Shri Jainarayan Sah vs State of Assam

B.L. Hansaria, J.—The Petitioner was convicted u/s 376 of Indian Penal Code by the Assistant Sessions Judge, Tezpur in Sessions Case No. 126(D-T) 1975 and was sentenced to R.I. for four years and a fine of Rs. 1000/-. This was on 19.6.76. While under going this sentence, he was found guilty u/s 324 of the Penal Code in Sessions case No. 82(D-T) 1977 0n 30.7.77 and was sentenced to undergo R.I. for 3 years. In the second judgment, there was no reference to any previous conviction and, as such, nothing was said as to whether the sentence u/s 324 would run consecutively or concurrently. The Petitioner desired his release on completion of the aforesaid period of sentences by taking them to run concurrenly. The jail authority however, desired a specific order in this regard, which was found wanting in the comitment warrant. It was stated by the Superintendent of the District Jail, Tezpur that as per Rule 242 of the Assam Jail Manual Volume-I, the aforesaid sentences were to be counted chronologically. The matter was, there after, placed before the learned Assistant Sessions Judge who, by his impugned order, has held that he was prohibited by Section 362 of the Code of Criminal Procedure to order for concurrent running of the sentences. He, further felt that only this Court in its inherent Jurisdiction or in exercise of power of revision could grant the prayer The Petitioner has accordingly filed this application to seek the above order.

The first question which needs to be examined is whether Section 362 of the Code which has prohibited alteration or review of a judgment or final order disposing of a case, except to correct a clerical or arithmatical error, could have stood in the way of the learned Judge in granting the relief prayed for by the Petitioner. There can be no doubt that a sentence is part of the judgment ; indeed, it is one of the main arteries throbbing and pulating a judgment of a criminal court. Alteration of sentence would, therefore, be alteration of judgment. In State of Orissa Vs. Ram Chander Agarwala and Others, which was also a case of alteration of sentences, it was clearly held by the Supreme Court that the same could not be done even by the High Court in exercise of its inherent powers in as much as the ban imposed by Section 362 cannot be lifted by taking recourse in the inherent powers. This was made clear in Smt. Sooraj Devi Vs. Pyare Lal and Another, which has pointed out that the opening words of Section 362 "Save as otherwise provided by this Code or by any other law for the time being. in force, referred, to those provisions only where Court has been expressly authorised by the Code or other law to after or review its judgment; the inherent power was not contemplated by the aforesaid saving provision.

This being the position, recourse to the inherent power would not be permissible to pass the order of the kind sought for by the Petitioner, if it were to be that Section 362 prohibited the same.

Shri Khatri refers to Section 427 of the new Code, (whose counter-part in the old Code was Section 397) and submits that this provision has conferred an independent power on the Court to direct a subsequent sentence to run concurrently with an earlier sentence, which power could be exercised even after the disposal of the case on merits, since it does not involve any review of judgment. He relies in this connection on A.S. Naidu v. State of M.P. 1975 CriL.J. 493, which has referred to many earlier decisions of different High Courts on this point. A perusal of this judgment and others referred in the decisions noted by the Division Bench shows that divergent views have been held by different High Court in this regard. The Madras High Court in, In re Nachimuthu AIR 1950 Mad 452 , rejected such an appllcation on the ground that as there was no provision of law to review orders passed by a trial court as well as the appellate court the prayer for concurrent running of sentence could not be entertained. A different view had, however, been taken in Jainta Kumar Banerjee Vs. The State, The power of ordering concurrent running of sentence was exercised in this case u/s 5618 of the the old Code which had saved inherent powers of the High Court, in respect of those sentences which were awarded by subordinate courts, while stating that this power could not be invoked as regards the sentence imposed by itself. Both these decisions (which have not delved deep into the matter) were noted in Baijnath Kurmi and Another Vs. The State, and the learned Single Judge expressed his "cordial assent'' to the view taken by the Calcutta High Court, because it was held that the order for concurrent running of sentence did not amount to altering or reviewing the judgment, which will stand as it if, and the order, passed would be a separate order and complete by itself the bar contained in Section 369 of the old Code (akin to Section 362 of the present Code) not operating in such case. It may be pointed out that power u/s 561A was drawn in this case after appeal against the second conviction was summarily dismissed, because of which it was stated that Section 397 could not assist the prisoner, as the power under that provision could not be invoked subsequent to the disposal of appeal. On merits, the case was found fit to invoke inherent power as the facts and circumstances were regarded "so coercive" as to require order of concurrent running of sentence to secure the ends of justice. Another learned single Judge of that High Court refused in Mahabir Beldar Vs. The State, to luvoke inherent power on the facts of that case by stating that the power was to be exercised very rarely and only to meet the ends of justice. The Petitioner there was a hardened criminal and had committed dacoity and allied offence a number of times, The view expressed in Baijnath was endorsed by a learned Judge of Andhra Pradesh High Court in Mullapudi Venkanna Vs. The State of Andhra Pradesh, and after referring to In re Nachumuthu (supra), it was stated that as Section 397(1) of the old Code empowered even the trial Court to order sentences to run concurrently, the High Court could not be in a were position to exercise that power by invoking its Inherent jurlidicties.

The orux of the matter was, however, touched, if I may say so with respect, in Ulfat Vs. State, which has stated that by making the subsequent sentence concurrent with the earlier one, the Court would not be reducing the Subsequent sentence, as in too eye of law, the subsequent sentence will also run for full length of time fixed for it and will not cease to run. Likewise, by ordering concurrent running sentences, the mature of the subsequent sentence will not be changed, as, if that sentence were rigorous in nature it would retain that characteristic. This view was endorsed in A.S. Naidu (Supra) by stating that exercise of power u/s 397(1) does not modify or alter the judgment as it does not affect the nature or quantum of sentence because the power given by that section pertains "to the manner of execution of the subsequent sentence rather than award of appropriate sentence according to law". It was also held in this decision that the power to order concurrent running of sentence could be exercised by the High Court, even after dismissal of appeals or revisions, u/s 397 itself, and as such the question of invoking inherent jurisdiction to pass such an order did not arise.

I have given my considered thought to this question and I say with respect that an order of the nature visualised by Section 427 does in reality affect the length of the sentence awarded for the subsequent guilt, and as such would be alteration or review of that judgment, as the total period of impriconment actually and physically undergone for both the offences (earlier and subsequent would bo quantitatively less if the sentences were to rule concurrently, and not consecutively. This aspect can be elucidated and brought home better by referring to a case where there is joint trial for several offences. In such a trial, if separate sentences are awarded for each offence, the same are to run consecutively as provided by Section 31 of the Code of Criminal Procedure, unless otherwise ordered. Now, if after judgment is delivered in which nothing is stated in this regard whereupon the law and the sentence take their own course, a direction is sought for concurrent running of the sentence, am sure the same shall have to be denied by the Court awarding the punishment, as that will alter the judgment in the sense that total period of sentence awarded would get reduced. By the same reasoning it could be contended that order of concurrent running of sentences awarded in two separate trials would amount to alteration of sentence, which would have otherwise run consecutively, and as such alteration of the judgment. The fact that power u/s 427 is an independent power has not much significance, as that provision cannot be encompassed, within the saving clause of Section 362 because it has not expressly conferred the power of altering or reviewing the judgment, which power alone can lift the ban of Section 362 as laid down, in SooraJ Devi (supra). The view that exercise of power u/s 427 appertains to the realm of "manner of execution, of the subsequent sentence rather than award of appropriate sentence" does not change the position, as, in my humble opinion, alteration of even the manner of executing a sentence would attract the ban of Section 362, to illustrate, say the Penal Code provides different means of executing a death sentence and the Court selects one of such methods. As presently advised, I would think that any change in the same would amount to alteration or review of the judgment. In such cases, the manner of execution of sentence becomes an integral and indivisible part of the sentence. The fact of passing specific order in the illustrative case, and the sentences running consecutively in the matter at hand by operation of law, that is, sub silentie, makes no difference, according to me, as the result of the two is same and and it is the result brought about by two different processes which is sought to be changed by the subsequent order.

I would, therefore, hold that it was not within the competence of the learned Assistant Sessions Judge himself to have entertained the petition in question. But than this Court can examine the same in its revisional capacity as Section 397 cm-powers it to consider, inter alia, the question of propriety of sentence would also thick that the power conferred by Section 27 could be exercised by an appellate or revisional Court (see (Sic) nath supra) though not after disposing of the appeal or revision. In any case, inherent power ran always be drawn Upon to do justice in this regard, of course, not to alter of view the judgment. This power has to vest in some forum it may be that the fact of undergoing a previously awarded sentence is not brought to the notice of the Court (as in this case) and so the subsequent sentence automatically runs consecutively, though a strong case on facts is made out for concurrence of the two sentences. A right to get such an important order cannot be put beyond the reach of the accused.

Let the merit of the case be examined now, The second conviction was u/s 324 for which the maximum sentence as provided by law (3 years) was awarded as punishment, his had been done without hearing the accused on the question of sentence as required by Section 235(2) of the Code of Criminal Procedure. The Petitioner is in the prime of his youth being around 40 by now, (Shri Khatri gives this age by relying on the age as recorded in the statement of the accused taken u/s 313 Code of Criminal Procedure in Sessions Case 126 D�1) 75). Though the learned Public Prosecutor will not like me to place full reliance on the aforesaid recorded age, I have no other material before me. The second offence was causing of simple hurt, though with a dagger. Two such hurts were caused at the back. The attack was on sudden impulse on the refusal of Bijay Sargiari, the injured (who was examined aa (P.W. 2 in the case) to come inside a hotel and to take tea frith the Petitioner. On these fact, I do not think if long incarceration of the Petitioner is a desirable object, neither crime prevention, nor reformation, calls for the same, when it is noted that he has already spent about four years behind the bars, the poverty of the Petitioner, because of which he was provided, with State deduce in both the trial, has also weighed with me, in this regard, as in case of such persons, if they are male and young (as here), long imprisonment causes great hardship to the members of the family, as, a bread earner (who may be such sole person in some cases) is then kept out of reach by the State.

Because of all these, I would allow this petition by ordering the subsequent sentence to run concurrently with the one awarded earlier.