Parahlad Kumar Alias Raj Kumar vs State Of H.P And Others

Sr.

No.",Case No.,"Date of

Judgment","Sentencing

order",Sentence awarded,"Sentence served (including

remission)","Sentence remaining including default

sentence

1.,"FIR No.45/2000

Sessions Case

No.25/2000, P.S.

Div. No.01,

Pathankot",10/03/2003,11/03/2003,"10 years, Fine Rs.01 Lakh

I/D 01 year",10 years,"Imprisonment I/d of payment of fine

shall be kept in abeyance till the

expiration of all the substantive

sentences of imprisonment

2.,"FIR No.07/2008,

S.T. No.37/2008,

P.S. Tissa",20/11/2008,21/11/2008,"10 years, Fine Rs.01 Lakh

I/D 01 years",08 years,"03 years, including fine sentence, I/D

01 years

3.,"FIR No. 43/2008,

S.T No.39/2008,

P.S. Sadar Mandi",21/02/2012,21/02/2012,"02 years RI, Fine Rs.20,000/-

I/D 03 months",Yet to be executed,"02 years RI and 03 months I/D of

fine

4.,"FIR No. 163/2011,

Case No.49-

III/2011, P.S.

Dharamshala",26/02/2013,28/02/2013,"06 months RI, Fine Rs.1000/-

I/D-01 month",Sentence undergone,Undergone

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

imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.â€​",,,,,,

The case in hand falls under sub-section (1) of Section 427, which mandates that when a person already undergoing 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, however, the only exception that has been carved out is that the subsequent",,,,,,

sentence shall run concurrently with previous sentence if Court so directs.,,,,,,

On facts, there is no dispute that Courts having convicted/sentenced the petitioner in cases at Serial No. 2 and 3 of the table did not exercise such",,,,,,

jurisdiction in favour of the petitioner as there was no order for the sentence passed in such cases to run concurrently with the sentence passed in,,,,,,

previous case. Needless to say, that the Court under Section 427 would include the Appellate as well as Revisional Courts. As noted above, petitioner",,,,,,

had assailed the conviction and sentence in case at Serial No. 2 of the table in appeal before the High Court and in Special Leave Petitions before the,,,,,,

Apex Court with the same result. In case at Serial No.3, the petitioner did not choose to assail the judgment passed by learned trial Court either in",,,,,,

appeal or in any other proceedings.,,,,,,

In the given situation, the question arises as to whether the petitioner can be granted the same relief in exercise of jurisdiction under Article 226 of",,,,,,

the Constitution, which he had failed to get from the Courts in exercise of their jurisdiction under Section 427(I) of the Code. We have no hesitation to",,,,,,

answer this question in negative. This is a case where the petitioner has unsuccessfully availed the remedy in accordance with law or has waived his,,,,,,

right to avail such remedy. It is trite that when the statutory remedy is available to a person, having availed such remedy, he cannot approach the",,,,,,

Constitutional Court successfully without proving that the available remedy was not effective or the statutory had not acted in accordance with the,,,,,,

provisions of enactment or there was defiance of fundamental right or judicial procedure and natural justice. Reference may be made to,,,,,,

Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, 2014(1) SCC 603 in this behalf.",,,,,,

The proposition akin to the one in hand was dealt by the Apex Court in M.R. Kudva vs. State of A.P. (2007) 2 SCC 772, with the only difference",,,,,,

that the petitioner in that case had approached the High Court under Section 482 Cr.P.C. Paragraph 12 of the judgment reads as under:-,,,,,,

“12. However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application",,,,,,

was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High",,,,,,

Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in,,,,,,

appeal. Section 482 of the Code was, therefore, not an appropriate remedy having regard to the fact that neither the Trial Judge, nor the High Court",,,,,,

while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run,,,,,,

concurrently or Section 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the",,,,,,

High Court. The appeal being devoid of any merit is dismissed.,,,,,,

A Co-ordinate Bench of this Court in Sushil Kumar alias Shashi vs. State of Himachal Pradesh, 2014 (1) Shim. LC 214 was also confronted with",,,,,,

the same proposition, albeit in exercise of powers under Section 482 Cr.P.C of the Code. Placing reliance upon M.R. Kudva’s case supra, while",,,,,,

dismissing the petition, the Court held as under:-",,,,,,

“ 14. In the instant case, petitioner Suhsil Kumar was convicted for two offences in separate trials for attempted murder on a person and",,,,,,

murdering another person at two different times. Both these transactions were different in time and separate and were also not interconnected with,,,,,,

each other. Therefore, we are of the opinion that this Court cannot interfere with the sentences passed in two separate cases, tried and decided",,,,,,

separately under its inherent jurisdiction, therefore, the petition is dismissed.â€​",,,,,,

Learned counsel for the petitioner has placed reliance on judgment passed by the Apex Court in Vicky @ Vikas vs. State (NCT of Delhi), (2020)",,,,,,

11 SCC 540. With all deference to the above referred judgment, the same cannot benefit the cause of the petitioner. The Hon’ble Apex Court in",,,,,,

that case has exercised jurisdiction while hearing the appeal against the judgment passed by the High Court of Judicature at Delhi, whereby while",,,,,,

dismissing the appeal of the appellant, the High Court had also dismissed the application to direct the sentences awarded to him to run concurrently.",,,,,,

In V.K. Bansal vs. State of Haryana, (2013) 7 SCC 211, subsequently followed in Benson vs. State of Kerala (2016) 10 SCC 307, it has been held",,,,,,

that the discretion to be exercised in directing the sentence to run concurrently would depend upon the nature of the offence/offences and facts and,,,,,,

circumstances of each case. The Hon’ble Supreme Court in these cases had exercised the jurisdiction in favour of convict in the given facts and,,,,,,

circumstances of each case by holding that the offences therein were having close proximity or relationship in terms of their nature and transaction,,,,,,

etc. The above said discretion cannot be allowed in present case as the offences in all the cases are distinct and of serious nature. It appears that the,,,,,,

petitioner, whenever granted parole, misused the liberty and indulged in serious offences under the NDPS Act. Not only this, petitioner was convicted",,,,,,

and sentenced to undergo 8 months and 6 months rigorous imprisonment respectively by learned Chief Judicial Magistrate, Gurdaspur (Punjab) under",,,,,,

the Punjab Good Conduct Prisoners Act. There is no manner of doubt that the petitioner is a habitual offender, that too, of serious offences under the",,,,,,

NDPS Act.,,,,,,

The hazard of drug abuse is one of the most perilous problems presently being faced by the society. A large number of students and adolescents,,,,,,

have succumbed to the addiction of drugs. We feel it necessary to express that the persons like petitioner are responsible for hysterical following of,,,,,,

young generation towards drug addiction. Petitioner cannot command any discretion much less any sympathy.,,,,,,

In view of the discussion made above, there is no merit in the instant petition and the same is accordingly dismissed. Pending application(s), if any,",,,,,,

shall also stand dismissed.,,,,,,