Nandkishore vs State of M.P.

S.L. Kochar, J.

Shri J. Argal, Learned Counsel for applicant. Shri S.R. Vohra, learned DGA for State. Heard on the question of admission.

This petition u/s 482 of Criminal Procedure Code has been filed by the applicant Nandkishore whereby praying for order by this Court directing his sentences to run concurrently passed by II Addl. Sessions Judge, Indore in S.T. No. 611/1991, convicting under Sections 306, 304-B of Indian Penal Code dated 18-1-1999, sentenced to R.I. for seven years and fine of Rs. 500/- . This sentence has been completed by the applicant Nandkishore on 4-6-2004 and another conviction u/s 307 of Indian Penal Code, judgment and finding dated 2-3-2000 passed by XII Addl. Sessions Judge, Indore in S.T. No. 3/99 and sentenced to R.I. for five years and fine of Rs. 500/- . Against this conviction, the applicant had also filed Cr. Appeal No. 569/2000 which has been dismissed by the High Court vide judgment dated 29-3-2004.

The Learned Counsel has submitted that u/s 482 read with 427 of Criminal Procedure Code, this Court has power to order for running of his both the sentences mentioned hereinabove concurrently. In support of his contention, the Learned Counsel has placed reliance on a judgment passed by Division Bench of Andhra Pradesh High Court passed in a case of v. Venkateswarlu v. State of Andhra Pradesh, 1987 Cri.LJ 1621 and another judgment rendered by Supreme Court in case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti Vs. Assistant Collector of Customs (Prevention), Ahmedabad and another, .

Having heard the Learned Counsel for parties and after perusing the petition filed by the applicant and the copies of the judgment passed by the Court below, as well as the judgments relied upon by the Learned Counsel for applicant, this Court is of the opinion that there is absolutely no dispute regarding power of this Court u/s 482 of Criminal Procedure Code to order for running of sentence, passed against the accused separately in two, three or more criminal cases by different different Courts, concurrently and this can be done by invoking provision u/s 427 of Criminal Procedure Code. But in the light of the Supreme Court judgment relied upon by the Learned Counsel for applicant passed in case of Mohd. Akhtar Hussain (supra), the provision u/s 427 cannot be invoked in the facts and circumstances of the case of the applicant. The applicant has been convicted by II Addl. Sessions Judge, Indore by judgment dated 18-1-1999 for the offences under Sections 306 and 304-B of Indian Penal Code whereas for the another offence he has been convicted by the learned XII Addl. Sessions Judge, Indore for a separate and distinct offence u/s 307 of Indian Penal Code by judgment dated 2-3-2000. The Supreme Court has held in paragraphs 8, 9 and 10 as under:

Section 427, Criminal Procedure Code incorporates the principle of sentencing an offender who is already undergoing a sentence of imprisonment. The relevant portion of the section reads: "427. (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.

The section relates to administration of criminal justice and provides procedure for sentencing. The sentencing Court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive?

The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under 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 offences is not the same or the facts constituting the two offences are quite different.

In view of the above mentioned law laid down by the Supreme Court, the applicant cannot get benefit of Section 427 of Criminal Procedure Code because he was not convicted for both the offences committed by him in the same transaction or the same facts constituting the two offences. Both the offences are quite different and also committed by the applicant on a different different date. He was convicted under Sections 306, 304-B, Indian Penal Code, this offence is the offence of commission of dowry death and abatement to commit suicide by wife of the applicant. It was committed in the year 1991 or prior to that whereas the offence u/s 307 of Indian Penal Code is attempt to commit murder. This was also committed on a different date. Both the offences were not committed by the applicant in one and the same transaction and both were not depending on same facts. Therefore, applying the test as laid down by the Supreme Court mentioned hereinabove, no case is made out in favour of the applicant to order for running his sentence concurrently passed by two different Sessions Courts as mentioned in this order hereinabove.

Hence this petition is dismissed having no merit.