Baijnath Kurmi And Another v. The State Opposite Party.

1. This is an application, under Section 397(1) of the Cr PC, hereinafter referred to as “the Code”, by Baijnath Kurmi and Nagina Dusadh, praying that their sentences of seven years' rigorous imprisonment passed separately at two separate trials, be made to run concurrently. This application arises in the following circumstances: As a result of a search on the 18th November, 1957, these petitioners, along with others, with whom we are not concerned here, were put on trial at two separate trials.

2. The first trial, which was for offences under sections 399 and 402 of the Indian Penal Code, was held by the Assistant Sessions Judge, Arrah, who convicted these two petitioners on the 22nd January, 1959, under both the sections and passed a sentence of seven years' rigorous imprisonment on each of them under section 399 of the Indian Penal Code, but passed no separate sentence under section 402 of the Indian Penal Code.

3. The second trial was held by die. Assistant Sessions Judge, Sasaram, at which these two petitioners were put on trial for offences under sections 19(f) and 20 of the Arms Act. At this second trial, the petitioners were convicted on the 23rd February, 1959, under both the above sections, but they were sentenced to seven years' rigorous imprisonment each only under section 20 of the Arms Act. This subsequent sentence, not having been made to run concurrently with the previous sentence, under section 397(1) of the Code, the two sentences, of seven years' rigorous imprisonment, having been passed at two separate trials, are to run one after the other.

4. An appeal against the second conviction under the Arms Act was brought to this court, but, it was summarily dismissed by me on the 19th May 1959.

5. An appeal against the first conviction was also brought to this Court, and, it was dismissed by S.N.P Singh, J., on the 14th July 1960.

6. Before S.N.P Singh, J., an oral application was made praying that the two sentences may be made to run concurrendy under section 397(1) of the Code, but his Lordship observed that he would have allowed the prayer, but there was one legal difficulty, in as much as, the appeal before him was against the previous conviction, and, therefore, he could not direct the previous sentence to run concurrently with the subsequent; sentence, passed in the Arms Act case, which was subsequently and separately tried.

7. Thereafter the present application was made by the petitioners in Criminal Appeal 251 of 1959, which had been summarily dismissed by me and which arose out of the second conviction.

8. On the matter being put up before S.N.P Singh, J., his Lordship ordered the matter to be placed before me, and, consequently, it has now come up before me for consideration.

9. Mr. Keshari Singh, appearing for the petitioners, submitted, in the first place, that Section 397(1) applied here, and, in the second place, alternatively, that if section 397(1) did not apply, then, in that view alone, this Court, having inherent jurisdiction, under section 561A of the Code, to make the order asked for, should, in the circumstances, direct the subsequent sentence to run concurrently with the previous sentence. In support of his contention, he relied on a Bench decision of the Calcutta High Court in Jainta Kumar Banerjee v. The State, AIR 1955 Cal 632.

10. In this case, I directed a notice to be issued to the Advocate-General to appear, as no one was appearing on the 23rd August, 1960, when the matter was put up before me. In pursuance of that notice, Mr. B.D Singh, Additional Standing Counsel, has appeared to assist the Court. The contention put forward by him, in reply, was (i) that, in view of section 369 of the Code, this Court has no jurisdiction to pass the order prayed for, in that, that would amount to altering the judgment of his Court; (ii) that, on the facts of the present case, inherent powers of this Court under section 561A, also could not be exercised by this Court. He relied, in support of this contention, on a decision of Basheer Ahmed Syeed, J., sitting singly, of the Madras High Court, in In re, Nachimuthu, AIR 1958 Mad 452, and, brought to my notice, on this question, two decisions of the Supreme Court in Khushi Ram v. Hashim, AIR 1959 SC 542 and R.P Kapur v. State Of Punjab., AIR 1960 SC 866 and a Bench decision of this Court in Tirbeni Kahar… v. State Of Bihar…Opposite Party., AIR 1960 Pat 181, and, (iii) that, as in this case there is a specific provision in section 397(1) of the Code. Section 561-A cannot apply. In support of his contention, he relied on a Bench decision of the Bombay High Court in Nagappa Vyankappa v. Emperor, AIR 1931 Bom 529 (1).

11. Mr. Keshari Singh met the above argument by contending that Section 561-A of the Code was not limited or governed by Section 369, and, therefore, the powers of the High Court under section 561A were unfettered, and, if it is found that section 397(1) of the Code does not apply to the facts of the case, then this Court should to prevent the abuse of the process of the court or otherwise to secure the ends of justice, pass the order asked for under section 561A of the Code.

12. In support of his contention, he relied on a decision of Broadway, J., sitting singly, of the Lahore High Court in Mathra Das v. Emperor, AIR 1927 Lah 139, and, on a decision of Nanavutty, J., sitting singly, of the Oudh Chief Court, in Emperor v. Shiva Dutta, AIR 1928 Oudh 402.

13. On the arguments presented by learned counsel for the parties therefore, the first question, that arises for determination, is, whether S. 397(1) applies here?

14. Section 397(1), omitting the unnecessary portion, is to the following effect:

“397(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.

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15. The general rule is that a sentence commences to run from the time of its being passed, and this Section 397 creates an exception in the case of persons already undergoing imprisonment and postpones the operation of the subsequent sentence until after the expiry of the previous sentence. A person is said to be undergoing an imprisonment the moment the sentence of imprisonment is passed, though he has not yet been sent to Jail. The fact that he is on bail is immaterial. Consequently, where at the time of passing a second sentence, the accused is undergoing imprisonment, and, the order does not make the second sentence to run concurrently, the sentences will be treated as consecutive.

16. The meaning of S. 397(1) is that sentences will take effect in the order in which they are passed. The sentence which is first passed and which the accused is undergoing must be given effect to first, and, any subsequent sentence passed upon the accused must follow after the expiration of the first sentence. Section 397(1), however, gives a discretion to the court to direct that the subsequent sentence shall run concurrently with the previous sentence. Under this section the High Court also, in its appellate jurisdiction, has power to direct separate sentences of separate trials to run concurrently.

17. The crux of the matter, however, is, can this Court, after it has summarily dismissed the appeal against the second conviction, pass an order contemplated by section 397(1) of the Code? The answer must be in the negative.

18. Section 397(1) enacts the rule when a person already undergoing a sentence of imprisonment is sentenced to imprisonment subsequently. Under section 397 sentences passed under separate trials or in the same trial on separate charges are not deemed to be concurrent unless the court directs that the subsequent sentence shall run concurrently with the previous sentence.

19. It is obvious, therefore, that it is only at the subsequent trial, when the person convicted is already undergoing a sentence of imprisonment under a prior trial, that the subsequent sentence can be directed to run concurrently with the previous sentence. In the instant case, at the subsequent conviction, no order contemplated by section 397(1) was passed by the learned Judge holding the second trial. There is no dispute that this power under section 397(1) can be exercised also at the appellate stage by the court of appeal.

20. It was held in AIR 1931 Bom 529 (1), by a Division Bench of the Bombay High Court that the High Court has power under section 397 of the Code to direct separate sentences of separate trials to run concurrently. In the present case, however, that stage has also passed, in as much as, the appeal against the subsequent conviction has already been dismissed summarily. For these reasons, it is plain, and I hold accordingly, that section 397(1) of the Code does not apply to the present case, as the stage for passing an order under S. 397(1) by the trial Judge or by this Court on appeal on second conviction, has both long passed.

21. The next question, which then arises, is: Can the High Court exercise its inherent powers under section 561A of the Code?

22. Section 561-A is to the following effect:—

“561A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

23. Ordinarily, every Court, whether Civil or Criminal, in the absence of express provision in the Code for that purpose, must be deemed to possess, as inherent in its constitution, all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. This is based on the principle, embodied in the maxim quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest, which means that when the law gives a person anything, it gives him that, without which, it cannot exist. Whenever anything is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms be also done, then that something else will be supplied by necessary intendment. It cannot, therefore, be said that Courts have no power to do justice or redress a wrong merely because no express provision of the Code can be found to meet the requirements of a case.

24. All that section 561A does is to declare that such inherent powers as the High Court may possess have not been taken away or abridged by any of the provisions of the Code. It does not confer any new powers, but merely declares that such inherent powers as the Court may possess shall not be deemed to be limited or affected by anything contained in the Code. It preserves the inherent powers of the High Court without conferring any additional powers. But the power to be exercised under this section is in its nature extraordinary, and ought not to be exercised capriciously or arbitrarily, but is to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. Section 561-A, therefore, cannot be invoked to override an express provision of law or when there is another remedy available.

25. What is the true scope and effect of section 561A of the Code have now been authoritatively laid down by the Supreme Court in two cases, namely, AIR 1959 SC 542 and AIR 1900 SC 866. It is now, therefore, firmly established, that the inherent power of the High Court under section 561A of the Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Code, in other words, it cannot be invoked in regard to matters which are directly covered by the specific provisions of the Code, but it can be exercised only when there is no specific provision in the Code itself; the inherent jurisdiction of the High Court can be exercised in a proper case either to prevent the abuse of the process of any court, or, otherwise to secure the ends of justice.

26. In the present case, it is not disputed that, except section 397(1) of the Code, there is no other provision in the Code which would apply to the facts of the present case.

27. A Division Bench of this Court in AIR 1960 Pat 131 has also held that the High Court has ample power to interfere in any case in order to prevent abuse of the process of any court or to secure the ends of justice, and, in that case, it was observed that if the commitment was allowed to stand in that case, where there is no evidence at all to justify it, it will surely mean an abuse of the process of the Court, and, therefore, the commitment was quashed. In this view of the matter, in my opinion, the instant case is a fit case in which this Court should exercise its inherent jurisdiction under section 561-A of the Code to secure the ends of justice.

28. It was, however, argued by the learned Additional Standing Counsel that, in view of section 369 of the Code, this Court cannot exercise its inherent powers under section 561A, because to do so would tantamount to altering the judgment of this Court.

29. Section 369 is to the following effect:—

“369. Save as otherwise provided by this Code or by any other law for the time being in force or in the case of a High Court by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error.”

30. It is universal principle of law that, when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. The judgment of a Criminal Court is final, as far as that Court is concerned; and, on signing and pronouncing it, such Court becomes functus officio, and has, therefore, no power to review, override, alter or interfere with the judgment in any manner except in the two cases postulated by S. 369.

31. There is, however, no conflict between S. 561-A and S. 369. Section 369 does not affect any powers inherent in the Court, as there never has been an inherent power in the High Court to alter or review its own judgment in a criminal case once it has been pronounced and signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits. Consequently, it cannot be said that S. 561-A either modifies the provisions of S. 369 or clothes the High Court with any fresh powers.

32. An order made by a Court under S. 397(1) as to the commencement of the sentence need not be a part of its judgment, and may, therefore, be made by the Court passing the subsequent sentence after the judgment is signed.

33. An order passed under S. 561-A also would not be a part of the judgment of the Court, but it would be a separate order, which can, therefore, be passed after the judgment is signed.

34. In the present case, there is no question of either altering or reviewing the judgment of this Court. The judgment will stand as it is; and, the order passed under S. 561-A would be a separate order and complete by itself.

35. It was held in AIR 1927 Lah 139, by Broadway, J., sitting singly, that S. 561-A is in no way limited or governed by S. 369 and the High Court has power to reconsider the question of sentence when the ends of justice required it. Here, there is no question of S. 561-A overriding the specific provision of S. 369.

36. A similar view was also taken by Nanavutty, J., sitting singly, of the Qudh Chief Court in AIR 1928 Qudh 402, in which the just-mentioned Lahore decision was relied upon.

37. For these reasons, in my opinion, S. 369 of the Code is no bar to the exercise of its inherent jurisdiction by this Court under S. 561-A of the Code, if, of course, otherwise, it is satisfied that it should do so.

38. I may now refer to a decision of the Madras High Court in AIR 1958 Mad 452. In that case, Basheer Ahmed Syeed, J., sitting singly, held that when all the remedies available under the law are exhausted, an application to the High Court asking the sentence passed in four different cases to be made to run concurrently, is not maintainable, because such a petition is in effect for a review of the orders already passed by the trial court as well as by the appellate Court. If I may say so with respect, his Lordship did not take into consideration S. 561-A, which provides specifically for such a case. I, therefore, respectfully express my dissent to the view taken in that case.

39. A Division Bench of the Calcutta High Court, however, in AIR 1955 Cal 632, in similar circumstances, held that the High Court has power to order that the sentences passed on different dates in respect of different convictions of the accused by courts other than the High Court, should run concurrently. I express my cordial assent to the view taken by the Calcutta High Court, and, in my opinion, it represents the correct view of the law.

40. The present case, in my opinion, is a fit case in which the inherent powers of this Court under S. 561-A of the Code should be exercised in favour of the petitioners. No order under section 397(1) having been passed either by the trying Judge or by this Court on appeal from the second conviction, it is clear that the petitioners have no other remedy in law. The result of not allowing the prayer of the petitioners would be that each of them would suffer fourteen years' imprisonment. The facts and circumstances of this case are so coercive that ends of justice require that the prayer made should be allowed in order to secure the ends of justice. I would, accordingly, allow the application and pass an order under S. 561-A of the Code directing the subsequent sentence of seven years' rigorous imprisonment, passed on these two petitioners at the second trial in the Arms Act case, to run concurrently with the previous sentence of seven years' rigorous imprisonment, passed on these two petitioners at the first trial under S. 399 of the Indian Penal Code.

LD/V.B.B

41. Application allowed.