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Madhya Pradesh High Court · body

2017 DIGILAW 592 (MP)

Sohail Khan v. Union of India

2017-05-02

ALOK VERMA

body2017
ORDER 1. This application under section 482 r/w section 427(1) CrPC is filed seeking an order to run concurrently, sentences awarded on present applicant in Sessions Trials No.108/2005 and 109/2005, wherein, the present applicant was convicted under sections 120B, 225/120B, 258, 259 and 420 IPC and under section 69 of Indian Stamp Act and awarded sentence on him 10 years rigorous imprisonment, 10 years rigorous imprisonment, seven years rigorous imprisonment, seven years rigorous imprisonment, seven years rigorous imprisonment and six months rigorous imprisonment respectively. In both the cases, similar sentences were awarded on him and both the judgments were pronounced by same Judge on 26.11.2009. 2. This application is filed seeking an order that both the sentences to run concurrently. It is also prayed that sentence awarded in default, total of which comes to seven years, should be reduced to one year in both the cases and also prayed that sentence awarded in default should also be ordered to run concurrently. It is prayed that the applicant was not prime accused in the case. He was also not the kingpin. The present petitioner was employed by the person, who was main accused in this case. It is prayed that in Criminal Appeals No.436/2008 and 766/2008, Delhi High Court awarded a total sentence of five years and fine of Rs.1,00,000/- only, while, in the present case, in each case Rs.5,00,000/- of fine was awarded. This apart, there are various points raised on merit, which cannot be considered being beyond purview of section 482 CrPC. 3. The relevant facts are that the judgment passed in Sessions Trials No.108/05 and 109/05 by learned Special Judge, CBI District Indore was challenged in appeal before this Court and by common order passed in Criminal Appeals No.57/10, 58/10, 150/10 and 148/10, which all arose out of judgments passed in S.T. Nos.108/05 and 109/05 as aforesaid were disposed of by Co-ordinate Bench of this Court and the appeals were dismissed. Plea that sentences awarded in both the sessions trials should be ordered to run concurrently was not raised before the appellate Court and not dealt with by the Court. 4. Learned senior counsel appearing for the applicant placed reliance on Full Bench Judgment of this Court in the case of Shersingh v. State of M.P. [ 1989 JLJ 201 = 1989 CrLJ 632 ]. 4. Learned senior counsel appearing for the applicant placed reliance on Full Bench Judgment of this Court in the case of Shersingh v. State of M.P. [ 1989 JLJ 201 = 1989 CrLJ 632 ]. While dealing with the question, whether an order can be passed that sentences would run concurrently awarded in two difference cases on same accused using the inherent power under section 482 CrPC, when the powers under section 427(1) CrPC were not exercised by trial Court, revisional Court or appellate Court. The Court observed in para 5 of the judgment as under : 5. The consensus of judicial opinion of different High Courts seems to be that inherent powers of the High Court can be invoked under section 482 even if the trial Court or the appellate or revisional Court has not exercised its discretion under section 427(1) of the Code. The inherent powers of the High Court is not in any way fettered by the provisions of section 427(1) and it can be invoked at any stage even if there is no such order passed under section 427(1) by the trial Court or appellate or revisional Court and even though the conviction has become final ................................................................................................................... ........................................................................................ The Full Bench of the Delhi High Court has also held that the above-mentioned rulings of the other High Courts are also no longer good law in view of the decision of the Supreme Court in R. P. Kapur v. State of Punjab [ 1960 CrLJ 1239 (supra)], that inherent powers cannot be exercised in regard to the matters specifically provided under the Code i.e. when there is a specific provision under section 427 for making subsequent sentence concurrent with the earlier sentence, this power cannot be invoked under section 482. The Full Bench, however, opined that in suitable cases the Court is not precluded from treating a petition filed under section 482 of the Code as a petition filed under section 397 of the Code and grant necessary relief if so warranted by the exigencies and the facts of the case, thereby the Full Bench meant that though inherent powers cannot be invoked but the Courts can, by invoking its revisional power, pass suitable orders for making the subsequent sentence concurrent with the earlier sentence. The Full Bench overlooked that power under section 482 is much wider and is not subject to restrictions placed for invoking suo motu powers of revision under section 397. 5. Finally, in para 7 of the judgment, Full Bench of this Court observed as under : 7. The reference is, therefore, answered by saying (i) that the decision of this Court in A.S. Naidu v. State of M.P. [ 1975 CrLJ 498 (supra)], is no longer good law to the extent it says that power under section 427(1) of the Code can be exercised by the trial or appellate Court at any stage at any time even after decision on merits in the case but not under section 482 and the Court does not become functus officio. (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(1) of the Code. The case be now placed before the Single Bench for decision on merits. 6. So far as, merit of the case is concerned, this Court has no jurisdiction to enter into merit of the case, as the appeal has already been decided. Similarly, the sentence awarded against default in payment of fine can also not be modified by this Court using power under section 482 CrPC. The question, however, remains whether the substantive sentences awarded in each case can be ordered to run concurrently using the extraordinary jurisdiction granted to this Court under section 482 CrPC. According to the judgment passed by learned Special Judge, in each case, specifically the sentences were ordered to run concurrently. That means, that in each case, the substantive sentence shall be 10 years. Trial Court also considered the prayer of the defence that in both the cases, the sentence should be ordered to run concurrent. According to the judgment passed by learned Special Judge, in each case, specifically the sentences were ordered to run concurrently. That means, that in each case, the substantive sentence shall be 10 years. Trial Court also considered the prayer of the defence that in both the cases, the sentence should be ordered to run concurrent. In para 119 of Judgment passed in S.T. No.108/05 and in para 131 of judgment passed in S.T. No.109/05, the Court observed as under : ^^vfHk;qDrx.k bl izdj.k esa fopj.k nkSjku U;kf;d vfHkj{kk esa fujksf/kr jgs gSA muds fo:) vU; vkijkf/kd izdj.k Hkh yafcr jgs gSA bl izdj.k esa vfHk;qDrx.k ds fo:) vkt fu.kZ; ikfjr fd, tkus ds iwoZ gh mUgs vU; izdj.kksa esa yxHkx leku izdkj ds vijk/kks gsrq nks"kh fl} Bgjkdj dkjkokl dh ltk ls nafM+r fd, tkus dk vkns'k l{ke vkijkf/kd U;k;ky;ksa }kjk fn;k x;k gSA vfHk;qDrx.k ;k vfHk;kstu dh vksSj ls ;g nf'kZr ugha fd;k x;k gS fd vfHk;qDrx.k dks vkt ls igys ftl fdlh Hkh vkijkf/kd ekeysa es nks"kfl) Bgjkdj l{ke U;k;ky; us nafM+r fd, tkus ds vkns'k fn;k gS mlesa ls fdlh Hkh ekeysa ds vfHk;qDrx.k dks fdlh Hkh vijk/k ds fy, vkthou dkjkokl dh ltk ls nafM+r fd, tkus dk vkns'k fn;k x;k gSA ,slh n'kk esa /kkjk 427¼1½ naM+ izfØ;k ds izko/kkuksa ds varxZr ;g vknsf'kr fd;k tkrk gS fd vfHk;qDrx.k dks bl izdj.k esa fn, x, dkjkokl dh ltk,a mUgs iwoZ esa vU; izdj.kksa esa nks"kh fl} Bgjkdj fn, x, dkjkokl dh ltk dh vof/k ftls os nks"kh fl) O;fDr ds :i esa tsy esa fujksf/kr jgdj Hkqxr jgs gS] lekIr gksus ds ckn HkqxrkbZ tk,A^^ 7. It is apparent that after considering the provisions of section 427(1) CrPC, trial Court Judge ordered that sentence awarded in one case would start running after lapse of period of sentence awarded in earlier case. In another words, the Court ordered that sentences would run consecutively and not concurrently. Now, the question is, whether this Court using power under section 482 CrPC, can pass an order that such sentences should run concurrently. 8. After going through the principles laid down by Full Bench of this Court in case of Shersingh (supra), it is apparent that such power can be utilized only when powers were not utilized by trial Court, revisional Court or appellate Court. In the present case, there was specific finding by trial Court in both the judgments. 8. After going through the principles laid down by Full Bench of this Court in case of Shersingh (supra), it is apparent that such power can be utilized only when powers were not utilized by trial Court, revisional Court or appellate Court. In the present case, there was specific finding by trial Court in both the judgments. In appeal before this Court, the appeals were disposed of by a common order. The ground of ordering the sentence to run concurrently was not raised before the appellate Court. According to the principles laid down by this Court in case of Shersingh (supra), that powers can only be exercised when there was no order by trial Court, revisional Court or appellate Court does not apply on this case. However, in this case, trial Court passed specific order. It was duty of the applicant to challenge the same before appellate Court. He failed to do so, and therefore, now, it could not be done using power under section 482 CrPC. 9. No doubt, sentence awarded in event of default in payment of fine may be reduced in appropriate cases, as laid down in case of Shantilal v. State of M.P. [ 2008(1) JLJ 362 = (2007)11 SCC 243 ]. However, this could be done while hearing an appeal in exercise of powers under section 482 CrPC. This is not possible. 10. In considered opinion of this Court, this Court has no power to exercise jurisdiction under section 482 CrPC to pass the order sought by the applicant, and therefore, this application being devoid of any force, is liable to be dismissed and dismissed accordingly.