Aziz Khan Pathan vs State of M.P.

S.R. Waghmare, J.—By this application u/s 482 of the Cr.P.C. read with Section 427 of the Cr.P.C. the applicant Azij Khan Pathan who is in jail has moved the application for directing the sentence to run concurrently. Brief facts necessary for elucidation are that there were two convictions against the present accused applicant Azij Khan for two separate offences as follows:

In the first offence the date of the incident was 10.8.1997, and the applicant was being proceeded for offence u/s 8/ 21(B)(C) of the N.D.P.S. Act. The Trial Court convicted him on 17.06.2004 and sentenced him to 10 years rigorous imprisonment and fine of Rs. 1 lac. The sentence was however reduced to 7 1/2 years in Criminal Appeal No. 1140/ 2004 decided on 31.07.2008.

In the second offence the date of the incident is 19.10.2001. The Trial Court convicted him for offence u/s 8/ 21(B) of the NDPS Act and sentenced to 10 years rigorous imprisonment with fine of Rs. 1 lac on 17,06.2004. In appeal, i.e. Cr.A. No. 796/04 the sentence was upheld on 5.04.2010, however the default clause regarding the payment of fine was modified to simple imprisonment of 2 months.

Counsel for the petitioner has candidly admitted that there was no prayer for making the sentence, to run concurrent either in the earlier appeal No. 1140/2004 or in the appeal No. 796/2004 which was decided at later date i.e. 5.04.2010; and that, this present application is being moved separately u/s 482 of the Cr.P.C. since the applicant is in custody from 20.10.2001. He prayed for direction that the sentence be directed to run concurrently as the applicant will have completed his entire sentence in both the cases. Counsel relied on the following few judgments of the Apex Court as well as various High Courts.

Relying on full judgment of Madhya Pradesh in the matter of Sher Singh Vs. State of M.P., Counsel stated that a Full Bench while considering similar question when the accused was convicted of 2 distinct and separate offences and sentence were passed by two different Courts and they had become final, the application was moved by the accused before the High Court u/s 482 to make the sentences run concurrently. The Apex Court had held that such an application was maintainable by the High Court under exercise of its inherent jurisdiction. The High Court is competent to issue such direction and the High Court has power in appropriate cases to entertain an application u/s 482 of the Code by invoking its inherent power at any time subsequent to it in a given case even if the Trial Court or the Appellate Court or the Revisional Court has failed to exercise its discretion u/s 427(1) of the Code. The Apex Court further declared that the decision of M.P. High Court in the matter of A.S. Naidu Vs. The State of Madhya Pradesh, was no longer good law to the extent as it says that the power u/s 427(1) of the Cr.P.C. 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 u/s 482 since the court does not become functus officio.

Relying on another judgment of the Andhra Pradesh High Court in the matter of Ammavasai and Another Vs. Inspector of Police and Others, whereby considering the benefit of the sentences to run concurrently the Court had held that the occurrences of all the cases be taken place between 3 to 5 months and the offence against the appellants were found in all cases to be u/s 395 of the IPC, the appellants have been directed to undergo 7 years rigorous imprisonment in each case and the appellants claimed benefit u/s 427 to avoid undergoing imprisonment of total period of 28 or 35 years in jail and the benefit if allowed to the appellants, they would be out of after serving sentence of 7 years in one case, however, the Apex Court had directed that to meet the end of the justice the appellants were to undergo total period of 14 years of imprisonment in respect of all the convictions passed against them.

Relying on judgment of the Bombay High Court Counsel stated that in the case of Mohan Bhanudas Mohite Vs. State of Maharashtra, the Bombay High Court had considered the similar question of concurrent running of sentence against the accused for offence u/s 21 of the N.D.P.S. Act and the Court was posed the question whether Section 32A of the N.D.P.S. Act would Act as a bar of such a direction for making sentence to run concurrently because Section 32A of the NDPS Act prohibits suspension, remission or commutation of sentence and the Court was pleased to hold that Section 427 of the Cr.P.C. is not hit by Section 32A of the N.D.P.S. Act. The Bombay High Court had relied on the earlier judgment by the Apex Court in the matter of Ammavasai (supra) Counsel prayed that the application be allowed and benefit of the sentence to run concurrently be granted to the accused.

Per contra Counsel for the respondent/State has relied on two decisions to oppose the Counsel for the applicant. Relying on judgment of Andhra Pradesh High Court in the matter of Amarnath Umakanth Vs. State of A.P., Counsel stated that the learned single Judge had categorically considered the question whether the inherent powers of the High Court to direct subsequent sentence to run concurrently with earlier sentence was considered in its entire scope. The Court found that the petitioner had undergone the earlier sentence and the said sentence was not suspended during the pendency of the appeal and in this light order directing subsequent sentence to run concurrently with the earlier sentence could not passed. Moreover the same view has been reiterated recently by the Apex Court in the matter of M.R. Kudva Vs. State of Andhra Pradesh, whereby the Apex Court had specifically considered the question whether in a given case when the provision u/s 427 of the Cr.P.C. was not invoked in the original cases or appeals or separate application filed before the High Court after the dismissal of the SLP was not maintainable, the Court held that the High Court could not have exercised its inherent jurisdiction in a case of this nature which it has previously not exercised while deciding the appeals. The Apex Court further held that the application u/s 482 of the Cr.P.C. is not an appropriate remedy as neither of the trial Judge nor High Court while convicting and sentencing the appellants indicated that sentences passed against him in both the cases shall run concurrently or that 427 of the Cr.P.C. would be attracted and hence Section 427 of the Cr.P.C. Could not rightly be applied in a separate and independent proceedings by the High Court and the appeal was therefore dismissed. Counsel prayed for dismissal of the application.

On considering the above submissions I find that as already observed above in the present case while deciding both the appeals by the High Court such a prayer was not made before the Court and in this light although there is a Full Bench judgment of this High Court of M.P. it is of the year 1989 and whereas the judgment of the Apex Court in the matter of M.R. Kudva (supra) is of the year 2007 and it would be applicable in full force in the present case. Moreover the case of Ammavasai (supra) has already been considered by the Apex Court in para-10 of its decision and in these circumstances I find that the application is without merit and the sentence cannot be directed to run concurrently.

Even otherwise, I find that, at the time of decision of the second case, i.e., Criminal Appeal No. 796/2004 the sentence in the first offence was already over and the sentence had begun to run in the second case only thereafter. In such circumstances, even if the specific words of Section 427 of the Cr.P.C. are considered, I find that the Section 427 mandates that "a person already undergoing the sentence of imprisonment is sentenced of subsequent conviction" whereas during decision of the second case Cr.A. No. 796/04 i.e., appeal before the High Court there was no conviction pending against the present applicant on 5.4.2010 the date of the judgment. And I find that in this light the application is not maintainable because then the provision of Section 427 are not attracted at all.

After having bestowed my anxious consideration to the facts of the case and the provision of Section 427 of the Cr.P.C. I find that at the time of passing the second conviction against the same accused; the condition precedent is that, the accused must be undergoing a sentence; only, then the Court can pass a direction to make the subsequent sentence concurrent.

The application is thus without merit and is dismissed as such.