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2015 DIGILAW 93 (MP)

Kalu v. State of M. P.

2015-01-27

ALOK VERMA

body2015
ORDER 1. This application under section 482 read with section 427 of CrPC is filed by the applicant – Kalu for seeking a direction to the effect that subsequent sentence awarded to him may run concurrently with the previous sentence that was awarded to him in a different case. 2. Brief facts of the case are that the present applicant sentenced to undergo 5 years rigorous imprisonment with fine of Rs.500/­ under section 394 of IPC by learned First Additional Sessions Judge, Dhar in Sessions Case No.327/2009. The applicant filed an appeal before this Court, which was registered as criminal appeal bearing No.327/2009 and was disposed of by order dated 12.4.2010. The appeal was partly allowed and while maintaining the conviction under section 394 of IPC, the sentence was reduced to the period already undergone. The applicant was also facing trial under section 394 and 397 of IPC in ST No.311/2009. He was again convicted by the Special Judge and Additional Sessions Judge, Dhar in judgment dated 31.7.2010 and he was sentenced to rigorous imprisonment for 7 years under section 394 read with section 397 of IPC. Present applicant preferred appeal against this conviction and sentence, which is pending before this Court as Criminal Appeal No.944/2010. 3. Admittedly, none of the Courts below exercised power under section 427 of CrPC and, therefore, sentence awarded to him would run consecutively one after the other. By the present application, the applicant prays that a direction may be issued now that sentence awarded to him in two above mentioned cases, should run concurrently, exercising the extra ordinary power conferred to this Court under section 482 of CrPC. 4. Learned counsel for the applicant cited judgment of Full Bench of this Court in the case of Shersingh v. State of M.P. reported in 1989 JLJ 201 (FB)=1989 CriLJ 632. In this case, benefit of provisions of section 427 of CrPC was not extended to the accused and question arose whether such direction can be issued by the High Court under section 482 of CrPC. The Full Bench while dealing with the legal questions referred to it by the learned Single Judge of the Court, formed following questions for consideration :­ (i) ........................... (ii) Whether the High Court can entertain application under section 427 of CrPC. 5. The Full Bench while dealing with the legal questions referred to it by the learned Single Judge of the Court, formed following questions for consideration :­ (i) ........................... (ii) Whether the High Court can entertain application under section 427 of CrPC. 5. It may be observed here that in this question, there appears to be typographical error and instead of section 427 of CrPC there should have been section 482 of CrPC. The Full Bench answered the question in the following terms:­ (7) ........................... (ii) The High Court has power in appropriate cases to entertain an application under section 482 of the Code by invoking its inherent powers at any time subsequent to the decision in a given case even if the trial Court or the appellate or revisional Court has failed to exercise its discretion under section 427(I) of the Code. The case be now placed before the Single Bench for decision on merits. 6. By citing the above judgment, learned counsel for the applicant submits that this Court has ample power to exercise the jurisdiction conferred to it under section 482 of CrPC and issue a direction as sought for. 7. He however, cites judgment of Hon'ble the Supreme Court in the case of M.R. Kudva v. State of A.P. reported in (2007)2 SCC 772 . In this judgment, Hon'ble the Supreme Court laid down the principle that when the provision of section 427 of CrPC was not invoked in the original case or appeals, a separate application filed before the High Court after the dismissal of the SLPs, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature. It may be mentioned here that any case before the Supreme Court, both the appeal were decided by the High Court were dismissed. The Supreme Court further held that where two proceedings are separate and independent, the provisions of section 427 of CrPC do not apply. The relevant paragraph 12 of this judgment may be quoted below :­ 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 relevant paragraph 12 of this judgment may be quoted below :­ 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. 8. Thus, as per the principle laid down in M.R. Kudva (supra), case, this Court has no jurisdiction where the provisions of section 427 of CrPC were not resorted to while deciding the appeals by the High Court also where the cases arise out of separate and independent proceedings, power under section 427 of CrPC cannot be exercised. 9. In this case, however, the applicant is in disadvantageous position because second appeal is still pending before this Court where he would get an opportunity to raise the prayer before the Court to exercise power conferred under section 427 of CrPC and issue appropriate direction. 10. In this view of the matter, no case is made out for exercising the extra ordinary jurisdiction granted under section 482 of CrPC to this Court and, therefore, the application is devoid of any merit and liable to be dismissed and is hereby dismissed. .................