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Judgment
K.L. Srivastava, J.
This is an application for a direction that the sentences on subsequent convictions be made to run concurrently with the previous ones.
Circumstances giving rise to the application are these. In respect of different offences committed by the applicant on different dates he stands convicted and sentenced by the Judicial Magistrate First Class, Sonkutch as detailed below:
Case No. Place of offence property involved
Offence under I.P.C. of which convicted.
Month & Year of Offence, Date of sentence sentence awarded.
(1)
(2)
(3)
Cr. Case No. 68/84 village Surjana household goods worth Rs. 100/-
380 & 457
December 1983 22.8.1984 R.L. for 1 year on each count. Concurrent
Cr. Case No. 65/84 village Surjana household goods worth Rs. 860/-
380 & 457
May 1983 29.8.1984 R.I. for 1 year on each count. Concurrent.
Cr. Case No. 69/84 village Ektera Starter worth Rs. 500/-
380 & 457
July 1983 5.12.1984 R.I. for 6 months & fine of Rs. 100/-on each count. Concurrent.
Cr. Case No. 66/84 village Surjana household goods worth Rs. 155/-
380 & 457
August 1983 20.12.1984 R.I. for 6 months & fine of Rs. 100/-on each count.
Cr. Case No. 64/84 village Surjana household goods worth Rs. 300 400,
380 & 457
March 1984 1.4.1985 R.I. for 6 months & fine of Ra.l00/-on each count.
Cr. Case No. 189/84 village Surjana clothes & ornaments.
380 & 454
July 1979 17.4.1985 R.I. for 6 months & fine of Rs. 500/-on each count.
Cr. Case No. 135/84 village Balod
380 & 454
September 1983 24.8.1985 R.I. for 6 months & fine of Rs. 100/-on each count.
Cr. Case No. 292/85 village MaverKhedi
392
January 1985 12.9.1985 R.I. for 1 year & fine of Rs. 100/-
The point for consideration is whether the petition deserves to be allowed.
Section 31 of the Criminal Procedure Code, 1973 (for short ''the code'') provides that in the event of conviction at one trial of two or more offences the trial court has the discretion to direct that the sentences in respect of different offences shall run concurrently. Similarly section 427(1) of the Code embodies the relevant provision regarding term of imprisonment on subsequent conviction to be consecutive in the absence of discretionary direction by the court that it shall run concurrently and reads thus:
S. 427 Sentence on Offender already sentenced for mother 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.
It may be pointed out here that in the decision in Bhagirath''s case, 1985 C.Cr.J. (S.C.)335, with reference to section 428 of the Code it has been held that imprisonment for a term includes-imprisonment for life.
Reference at this very stage may also be made to section 64 of the Indian Penal Code. It provides that it shall be competent to the court which sentences an offender to direct by the sentence that in default of payment of fine, the offender shall suffer imprisonment for a certain term which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of sentence. Construing section 427 of the Code in the context of the first proviso and section 64 I.P.C. it has to be held that the former pertains to substantive sentence of imprisonment and not to the sentence of imprisonment in default of payment of fine.
In the decision in Jagannath''s case (1967 JLJ SN 21) it has been held that the power u/s 397(1) of The repealed Code of 1989 corresponding to The provision u/s 427(1) of the current Code could only be exercised at the time of judgment and not afterwards when the Court becomes functus officio. Similar is the view taken in F.B. decision in Allahabad High Court in Mulaim Singh Vs. State, and in Mahabir Beldar Vs. The State, . The aforesaid view in Jagannaths case (supra) has been overruled by the D.B. decision in A.S. Naidu Vs. The State of Madhya Pradesh, .
In F.B. decision in Gapal Dass Vs. The State, the aforesaid decision in Naidu Postmaster''s case has been referred 10 and it has been held that it is no longer a good law in view of the Supreme Court judgment in Bijaisingh''s case (Cr. A.2/64 decided on 26-2-1964).
In the decision in Gopaldas''s case (supra) it has been pointed out that inherent powers of the High Court inhere in it because of its being at the apex of the judicial set up in a State and are preserved to be exercised in making such orders as may be necessary to give efface to any order under the Code or to prevent abuse of the process of The Court or otherwise to secure the ends of justice and where the Courts below have not exercised The discretion u/s 427(1) of the Code neither of the three situations arises. According To this decision where remedy of appeal or revision is not availed of power u/s 482 cannot be exercised to direct subsequent sentences to run concurrently with the earlier sentences. However, the decision points out that in suitable cases the court may treat a petition u/s 482 as a revision petition u/s 397 and grant necessary relief.
It may be pointed out that the provision in section 482 of the Code is very widely worded and starts with the words nothing in The Code shall be deemed to limit affect the inherent powers of The High Court. Therefore, it cannot be treated as an inflexible rule that power u/s 482 of The Code cannot be exercised in regard to matters expressly provided for by other provisions of the Code. As pointed out in the decision in Puranchand''s case (1987 MPLJ 482) ends of justice are higher than the ends of mere law though justice has got to be administered according to the relevant taws made by the I Legislature. Therefore even where the law provides a remedy but the same not having been availed of as provided by law, is lost it is still open to the High Court to invoke its inherent powers in exceptional cases in order to meet the ends of justice. It must be remembered that powers u/s 482 are extraordinary powers, and are not to he exercised in a routine manner as appellate or revisional powers. The crucial question in invoking section 482 of the Code is not essentially one of jurisdiction but is that of judicial discretion. Any other interpretation may in my view, tend to defeat the very purpose envisaged by the Legislature in enacting the provision embodied in section 482 of the Code.
In the instant case the real question therefore, is whether this court should step in and exercise its discretion u/s 482 of the Code.
The offence of which the applicant aged 25 years was first convicted is of the year 1979. His subsequent prosecution and conviction only reveal that despite his earlier prosecution, he continued with his criminal activities. The conclusion is irresistible that the applicant is a person of Criminal propensities. On a c it mutative consideration of the facts and circumstances of the cast and also of the criminal concerned, it cannot be legitimately held that it is in the interest of justice, that a direction that the sentences passed on subsequent conviction should be ordered to run concurrently should be made.
In the result the application fails and is dismissed. It is however, directed that as provided u/s 31 of the Code the sentences passed in Criminal Case No. 189/84 in respect of offences under sections 380 & 454 IPC shall run concurrently and so also the sentences in Criminal Cases Nos. 64/84, 66/84 and 135/84 in respect of offences under sections 380 and 457 IPC.