsel for the petitioner, Mr.P.N.Prakash, learned counsel who has been requested to assist this Court as Amicus Curiae and the learned Additional Public Prosecutor. 9. Mr.R.Veeramani, learned counsel for the petitioner in Crl.O.P.No.19441/2011 would contend that the petition filed under Section 482 Cr.P.C. before this Court is maintainable for the relief sought for under Section 427 Cr.P.C. and placed reliance mainly on the following decisions :- [a] The decision of the Division Bench of the Andhra Pradesh High Court in V.Venkateswarlu Vs. State of A.P. reported in 1987 Cri.L.J.1621; [b] The decision of the Full Bench of the Madhya Pradesh High Court in Shersingh V. State of M.P. reported in 1989 Cri.L.J. 632 [1]; and [c] The decision of the Full Bench of the Bombay High Court in Satnam Singh Puransingh Gill Vs. State of Maharashtra reported in 2009-LAWS [BOM]-1-87. 10. Mr.P.N.Prakash, learned counsel assisted this Court as Amicus Curiae has submitted that the decision rendered by the Larger Bench (3 Judge Bench) of the Hon'ble Apex Court in State of Punjab V. Madhan Lal reported in [2009] 5 SCC 238 is to be relied and preferred by the High Court. It is contended that the decision of the Hon'ble Apex Court in M.R.Kudva Vs. State of Andhra Pradesh reported in [2007] 2 SCC 772 was rendered by a Bench consisting of Two Judges. It is contended that the decision of the Hon'ble Apex Court in M.R.Kudva Vs. State of Andhra Pradesh reported in [2007] 2 SCC 772 was rendered by a Bench consisting of Two Judges. Mr.P.N.Prakash, learned counsel would further contend that the inherent powers under Section 482 Cr.P.C. could be invoked only in the event of the accused not raising the plea of invoking Section 427 Cr.P.C. before the trial court or the appellate court. Otherwise it would amount to interfering into the findings of the Courts below. 11. We have carefully considered the submissions made by the learned counsel for the petitioner and Mr.P.N.Prakash, learned counsel who has assisted the Court as Amicus Curiae. 12. At the outset, it is relevant to incorporate the provision u/s.427 Cr.P.C., which reads as here under :- "427. Sentence on offender already sentenced for another offence : (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 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." A cursory reading of the above said provision makes it crystal clear that as per the said section, a direction may be given for a sentence awarded in the subsequent case to run concurrently with the previous sentence. There may be a situation that the subsequent convicting Court was not appraised about the existence of the previous sentence and as such, the said Court convicting the same accused in the latter or subsequent case, may not be in a position to consider the relief to be given to the said accused by invoking the provision under Section 427 Cr.P.C. It is for the concerned accused to bring it to the notice of the previous conviction and sentence to the subsequent convicting court by invoking the provision under Section 427 Cr.P.C. It is needless to state that as per the provision under Section 427 Cr.P.C., a discretion is given to the subsequent convicting Court to consider and order the sentences to run concurrently with the previous sentence awarded to the same accused. In the event of the accused not raising the plea either before the original court, namely, trial court or before the appellate court invoking the provision under Section 427 Cr.P.C. due to inadvertence or under other circumstances, the accused cannot be left at lurch without any remedy. 13.0. It is pertinent to refer the following decisions rendered by the other High Courts in respect of the issue involved in this matter. 13.1. A Division Bench of the Andhra Pradesh High Court in V.Venkateswarlu Vs. State of A.P. reported in 1987 Cri.L.J.1621 has held as here under:- "10. ....... The High Court, while exercising its revisional jurisdiction suo motu or in exercise of its inherent power under S.482, can direct the sentences to run concurrently as provided under S.427, Cr.P.C., even though the convictions and sentences that have been passed by the Additional Sessions Judges of different Sessions Divisions have become final." 13.2. A Full Bench of Madhya Pradesh High Court in Shersingh V. State of M.P. reported in 1989 Cri.L.J. 632 [1] has held as here under:- "Inherent powers of the High Court can be invoked under S.482 even if the Trial Court or the appellate or revisional court has not exercised its discretion under S.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 S.427 [1] and it can be invoked at any stage even if there is no such order passed under S.427 [1] by the Trial Court or appellate or revisional Court and even though the conviction has become final." 13.3. The view taken by the Division Bench of the Andhra Pradesh High Court and the Full Bench of the Madhya Pradesh High Court are in line with the view taken by the Larger Bench of the Hon'ble Apex Court in State of Punjab Vs. Madhan Lal reported in [2009] 5 SCC 238. As a matter of fact, as already pointed out, the learned Single Judge of this Court in A.Paulraj's case [cited supra] also referred the decision of the Hon'ble Apex Court in M.R.Kudva Vs. State of Andhra Pradesh reported in [2007] 2 SCC 772 (Two Judge Bench) and preferred to place reliance on the decision rendered by the Larger Bench consisting of three Judges of the Hon'ble Apex Court. 14.0. At this juncture, it is relevant to refer the following decisions of the Hon'ble Apex Court : 14.1. In Union of India V. K.S.Subramanian, reported in AIR 1976 SC 2433 the Hon'ble Apex Court has held as follows : "The proper course for a High Court is to try to find out and follow the opinions expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by the Supreme Court itself. The practice has not crystallized into a rule of law declared by the Supreme Court. If however, the High Court is of the opinion that the views expressed by Larger Benches of the Supreme Court are not applicable to the facts of the case it should say so giving reasons supporting its point of view." 14.2. The Hon'ble Apex Court in State of Uttar Pradesh V. Ram Chandra reported i n AIR 1976 SC 2547 has held as follows : "Constitutional position as regards the powers of Court to go behind the orders of termination to find out motive of Government is clear. Even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot be disregard or skirt the views expressed by the Larger Benches. Even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot be disregard or skirt the views expressed by the Larger Benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law, is followed by the Supreme Court itself." The above decisions rendered by the Hon'ble Apex Court make it crystal clear that the High Court has to follow the opinion expressed by the Larger Benches of the Hon'ble Apex Court in preference to those expressed by Smaller Benches. 15. As far as the issue involved in this matter, we are of the considered view that the learned Single Judge in A.Paulraj's case [cited supra] has rightly placed reliance on the decision of the larger bench consisting of Three Judges of the Hon'ble Apex Court in State of Punjab Vs. Madhan Lal reported in [2009] 5 SCC 238 which is binding on this Court and taken a correct view. 16. It is to be reiterated that invoking the jurisdiction under Section 482 Cr.P.C. in order to grant the relief under Section 427 Cr.P.C. would not amount to altering, varying or modifying the findings of the trial Court or appellate court. On the other hand, it is always open to this Court to exercise power under Section 482 Cr.P.C. to secure the ends of justice. It is needless to say that this Court has to exercise its judicial discretion for invoking the power under Section 482 Cr.P.C. for granting the relief under Section 427 Cr.P.C., on the basis of the facts and circumstances and gravity of the charge levelled against the accused in each case. 17. In the result, we are answering the reference to the effect that the inherent power of the High Court under Section 482 Cr.P.C., can very well be extended to issue a direction ordering the sentence imposed in a latter case on conviction to run concurrently with the sentence imposed in a former case as provided under Section 427 Cr.P.C. 18. The Registry is directed to place the above criminal original petitions before the concerned learned Single Judge. 19. The Registry is directed to place the above criminal original petitions before the concerned learned Single Judge. 19. Before parting with this case, we place on record our deep appreciation for the assistance rendered by Mr.P.N.Prakash, learned counsel as 'Amicus Curiae' despite his busy schedule. The efforts of the learned counsel for the petitioner also deserve to be appreciated.