Santosh Kumar vs The State (NCT of Delhi)

A.K. Pathak, J.—By way of present petition, u/s 482 Code of Criminal Procedure, 1973 read with Article 226 of the Constitution of India, petitioner has prayed that sentence awarded to him in two separate cases arising out of FIR No. 179/2005 under Sections 419/177/181/200/468/471/420 IPC and FIR No. 235/2004 under Sections 419/420/468/471 IPC be directed to run concurrently.

Facts of the case, leading to the filing of the present petition, are that vide order dated 13th December, 2006 passed by learned Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi, petitioner was convicted in case No. 508/2002 arising out of FIR No. 179/2005 registered in Police Station Tilak Marg, on his pleading guilty. Subsequently, vide order of sentence dated 22nd December, 2006, petitioner was sentenced to Rigorous Imprisonment for a period of two years for the offence u/s 177 IPC, Rigorous Imprisonment for a period of three years for the offence u/s 181 IPC, Rigorous Imprisonment for a period of six months for the offence u/s 182 IPC, Rigorous Imprisonment for a period of two years for the offence u/s 200 IPC, Rigorous Imprisonment for a period of three years for the offence u/s 419 IPC, Rigorous Imprisonment for a period of three years and a fine of Rs. 2000/- for the offence u/s 420 IPC; in default of payment of fine to further undergo Simple Imprisonment for a period of 15 days, Rigorous Imprisonment for a period of three months and a fine of Rs. 2000/- for the offence u/s 468 IPC; in default of payment of fine to further undergo Simple Imprisonment for a period of 15 days and Rigorous Imprisonment for a period of two years for the offence u/s 471 IPC. All the sentences awarded in this case were directed to run concurrently.

Petitioner was also facing trial in case No. 498/2002 before the Additional Chief Metropolitan Magistrate, Patiala House Courts, New Delhi. This case had arisen from the FIR No. 235/2004 under Sections 419/420/468/471 IPC registered by Police Station I.G.I. Airport. After conclusion of trial, learned Additional Chief Metropolitan Magistrate convicted the petitioner under Sections 420/471 IPC vide order dated 19th December, 2007. Later on vide order on sentence, passed on 22nd December, 2007, petitioner was sentenced to face Rigorous Imprisonment for two years for the offence u/s 420 IPC and was further directed to pay a fine of Rs. 1000/- and in default to undergo Simple Imprisonment for 10 days. Petitioner was also sentenced to face Rigorous Imprisonment for a period of one and a half year u/s 471 IPC. Both the sentences in this case were also ordered to run concurrently.

Two separate substantive sentences were awarded by the learned Additional Chief Metropolitan Magistrate in the aforesaid two different criminal cases. They were not directed to run concurrently. Thereafter, petitioner filed an application u/s 427 Code of Criminal Procedure before the Additional Sessions Judge, New Delhi, wherein it was prayed that sentences awarded in the two separate cases be directed to run concurrently. This application was dismissed as not maintainable by the learned Additional Sessions Judge, New Delhi, vide order dated 16th February, 2009.

Petitioner has now come up before this Court by filing this petition seeking the same relief. He has prayed that benefit of Section 427 Code of Criminal Procedure be granted to him and the sentence awarded in case FIR No. 235/2004 be ordered to run concurrently with the sentence awarded in case arising out of FIR No. 179/2005.

I have heard the learned Counsel for the parties and perused relevant record.

Section 427 of Code of Criminal Procedure, 1973 (hereinafter referred to as ''The Code'') reads as under:

Sentence on offender already sentenced for another offence.-(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 122 in default of furnishing security is, whilst undergoing such sentence, sentenced 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 for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

A bare perusal of the Sub-section (1) of Section 427 of the Code clearly shows that if 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. Meaning thereby, that as a general rule a sentence of imprisonment awarded in the subsequent case would start only after the imprisonment awarded in the earlier case is complete. Sentences awarded in the subsequent cases would run consecutively, until and unless the Court while awarding subsequent imprisonment passes an order that it shall run concurrently with the sentence awarded in previous case. In terms of Section 427 (1) of the Code, duty is cast on the trial court to consider the question of subsequent sentence being made concurrent with the sentence which the accused had been undergoing in the previous conviction. This judicial discretion in suitable cases of subsequent conviction is to be exercised by the Court awarding the sentence. This discretionary power is to be exercised by the concerned Court on the merits of each case at the time of awarding the subsequent sentence. After pronouncement of the judgment, recording of conviction and sentencing of accused to appropriate punishment, the Court becomes functus officio and cannot by resort to the provisions of Section 427(1)) of the Code, on an application of an accused pass an order directing that the imprisonment awarded by it shall run concurrently with the imprisonment, which the accused had already been undergoing at the time when the Court sentenced him to imprisonment subsequently. Appellate or Revisional Court can also exercise power u/s 427 of the Code, in appropriate cases, after same is brought before it in the appeal/revision. However, in case the convict does not avail the remedy of appeal or revision then neither the Appellate nor Revisional Court can entertain independent application u/s 427 of the Code to pass an order that both the sentences would run concurrently. Even the High Court in exercise of its inherent power u/s 482 of the Code will refrain itself from entertaining such a plea.

In this case, the petitioner neither preferred any appeal nor revision against the orders passed by the learned Additional Chief Metropolitan Magistrate. No such plea was taken by the petitioner before the learned Additional Chief Metropolitan Magistrate in the subsequent case that the sentence awarded be run concurrently with the sentence already awarded in the earlier case. He even did not file any appeal or revision against the order passed by the learned Additional Chief Metropolitan Magistrate praying therein that both the sentences shall run concurrently. Subsequent case was decided after a full-fledged trial. It was open to the appellant to prefer an appeal if he was not satisfied with his conviction or with the quantum of punishment awarded to him vide order dated 22nd December, 2007. Since the petitioner did not take above remedies available to him under the Code, he is precluded from invoking the inherent powers of this Court.

In '' Gapal Dass Vs. The State, a Full Bench of this Court held that it was not open to the petitioner to invoke the inherent powers of the High Court u/s 482 of the Code, having failed to avail the remedy of appeal or revision.

In Gapal Dass case (supra) this Court framed following question to be answered, which reads as under:

Whether the High Court, in the exercise of its inherent powers at the instance of a party, who has a right of appeal or revision but has not availed himself of that right, can pass an order directing that a sentence of imprisonment awarded, to such a persona on a subsequent conviction, to imprisonment when, he is already undergoing a sentence of imprisonment on an earlier conviction shall run concurrently with such previous sentence.

After detailed discussion, full bench of this Court answered the question in the following manner:

Our answer to the reference accordingly is that the petitioners having not availed of the remedy of appeal or revision are precluded from invoking the inherent powers of this Court in seeking the redress sought in these petitions.

Full Bench of Punjab and Haryana High Court in ''Jang Singh v. State of Punjab'' reported in ILR 2007 (P&H) 550 held that direction to make the sentence to run concurrently can be exercised by the trial court or by the Appellate Court or a Revisional Court at the time of exercising appellate or revisional jurisdiction and no such relief can be granted by the High Court in exercise of its inherent powers u/s 482 of the Code.

Supreme Court in '' M.R. Kudva Vs. State of Andhra Pradesh, held that Section 427 could not be applied in a separate and independent proceedings by the High Court, more so when neither trial judge or 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. It was further held that Section 482 of the Code was not an appropriate remedy in such like cases.

In the light of above discussions, I am of the view that the order prayed cannot be passed by this Court in exercise of its inherent jurisdiction, more so when no such plea was taken before the trial court when sentence was awarded in the subsequent case nor any appeal or revision was preferred by the petitioner.

Accordingly present petition is dismissed.