Mohammad Rashid vs State

S.M. Rizvi, J.—This is an application u/s 561-A read with Section 397 of the Cr. P.C. praying that, the sentences, imposed on the petitioner

in six criminal trials separately, may be made to run concurrently.

The perusal of annexure ""I"" attached to the application which has been issued by the Superintendent, Central Jail, Jammu, where the petitioner is

undergoing the sentences, shows that in criminal trial No. 255 of 1978, he was sentenced to three years rigorous imprisonment and a fine of Rs.

250/-and in default of payment of fine, to three months' rigorous imprisonment by the learned Chief Judicial Magistrate, Rajouri for the offence

Under Sections 457 and 380, R.P.C. on 8-11-1980. In criminal trial No. 23 of 1978, he was sentenced to five years' rigorous imprisonment and a

fine of Rs. 200/-, and in default of payment of fine, to three months' rigorous imprisonment by the learned Sessions Judge, Rajouri for the offence

u/s 457, RPC on 31-1-1981. In criminal trial No. 82 of 1979, he was sentenced to two years' rigorous imprisonment and a fine of Rs. 800/-, and

in default of payment of fine, to ten months' rigorous imprisonment by the learned Chief Judicial Magistrate, Rajouri for the offence Under Sections

457, 380 RPC on 7-1-1981. In criminal trial No. 47 of 1981, he was sentenced to three years' rigorous imprisonment and a fine of Rs. 700/- and

in default of payment of fine, to eight months' rigorous imprisonment by the learned Sessions Judge, Rajouri for the offence Under Sections 494,

497, RPC on 8-5-1981. In criminal trial No. 156 of 1980, he was sentenced to four years' rigorous imprisonment by the learned Chief Judicial

Magistrate, Shopian for the offence u/s 392, RPC on 24-9-1981. In criminal trial No. 5 of 1978, he was sentenced to two years' rigorous

imprisonment and a fine of Rs. 1,000/-, and in default of payment of fine, to six months' rigorous imprisonment, by the learned Judicial Magistrate

First Class, Nowshera, for the offence Under Sections 380/457, RPC on 30-11-1981.

Admittedly, the petitioner has not filed any appeal against the said convictions and sentences, and has been suffering the imprisonment, since He

was first convicted and sentenced.

A notice of this application was directed to be issued to the Chief Government Advocate. Jammu, and he appeared for the State.

I have heard the learned Counsel for the parties, and have gone through the file.

Oh the arguments advanced at the Bar, the first question, that arises for determination is whether Section 397(1), Cr. P.C. applies here. For this

purpose, it would be advantageous to reproduce Section 397 as below:

Sentence on offender already sentenced for another offence. â€" (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;

Provided that where a person who has been sentenced to imprisonment by an order u/s 123 in default of furnishing security is, whilst undergoing

such sentence, sentences to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence

immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or

imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

The general rule is that, a sentence commences to run from the time of its being passed, and 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.

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.

The meaning of Section 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 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 appellate Court also has power to direct separate sentences of separate -trials, to run concurrently.

The crux of the matter, however, is can this Court, when no appeal or revision is pending here against the convictions and sentences pass an

order contemplated by Section 397(1) of Cr. PC? The answer must be in negative.

Section 397(1) enacts the rule when a person already undergoing a sentence of imprisonment is sentenced to imprisonment subsequently, u/s

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 sentences shall run concurrently with the previous sentence.

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 convictions, no orders contemplated by Section 397(1) were passed by the concerned Courts holding the subsequent trials. There is

no dispute that, this power u/s 397(1) can be exercised also at the appellate stage by Court of Appeal, put, in the instant case, as stated above, no

Such appeal has been preferred against such convictions. For these reasons, it is plain, and I hold accordingly, that Section 397(1), Cr. P.C. does

not apply to the present case.

The next question which then arises, is, can the High Court exercise its inherent powers u/s 561-A of the Cr. P.C?

Section 561-A is to the following effect:

561-A. Saving of inherent power of High Court.â€" 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.

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. It cannot be said that, Courts have no power to do justice, or redress a wrong because no express provision of the Code can be found to

meet the requirements of a case.

All that Section 561-A 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 where there is another remedy available.

In the instant case, it is not disputed that, except Section 397(1) of the Cr. P.C. there is no other provision in the Code which would apply to

the facts of the present case. It is well settled 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. 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 u/s 561-A of the Code to secure the ends of justice.

A Division Bench of the Calcutta High Court in Jainta Kumar Banerjee Vs. The State, the Orissa High Court, held that the High Court has

power to order that the sentences passed on different dates in respect of different convictions of ihe accused by Courts, other than the High Court,

should run concurrently.

The present case, in my opinion, is a fit case in which the inherent powers of this Court u/s 561-A of Gr. P.C. should be exercised in favour of

the petitioner. No order u/s 397(1) having been passed either by the trial Courts or by the Appellate Courts concerned, for want of any appeal

having been filed against any conviction and sentence, it is clear that the petitioner has no other remedy in law. The result of the allowing the prayer

of the petitioner, woujd be, that he would suffer about twenty years' rigorous imprisonment. The sentences have been passed by four different

Courts; two by the learned- Sessions Judge, Rajouri, two by the learned Chief Judicial Magistrate, Rajouri, one by Chief Judicial Magistrate,

Shopian, and one by Judicial Magisrate, Nowshera. All the sentences have been passed by them within a span of one year, and, surprisingly, none

of them has taken note of the fact that, the petitioner was already suffering imprisonment and deserved some benefit u/s 397(1) of the Cr. P.C. 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 this application and pass an order u/s 561-A of Cr. P.C. directing the subsequent sentences as mentioned in this

application, passed on the petitioner at the subsequent trials, to run concurrently with the previous sentence. This would, however, relate only to

substantive imprisonments. The sentence of imprisonment in default of payment of fine, cannot be ordered to run concurrently with sentences of

substantive imprisonment. Although, Section 35 of Cr. P.C. does not expressly refer to substantive sentences of imprisonment, it must be,

however, read with Section 64 of the Penal Code, which clearly contemplates that, when imprisonment in default of payment of fine is ordered, it

shall be in excess of any other imprisonment, to which accused may have been sentenced. So, sentences of imprisonment for default in payment of

fine, cannot be directed to run concurrently with a substantive sentence of imprisonment. Section 64, RPC is to the following effect:

In every case of and offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without

imprisonment,

and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine,

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall

suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or

to. which he may be liable under a commutation of a sentence.

In this view of the matter, the result is that, at the expiration of the concurrent substantive, sentences of imprisonment as directed above, the

petitioner shall further suffer the sentences of imprisonment for default in payment of fine, which too, shall run concurrently inter se. The application

is, accordingly, disposed of. Let the file be consigned to records.