Sharad Chandra vs State

Nevaskar, J.—Accused Sharad Pradhan was convicted by the Additional City Magistrate, Indore u/s 409 I.P.C. and was sentenced to rigorous imprisonment for one year and a fine of Rs. 400 and in default to undergo rigorous imprisonment for three months. This conviction and sentence passed by the Magistrate was confirmed in appeal by the Third Additional Sessions Judge, Indore. The present revision-petition is directed against that decision.

The only, point which Mr. Daji for the petitioner pressed is that this accused is already undergoing sentence, of imprisonment for three years in respect of two previous convictions for similar offences. This court therefore, should exercise its powers under Sec. 397, Cr.P.C. and direct that the sentence passed in the present case should run concurrently with the sentences passed in other cases including Cr. A. NO. 113 of 1954 and in Cr. Rev. No. 21 of 1956.

The Deputy Government Advocate, Mr. J.D. Patel who appears on behalf of the State concedes that this Court has powers u/s 397, Cr.P.C. to direct even in appeal to make the sentence run concurrently with the sentence which the accused may be already undergoing in other cases. But he urges that the powers of this court should not be exercised in this case, as the accused is a Government servant and is proved to have committed defalcation of Government Fund Section 397, Cr.P.C. in so far as it is material for the present purposes is as follows:-

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.......

It appears from the wording of the provision, that it is competent for this Court to direct that sentence which it awards shall run concurrently where the accused is already undergoing a sentence of imprisonment. It held in Sis Ram and Others Vs. Emperor, that the High Court can direct separate sentences in separate trials to run concurrently. This view is also followed by the Bombay High Court in Nagappa Vyankappa Sali vs. Emperor AIR 1931 Bom. 529. It is clear from the view taken in these cases that the word ''Court'' used in Sec. 397, Clause 1, includes the High Court exercising appellate or revisional jurisdiction, It therefore follows that, it is competent for this Court to direct that the sentence of imprisonment in the present case shall run concurrently with the sentence of imprisonment which the accused is undergoing with respect to the cases referred to above. So far as the merits of the matter are concerned, the accused is convicted for similar offences in all these cases and it was open for the prosecution to include even the present charge in one of the cases in which he was sentenced to undergo a term of imprisonment. It would be too hard to make sentences of imprisonment to run consecutively in cases of this sort. I, therefore, in exercise of my powers under Sec. 397, Cr.P.C. direct that the sentence of imprisonment in this case shall run concurrently with the sentence of imprisonment in the aforesaid cases.