1. In Sessions Case No. 61 of 1982 on the file of the Court of the Asst. Sessions Judge, Cuddapah, for the offence under Sec. 397 IPC the accused was convicted thereunder and sentenced to undergo rigorous imprisonment for seven years. On appeal, the First Add I. Sessions Judge, Cuddapah, in Crl. Appeal No. 35 of 1983 by his judgment dated 23-5-1983 confirmed the conviction and sentence passed by the Asst. Sessions Judge. No revision has been filed in the Court against the said judgment and, therefore, it has become final.
2. In another case S.C No. 68 of 1981 on the file of the Court of the Asst. Sessions Judge, Penukonda, Anantapur District, the petitioner-accused was convicted under Sec. 395 IPC along with others and was sentenced to undergo rigorous imprisonment for three years. On appeal, the Addl. Sessions Judge, Anantapur, in Crl. Appeal No. 157 of 1981, confirmed the conviction under Sec. 395 IPC, but reduced the sentence to two years rigorous imprisonment. Against that judgment also, no revision has been filed and that judgment also has become final. While the petitioner was undergoing the sentence, he filed the present petition under Sec. 482 Cr. P.C to direct the sentence imposed on the petitioner in S.C No. 61 of 1982 on the file of the Asst. Sessions Judge, Cuddapah, and in S.C No. 68 of 1981 on the file of the Asst. Sessions Judge, Penukonda, to run concurrently.
3. One matter relates to Cuddapah Sessions Division and another matter relates to Anantapur Sessions Division Smt. Sesharajyam contended that this court, on prior occasions, while exercising the revisional powers under Secs. 397 or 401 Cr. P.C ordered the sentence to run concurrently, in cases where the sentences have been passed by different Asst. Sessions Judges of different Sessions Divisions.
4. In support of this contention, Smt. Sesharajyam has relied upon a judgment of this court in Anakapalli Satyam v. State of A.P (1) 1978 (2) An. W.R p. 451. It is a case where the sentences were imposed by the same court, but in different cases. Therefore, the accused sent a petition under Sec. 482 Cr. P.C through jail seeking the intervention of the court to order that the sentences shall run concurrently.
5. In another case reported in Mullapudi Venkanna v. State of A.P (2) AIR 1964 AP 449 where the sentences have been passed by two different Asst. Sessions Judges, the High Court allowed the petition.
6. The learned Public Prosecutor, on the other hand, contended that the conviction and sentences that have been passed by the Asst. Sessions Judges have become final and this Court either under Sec. 482 Cr. P.C or under Sec. 401 Cr. P.C has no right to quash or revise the said orders as no matter was pending before this court against the said orders. It is also contended that there is no illegality or irregularity or for that matter any other circumstances that have been brought out, to revise the orders that have been passed by the two Asst. Sessions Judges of different Sessions Divisions, while confirming the convictions and also the sentences with modification passed by the Asst. Sessions Judges under their control. The learned Public Prosecutor has cited the following decisions: Mulaim Singh v. State (1) 1974 Cr. L.J 1397 Gopal Dass v. The State (2) AIR 1978 Delhi 138 and State of Orissa v. Ramchander Agarwala (3) (1979) 2 SCC 305 : AIR 1979 SC 87.
7. I feel this is a fit case where it has to be referred, to a Division Bench and the Bench has to consider as to:
(i) Whether this Court is competent to order the sentences to run concurrently when the convictions and sentences that have been passed by the two Addl. Sessions Judges of different Sessions Divisions have become final:
(ii) Whether under the revisional jurisdiction, when no matter (appeal or revision) is pending before this court, this court is justified in invoking the powers under Secs. 401 or 482 Cr. P.C and direct the sentences to run concurrently;
(iii) When the convictions and sentences that have been passed by the Asst. Sessions Judges (are) different Sessions Divisions, one Sessions Judge can direct that the Sentences awarded by him to an accused before him shall run concurrently with the sentences awarded by the other Sessions Judge; and
(iv) Whether there has to be differential treatment in the case of an ordinary criminal or a dacoit with regard to the direction that has been given for the sentences to run concurrently in view of the provisions contained in Sec. 400 I.P.C
8. The papers may, therefore, be placed before My Lord, the Chief Justice, for orders as to posting the case before a Division Bench.
9. Pursuant to the Orders of the High Court Dt/6-3-1987 and upon hearing the arguments of Mr. C. Obulapathi Chowdary Advocate for the petitioner and of the Public Prosecutor on behalf of the respondent.
The Order of the Court was delivered by
K. Jayachandra Reddy, J.:— The offences against the property are dealt with in Chapter XVII of the Indian Penal Code, of them the offence of Robbery and Dacoity are aggravated offences and severe sentences are also prescribed. Some of the professional dacoits are getting involved in number of incidents and are being tried invariably in different Courts and are being sentenced to various terms of imprisonment depending upon the facts of each case. It is also common feature that in such cases, a convicted dacoit undergoing the sentences of imprisonment awarded in one case, is again convicted for similar offence in a different case by a different Court. Section 427 of the Code of Criminal Procedure lays down that when a person already undergoing a sentence of imprisonment, is sentenced on a subsequent conviction to imprisonment of 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. Not in frequently applications under Section 482 of the Code of the Criminal Procedure are sent, through Jail to this Court with the prayer that this Court should exercise its inherent power and direct that the two sentences shall run concurrently.
11. The learned Public Prosecutor, having regard to the nature of the offences and the frequent occurrence of such offences, has argued before Radhakrishha Rao, J., who was hearing this case sitting single, that this Court should generally not exercise the inherent power under Section 482 Cr. P.C in such cases, and it was also to some extent contended that such applications under Sec. 482 Cr. P.C filed by the professional dacoits should not be entertained. The learned Public Prosecutor placed considerable reliance on the judgment of the Full Bench of the Delhi High Court reported in Gopal Das v. State (1) AIR 1978 Delhi 138 and also on certain observations made by the Full Bench of the Allahabad High Court reported in Mulaim Singh v. State (2) 1974 (2) Crl L.J 1397 The learned single Judge, after hearing the argument on both sides felt that the question is of some importance and therefore is to be decided by a Division Bench. That is how this case has come up before us.
12. The principal question that arises for consideration is “Whether the High Court in exercise of its powers under section 401 and 482 of the Code of Criminal Procedure, is competent to order the sentences to run concurrently when the convictions and sentences that have been passed by the two Criminal Courts of different Sessions Divisions have become final?”
13. Incidentally we have to decide the scope of Section 427 of the Code of Criminal Procedure also and consider when the convictions and sentences have been passed by the Sessions Judges of different Sessions Divisions whether one Sessions Judge can direct that the sentence awarded by him to an accused before him shall run concurrently, with the sentence awarded by the other Sessions Judge and whether the case of a decoit has to be treated differently from the case of an ordinary criminal with regard to the direction that may be given for the sentences to run concurrently.
14. Section 482 of the Code of Criminal Procedure, 1973 is in the same language as Section 561-A of the old Code. The High Court is vested with the power to give, effect to any order of any of the lower Courts over which it has over-all jurisdiction with a view to prevent abuse of process of any such Court, or otherwise to secure the ends of justice. This is an extraordinary power conferred on the High Court and it is laid down that it ought to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or to secure the ends of justice. In exercising this power, the High Court has to be careful to see that its decision is based on sound general principles of criminal jurisprudence and is not in conflict with them or with the intention of the Legislature. Apart from this power, the High Court has also its revisional powers under section 397 read with 401 Cr. P.C section 397 Cr. P.C lays down that the High Court or any Sessions Judge, may call for and examine the record of any proceedings before any inferior Criminal Court situate within, its local jurisdiction for the purpose of satisfying itself as to the correctness legality or propriety of any finding sentence of order, recorded or passed and as to the regularity of any such proceedings, and in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 or on a Court of Sessions by Section 307.
15. The learned counsel for the petitioner submits that the High Court, in exercise of its revisional power or in exercise of its inherent power, can direct the subsequent sentence to run concurrently with the previous sentence already being served by a person who is convicted. The learned Public Prosecutor on the other hand, submits, that in the absence of any appeal or revision by the convicted person, the High Court should not exercise its inherent power and direct the sentence to run concurrently as provided under section 427 Cr. P.C It is also submitted that, when the aggrieved accused has not preferred any revision, then the question of exercising the suo motu power, by the High Court also does not arise.
16. At the outset we must point that there is no period of limitation to exercise the suomotu power by the High Court under its revisional jurisdiction as provided under section 397 Cr. P.C The High Court for the purpose of satisfying itself as to the correctness legality or propriety of any finding, sentence or order, can call for the records and exercise any of the powers conferred on the Court of appeal. There cannot be any dispute that when an accused prefers an appeal questioning his conviction and sentence, he may also alternatively ask the Appellate Court to direct the sentence to run concurrently as provided under sec. 427 Cr. P.C If that be so, we are unable to see as to how the High Court is precluded from exercising its revisional jurisdiction to direct the sentences to run concurrently as provided under section 427 Cr. P.C The exercise of revisional power can be suo motu or on an application filed by the convicted person. May be in a given case the convicted accused may not prefer revision, but when he files an application under Section 482 Cr. P.C and when it comes to the knowledge of the High Court and the High Court wants to satisfy itself about the propriety of the sentence passed, it can call for the records and exercise the power of the appellate Court and direct, if necessary, that the sentence should run concurrently as provided under section 427 Cr. P.C Similarly, the High Court can also exercise its power under Section 482 Cr. P.C The question whether there is such a power or not is different from the manner of exercise of the same. It is always left to the discretion of the Court either to exercise its power or not, and in doing so, the facts and circumstances in each case assume importance. We have not come across any decision which goes to the extent of laying down that the High Court, cannot exercise its power under section 397 read with 401 Cr. P.C or under Section 482 Cr. P.C to direct the sentence to run concurrently under section 427 Cr. P.C if the facts and circumstances warrant.
17. We shall now refer to some of the decided cases which threw some light on the point. In Sitaraman v. Pattabhiraman (3) AIR 1958 Madras 453 the learned single Judge held that where the petitioner has exhausted all the remedies available to him under law and sentences have already been passed against him, there is no power in the High Court to review the Orders passed by the trial Court. There is no reference to any of the provisions of law and there is no discussion in this case.
18. In Venkanna v. State of A.P (4) A.I.R 1964 A.P 449 Mohammed Mirza, J., referred to the judgment of the Madras High Court and disagreed with the view taken therein. He also referred to the judgment of the Patna High Court. He agreed with the view taken by the Patna High court reported in Baijath v. State (5) A.I.R 1961 Patna, 138 where it was held that a petition seeking a direction that the sentence should be ordered to run concurrently does not raise any question either of altering or reviewing the Judgment of the High Court and overriding the specific provisions of section 369 Cr. P.C and the order passed under Section 561-A would be a separate order. The learned Judge in other words, held that the High Court can exercise its inherent power and direct the sentences to run concurrently. In A. Satvam v. State of A.P (6) (1978) II An. W.R 451 Sambasiva Rao, J., referred to the judgment of Mohammed Mirza, J., reported in Venkanna v. State of A.P (supra) and also the judgment of the Madhya Pradesh High court reported in A.S Naidu v. State of M.P (7) 1975 Crl. L.J 498 and held that the High court, can exercise its power under Sec. 397 Cr. P.C which is an independent power and direct the sentence to run concurrently. The learned Judge, however, pointed out that even after the appeals or revisions preferred by the convict against his conviction in the said trials have been dismissed, the High Court can exercise its independent power under Sub-section (1) of Section 397. The learned Judge did not go to the extent of laying down that the inherent power cannot be exercised at all. He simply observed that it may not be necessary to lay down a principle when there is a specific provisions under section 397 Cr. P.C A full Bench of the Allahabad High Court in Mulaim Singh v. State (8) 1974 (2) Crl. L.J 1397 also held that the Court is vested with a discretion to direct that the sentence under the subsequent conviction shall run concurrently with the previous sentence and the same can be exercised at the stage when the Court records the subsequent conviction. The Full Bench also held that the High Court is competent under Section 561-A to direct that the sentence of imprisonment under a subsequent conviction shall run concurrently with a previous sentence. They however, observed that the inherent, power is to be exercised to do the right and to undo a wrong in the course of administration of justice. A Division Bench of the Madhya Pradesh High Court in A.S Naidu v. State of M.P (Supra) observed that the High court can exercise its discretion under sub-section (1) of Sec. 397 and direct the sentence awarded in a subsequent trial to run concurrently with the sentence awarded in a previous trial and such power can be exercised even after the disposal of the case on merits and the same does not amount to review of the Judgment. In Mahesh v. State (9) 1971 Cr. L.J 1674 a Full Bench, after review of judicial decisions on the point held that the inherent power is to be exercised in exceptional circumstances and the same is not meant to reassess the evidence and has to be exercised to secure the ends of justice. In Baijanath v. State (Supra) it has been held that a petition under Section 561-A seeking a direction to direct the sentence to run concurrently does not raise any question either of altering of reviewing the judgment and therefore, such a petition can be entertained. Therefore, almost all the High Courts have taken the view that an application is maintainable under Section 482 Cr. P.C seeking the High Court to exercise its inherent power and give the necessary directions as provided under section 427 Cr. P.C We are also of the view that the High Court suo motu, while exercising its jurisdiction under Section 397 read with Sec. 401 Cr. P.C can also give the same directions as provided under section 427 Cr. P.C in appropriate cases.
19. The learned Public Prosecutor however laid considerable reliance on the judgment of the Delhi High Court reported in Gopal Das v. State (supra) wherein it was held that the view taken by the Andhra Pradesh High Court Calcutta High Court, Patna High Court as well as the Allahabad High Court is not good law in view of the decisions reported in R.P Kapur v. State Of Punjab. (10) AIR 1960 Supreme Court 866 and Palniappa Gounder v. State of T.N (11) (1977) 2 SCC 634 : AIR 1977 Supreme Court 1323 We have carefully gone through the judgment of the Full Bench of the Delhi High Court and we are unable to see as to how the view taken by the A.P High Court and the other High Courts can be said to be not good law. In R.P Kapur v. State Of Punjab. (supra) which is popularly called ‘Kapur's case’ the inherent power of the High court as provided under section 561-A was considered and their Lordships held that the inherent jurisdiction of the High Court can be exercised to quash proceedings only in appropriate cases. The Principles laid down therein mainly apply to the exercise of the inherent jurisdiction to quash the the proceedings. Their Lordships did not go to the extent of laying down that the inherent power cannot be exercised stall. In Palaniappa Gounder v. State of T.N (supra) the Supreme Court held that an application under Section 482 Cr. P.C by the heirs of the deceased seeking compensation cannot be entertained since there is an express provision under section 357 conferring power on the court to pass an order for payment of compensation. We are unable to see as to how the principle laid down by the Supreme Court in this case prevents the High Court from exercising the inherent power when an application is made under Section 482 Cr. P.C seeking the court to give direction as provided under section 427 Cr. P.C The learned Public Prosecutor no doubt submits that when there is a specific power under section 427 Cr. P.C and when the lower court has not exercised the same for some reason or the other, then it is not open for the convict to come forward with an application under Sec. 482 Cr. P.C We see no force in this submission. It must be remembered that section 427 Cr. P.C provides for directing the sentence awarded in the subsequent case to run concurrently with the previous sentence. It may be that the subsequent convicting Court was not apprised about the existence of the previous sentence. At any rate ordering of sentence to run concurrently does not amount to altering the finding. It may be noted that Sec. 31 Cr. P.C provides for ordering the sentences to run concurrently in a given case. Likewise, under section 427 Cr. P.C while awarding a sentence in a subsequent case in respect of the person who is already undergoing sentence in a previous case, a discretion is given to the subsequent convicting Court to give such a direction and order the sentence to run concurrently, with the previous sentence. As laid down in the above decisions, even after such a sentence has become final nothing prevents the High Court to exercise its suo motu revisional jurisdiction or entertain an application under Section 482 Cr. P.C and give the necessary directions as provided under section 427 Cr. P.C
20. The learned Public Prosecutor however, relied on certain passages in the judgment of the Full Bench of the Allahabad High Court reported in Mulaim Singh v. State (Supra), wherein it was observed:
“The discretion to make the sentence in subsequent conviction run concurrently with the previous sentence must be based on some sound principle and is not meant to the exercised in an arbitrary manner. It would be proper exercise of discretion to make the sentence on a subsequent conviction to run concurrently with the previous sentence where separate trials are held for offence whish while constituting distinct offences, are inherently or intimately connected with each other. A person employed to realise money for his master from persons who owe it to him in connection with business dealings may misappropriate money realised from some debtors during the course of a certain period and may be tried separately for each item of money misappropriated and may subsequently be sentenced to separate terms of imprisonment. It would be proper exercise of discretion to make the sentence run concurrently in the exercise of the discretion conferred by Sec. 397(1) Cr. P.C and if that stage is over, by the High Court under Sec. 561-A of the Code. A person may be put up for trial for offences punishable under section 399/522, IPC. He may be separately tried for an offence punishable under Sec 25. Arms Act in respect of a weapon recovered from his possession at the time of his arrest. It would be a proper exercise of discretion if the sentence on subsequent conviction is made to run concurrently with the previous sentence. There may be a cause where although it is brought to the notice of the Court holding the subsequent trial or to the appellate Court hearing appeal from the subsequent conviction that the accused was already undergoing a sentence of imprisonment as a result of his conviction in an earlier criminal trial but due to an oversight the court omits to exercise its discretion of making the sentence on subsequent conviction run concurrently with the previous sentence, it, would be a fit case for exercise of the inherent power of the court under section 561-A of the Code to make the two sentences run concurrently on the principle that the accused should not be made to suffer on account of the omission of the Court to apply its mind to the discretionary power vested in its mind to the discretionary power vested in it under the Code. If the fact of the previous conviction and sentence is brought to the notice of the court dealing with subsequent trial, whether as an original court or as the appellate court it is the duty of the court dealing with the subsequent trial to apply its mind to the question whether the sentence on subsequent conviction should be made concurrent with the previous sentence and if the court for one reason or the other fails to apply its mind to that question it should be in the interests of justice that the High Court rectifies that mistake under its inherent power. In such a situation the court would not be acting contrary to any provisions of the Code or against any express of implied prohibition contained in it.”
21. It can be seen that the Allahabad High Court was only laying down certain guidelines and we respectfully agree with these observations. But we are unable to accede to the contention that an application under Section 482 Cr. P.C seeking directions under Sec. 427 Cr. P.C cannot lie at all. The High Court, while exercising its revisional jurisdiction suo motu or in exercise of its inherent power under Sec. 482, can direct the sentence to run concurrently as provided under section 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. This leads us to the question whether any interference is called for in the instant case. As pointed out by the Full Bench of the Allahabad High Court, this power should be exercised sparingly and not in any arbitrary manner, and the nature of the offence has also to be taken into consideration. It is needless to say that in the case of professional decoits the Court has to exercise its extraordinary power sparingly with circumspection and in rare cases and that too to correct patent illegalities and to secure the ends of justice. In the instant case, the petitioner is convicted for the offence of dacoity in both the cases. Having regard to the nature of the offence, we do not think that this is a fit case where we should exercise our inherent power or suo motu revisional power in favour of the petitioner.
22. The petition is, therefore, dismissed.