Jagdish vs State of Madhya Pradesh and Others

N.K. Mody, J.

This is a petition u/s 427 read with Section 482 Cr. P.C. wherein the prayer is that the conviction of the petitioner in Special Case No. 9/97 dated 02/04/95 and in Special Case No. 16/97 dated 09/12/97 which were confirmed by this Court in Cr. A. Nos. 493/97 & 176/98 vide judgment dated 15/03/04 whereby the petitioner was convicted u/s 8/18 of NDPS Act and sentenced for 10 years RI and fine of Rs. 1,00,000/-in each, be ordered to run concurrently, the present petition has been filed.

Learned counsel for petitioner argued at length and submits that the petitioner is in jail w. e. f. 23/01/97 and has completed the jail sentence of more than 12 years. It is submitted that another case which was registered against the petitioner is dated 25/01/97 while petitioner was in custody w. e. f. 23/01/97. Learned counsel further submits that both the cases are one because during investigation of case it was disclosed that contraband articles has been hidden by the petitioner and upon information the articles were recovered. It is prayer that the petition filed by the petitioner be allowed.

Learned counsel for respondent submits that the petition itself is not maintainable as the petitioner did not make the prayer before the learned Trial Court at the time of judgment or also before this Court during the course of hearing of appeal. Learned counsel placed reliance on a decision in the matter of M.R. Kudva Vs. State of Andhra Pradesh, Reported in 2007 (1) Crime 50. It is submitted that the petition is devoid of substance, hence be dismissed.

Section 427 of Cr. P.C. lays down that in a case where a person already undergoing sentence of imprisonment is sentence on a subsequent, such imprisonment 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.

In the matter of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and another, wherein Hon''ble Apex Court has held that where the accused was caught red-handed in the first case under Gold (Control) Act and was awarded maximum sentence after pleading guilty and in the second case under the Customs Act was also awarded maximum sentence after pleading guilty which was to run consecutively, the accused was surely entitled a complain for giving the maximum sentence. It is no doubt true that the enormity of the crime committed by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. In the matter of Sher singh vs. State of M.P., reported in 1989 MPLJ 116 wherein a full bench of this Court had a occasion to consider that whether a prayer u/s 427 Cr.P.C. can be exercised by this Court while exercising inherent jurisdiction u/s 482 Cr.P.C. and in case where accused was convicted for two distinct and separate offence and sentences passed by two different Courts it was held that High Court under exercise of its inherent jurisdiction is competent to issue such direction. It was further held that High Court has power in appropriate cases to entertain an application u/s 482 of the Code by invoking its inherent powers at any time subsequent to the decision in a given case even if the trial Court or the appellate or revisional Court has failed to exercise its discretion u/s 427 (1) of the Code. In the matter of Mohan Bhanudas Mohite Vs. State of Maharashtra, wherein Bombay High Court in a case where accused was convicted and sentenced in sessions case while he was undergoing sentence, he was convicted and sentenced in another sessions Case, it was held that the order of Court to make two sentences to run concurrently is proper as the accused was convicted under NDPS Act and Section 32-A of the Act prohibits suspension, remission or commutation of sentence. In the matter of Paramjeet Singh Vs. State of Rajasthan, wherein in a case where the accused was convicted in three different criminal cases u/s 379 IPC it was held that the ends of justice would be met in directing substantive sentences for offence u/s 379 IPC in the three Criminal Cases to run concurrently.

So far as the law laid down by the Hon''ble Apex Court in the matter of Mr. Kudva (Supra) is concerned is quite distinguishable. In that case against the judgment of conviction which was maintained by the High Court SLP before Hon''ble Apex Court which was also dismissed and thereafter the application u/s 427 Cr.P.C. was filed and in that circumstances Hon''ble Supreme Court has observed that the application filed u/s 482 read with Section 427 Cr.P.C. after dismissal of SLP is not maintainable. In the present case it is not the situation. No SLP has been filed, therefore, the law laid down by Hon''ble Apex Court in the matter of Mr. Kudva (supra) is not applicable to this case.

In the matter of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and another, wherein Hon''ble Apex Court held as under:

The basic rule of thumb over the years has been the so called transactions rule for concurrent sentences. If a given transaction constitutes two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offence is shot the same or the facts constituting the two offences are quite different.

In the matter of State of Punjab vs. Madan Lal passed in Cr.A. No. 529/04 decided on 5th March 2009 in a case wherein the convictions were in terms of Section 138 of the Negotiable Instruments Act, 1881, the High Court noted that all the transactions related to the family of the respondent and the matter related to different cheques issued by the respondent to the complainant party. For this purpose separate complaints were filed. The High Court accordingly directed that the sentence imposed by learned Additional Sessions Judge and SDM Magistrate were to run concurrently was affirmed by the Hon''ble Apex Court.

In the present case in both the cases the petitioner has convicted for a period of 10 years with fine of Rs. 1,00,000/-. In both the cases offence was u/s 8/18 of NDPS Act and in both the cases the date of offence is 23/01/97 and 25/01/97. Undisputedly petitioner was in the custody of the respondent w.e.f. 23/01/97. In the facts and circumstances of the case petition filed by the petitioner is allowed and it is directed that the jail sentence awarded to the petitioner in Special Case no. 9/97 and in Special Case No. 16/97 shall run concurrently.

With the aforesaid observations, petition stands disposed of.