Andhra High Court
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
Author: K J Reddy Bench: K J Reddy, S S Quadr JUDGMENT K. Jayachandra Reddy, J.
1. The offences against the property are dealt with in Chap. XVII, Penal Code, of them the offences 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, Cr.P.C. lays down that 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. Not infrequently, applications under S. 482, Cr.P.C. 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.
2. The learned Public Prosecutor, having regard to the nature of the offence and the frequent occurrence of such offences, has argued before Radhakrishna Rao, J., who was hearing this case sitting single, that this Court should generally not exercise the inherent power under S. 482, Cr.P.C. in such cases, and it was also to some extent contended that such applications under S. 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, 1978 Delhi 138 : (1978 Cri LJ 961) and also on certain observations made by the Full Bench of the Allahabad High Court reported in Mulain Singh v. State, 1974 Cri LJ 1397. The learned single Judge, after hearing the arguments 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.
3. The principle question that arise for consideration is "Whether the High Court in exercise of its powers under S. 401 or 482, Cr.P.C. 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 ?"
4. Incidentally we have to decide the scope of S. 427, Cr.P.C. 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 dacoit 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.
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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5. Section 482, Cr.P.C., 1973 is in the same language as S. 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 overall 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 circumstances 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 Legislative. Apart from this power, the High Court has also its revisional powers under S. 397 read with 401, Cr.P.C. Section 397, Cr.P.C., lays down that the High Court or any Session 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 or 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 Session by S. 307.
6. 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 S. 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.
7. At the outset we must point that that there is no period of limitation to exercise the suo motu power by the High Court under its revisional jurisdiction as provided under S. 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 S. 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 S. 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 S. 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 S. 427, Cr.P.C. Similarly, the High Court can also exercise its power under S. 48Z 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 S. 397 read with S. 401, Cr.P.C. or under S. 482, Cr.P.C. to direct the sentence to run concurrently under S. 427, Cr.P.C. if the facts and
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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circumstances warrant.
8. We shall now refer to some of the decided cases which throw some light on the point. In Sitaraman v. Pattabhiraman, AIR 1958 Mad 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. In Venkanna v. State of A.P., Mohamed 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 Baijnath v. State, 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 S. 369, Cr.P.C. and the order passed under S. 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. Satyam v. State of A.P., (1978) 2 Andh WR 451 : (1978 Cri LJ NOC 2 & 3) Sambasiva Rao, J., referred to the judgment of Mohamed 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 Madhya Pradesh, 1975 Cri LJ 498 and held that the High Court can exercise its power under S. 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 S. 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 provision under S. 397, Cr.P.C. A Full Bench of the Allahabad High Court in Mulaim Singh v. State, 1974 Cri LJ 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 S. 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 S. 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, 1971 Cri LJ 1674 (All) 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 Baijnath v. State (1961 (1) Cri LJ 423) (supra) it has been held that a petition under S. 561A seeking a direction to direct the sentence to run concurrently does not raise any question either of altering or 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 S. 482, Cr.P.C. seeking the High Court to exercise its inherent power and give the necessary directions as provided under S. 427, Cr.P.C. We are also of
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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the view that the High Court, suo motu, while exercising its jurisdiction under S. 397 read with S. 401, Cr.P.C. can also give the same directions as provided under S. 427, Cr.P.C. in appropriate cases.
9. The learned Public Prosecutor, however, laid considerable reliance on the judgment of the Delhi High Court reported in Gopal Das v. State (1978 Cri LJ 961) (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, and Palaniappa Gounder v. State of T.N., . 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 S. 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 proceedings. Their Lordships did not go to the extent of laying down that the inherent power cannot be exercised at all. In Palaniappa Gounder v. State of T.N. (supra) the Supreme Court held that an application under S. 482, Cr.P.C. by the heirs of the deceased seeking compensation cannot be entertained since there is an express provision under S. 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 S. 482, Cr.P.C. seeking the court to give direction as provided under S. 427, Cr.P.C. The learned Public Prosecutor no doubt submits that when there is a specific power under S. 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 S. 482, Cr.P.C. We see no force in this submission. It must be remembered that S. 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 S. 31, Cr.P.C., provides for ordering the sentences to run concurrently in a given case. Likewise, under S. 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 or-der 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 S. 482, Cr.P.C. and give the necessary directions as provided under S. 427, Cr.P.C.
10. The learned Public Prosecutor, however, relied on certain passages in the judgment of the Full Bench of the Allahabad High Court reported in Mulain Singh v. State, (1974 Cri LJ 1397) (supra), wherein it was observed :
"The discretion to make the sentence on subsequent conviction run concurrently with the previous sentence must be based on some sound principle and is not meant to be exercised in an arbitrary manner. It would be proper exercise of discretion to make the sentence on a subsequent conviction
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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to run concurrently with the previous sentence where separate trials are held for offence which 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 S. 397(1), Cr.P.C., and if that stage is over, by the High Court under S. 561A of the Code. A person may be put up for trial for offences punishable under S. 399/522, I.P.C. He may be separately tried for an offence punishable under S. 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 S. 561A 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 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 or implied prohibition contained in it."
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 S. 482, Cr.P.C., seeking directions under S. 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 S. 482, can direct the sentence 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.
11. 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 an 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 dacoits 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
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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petitioners.
12. The petition is, therefore, dismissed.
13. Petition dismissed.
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
Author: K J Reddy Bench: K J Reddy, S S Quadr JUDGMENT K. Jayachandra Reddy, J.
1. The offences against the property are dealt with in Chap. XVII, Penal Code, of them the offences 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, Cr.P.C. lays down that 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. Not infrequently, applications under S. 482, Cr.P.C. 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.
2. The learned Public Prosecutor, having regard to the nature of the offence and the frequent occurrence of such offences, has argued before Radhakrishna Rao, J., who was hearing this case sitting single, that this Court should generally not exercise the inherent power under S. 482, Cr.P.C. in such cases, and it was also to some extent contended that such applications under S. 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, 1978 Delhi 138 : (1978 Cri LJ 961) and also on certain observations made by the Full Bench of the Allahabad High Court reported in Mulain Singh v. State, 1974 Cri LJ 1397. The learned single Judge, after hearing the arguments 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.
3. The principle question that arise for consideration is "Whether the High Court in exercise of its powers under S. 401 or 482, Cr.P.C. 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 ?"
4. Incidentally we have to decide the scope of S. 427, Cr.P.C. 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 dacoit 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.
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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5. Section 482, Cr.P.C., 1973 is in the same language as S. 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 overall 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 circumstances 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 Legislative. Apart from this power, the High Court has also its revisional powers under S. 397 read with 401, Cr.P.C. Section 397, Cr.P.C., lays down that the High Court or any Session 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 or 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 Session by S. 307.
6. 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 S. 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.
7. At the outset we must point that that there is no period of limitation to exercise the suo motu power by the High Court under its revisional jurisdiction as provided under S. 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 S. 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 S. 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 S. 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 S. 427, Cr.P.C. Similarly, the High Court can also exercise its power under S. 48Z 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 S. 397 read with S. 401, Cr.P.C. or under S. 482, Cr.P.C. to direct the sentence to run concurrently under S. 427, Cr.P.C. if the facts and
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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circumstances warrant.
8. We shall now refer to some of the decided cases which throw some light on the point. In Sitaraman v. Pattabhiraman, AIR 1958 Mad 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. In Venkanna v. State of A.P., Mohamed 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 Baijnath v. State, 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 S. 369, Cr.P.C. and the order passed under S. 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. Satyam v. State of A.P., (1978) 2 Andh WR 451 : (1978 Cri LJ NOC 2 & 3) Sambasiva Rao, J., referred to the judgment of Mohamed 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 Madhya Pradesh, 1975 Cri LJ 498 and held that the High Court can exercise its power under S. 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 S. 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 provision under S. 397, Cr.P.C. A Full Bench of the Allahabad High Court in Mulaim Singh v. State, 1974 Cri LJ 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 S. 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 S. 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, 1971 Cri LJ 1674 (All) 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 Baijnath v. State (1961 (1) Cri LJ 423) (supra) it has been held that a petition under S. 561A seeking a direction to direct the sentence to run concurrently does not raise any question either of altering or 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 S. 482, Cr.P.C. seeking the High Court to exercise its inherent power and give the necessary directions as provided under S. 427, Cr.P.C. We are also of
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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the view that the High Court, suo motu, while exercising its jurisdiction under S. 397 read with S. 401, Cr.P.C. can also give the same directions as provided under S. 427, Cr.P.C. in appropriate cases.
9. The learned Public Prosecutor, however, laid considerable reliance on the judgment of the Delhi High Court reported in Gopal Das v. State (1978 Cri LJ 961) (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, and Palaniappa Gounder v. State of T.N., . 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 S. 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 proceedings. Their Lordships did not go to the extent of laying down that the inherent power cannot be exercised at all. In Palaniappa Gounder v. State of T.N. (supra) the Supreme Court held that an application under S. 482, Cr.P.C. by the heirs of the deceased seeking compensation cannot be entertained since there is an express provision under S. 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 S. 482, Cr.P.C. seeking the court to give direction as provided under S. 427, Cr.P.C. The learned Public Prosecutor no doubt submits that when there is a specific power under S. 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 S. 482, Cr.P.C. We see no force in this submission. It must be remembered that S. 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 S. 31, Cr.P.C., provides for ordering the sentences to run concurrently in a given case. Likewise, under S. 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 or-der 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 S. 482, Cr.P.C. and give the necessary directions as provided under S. 427, Cr.P.C.
10. The learned Public Prosecutor, however, relied on certain passages in the judgment of the Full Bench of the Allahabad High Court reported in Mulain Singh v. State, (1974 Cri LJ 1397) (supra), wherein it was observed :
"The discretion to make the sentence on subsequent conviction run concurrently with the previous sentence must be based on some sound principle and is not meant to be exercised in an arbitrary manner. It would be proper exercise of discretion to make the sentence on a subsequent conviction
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
Indian Kanoon - http://indiankanoon.org/doc/1724418/ 4
to run concurrently with the previous sentence where separate trials are held for offence which 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 S. 397(1), Cr.P.C., and if that stage is over, by the High Court under S. 561A of the Code. A person may be put up for trial for offences punishable under S. 399/522, I.P.C. He may be separately tried for an offence punishable under S. 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 S. 561A 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 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 or implied prohibition contained in it."
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 S. 482, Cr.P.C., seeking directions under S. 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 S. 482, can direct the sentence 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.
11. 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 an 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 dacoits 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
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
Indian Kanoon - http://indiankanoon.org/doc/1724418/ 5
petitioners.
12. The petition is, therefore, dismissed.
13. Petition dismissed.
V. Venkateswarlu vs State Of Andhra Pradesh on 24 March, 1987
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