HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 2074 / 2016 [ENTITY] S/o Jogender Singh Saini, Police Station Police Station Munak Distt. Sangrur, Punjab. Petitioner Versus [ENTITY] Respondent For Petitioner(s) : Mr. [ENTITY] For Respondent(s) : Mr. [ENTITY], PP HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Order 11/09/2017 1. The petitioner has preferred this criminal misc. petition under [SECTION] [ACT] for giving the benefits of [SECTION] [ACT] to the petitioner for concurrent running the second sentence awarded to the petitioner for the offence under [SECTION] [ACT] and 3/25 of [ACT] by this Hon'ble Court in S.B. [CASE NUMBER] by judgment dated 09.03.2015 with the judgment and sentence for offence under [SECTION], [SECTION], [SECTION] of [ACT] by judgment and sentence dated 05.04.2010 by court of ADJ, [ENTITY]. 2. The sentences awarded to the petitioner read as under: "In [CASE NUMBER] judgment dated 18.02.2011 confirm in [CASE NUMBER] by this Hon'ble High Court. Under [SECTION] [ACT] - 10 years rigorous imprisonment and fine of Rs.10,000/- in default of fine further undergo 1 month simple imprisonment. Under [SECTION] [ACT] - 3 years imprisonment (2 of 23) [CASE NUMBER]] and fine of Rs.1000/- in default of find further undergo 1 month. Where as by ADJ [ENTITY] in [CASE NUMBER] decided on 05.04.2010 awarded sentence as under: Under [SECTION] read with [SECTION] [ACT] - 10 years rigorous imprisonment and fine of Rs.10,000/- in default of fine further undergo 1 month simple imprisonment. Under [SECTION] [ACT] read with [SECTION] [ACT] - Rigorous imprisonment for six months." 3. Currently, the jail custody certificate of the petitioner reads as under: "1. Certified that, as per the jail record, Convict No.1637/C [ENTITY] son of [ENTITY], aged 30 years R/o Bhulan P.S. Khanori Distt. Sangrur (Punjab) first time convicted and sentenced on dated 07.04.2010 by the learned Court of Sh. [ENTITY], the then Addl. Sessions Judge, Hisar to undergo rigorous imprisonment for ten (10) years and to pay a fine of Rs.10,000/- in case FIR No.404 dated 21.11.2007 U/[SECTION] [ACT] P.S. Barwala Second time the said Convict was convicted and sentenced by the Ld. Court of Addl. Distt. & Sessions Judge, [ENTITY] in case FIR No.[SECTION]/2008 under [SECTION] [ACT] & 3/25 [ACT] P.S. [ENTITY] on 18.02.2011 to undergo rigorous imprisonment for Ten (10) years and to pay a fine of Rs.11,000/- (fine not paid) As per provision of [SECTION] of the [ACT], it has not been mentioned in the conviction warrant in case FIR No.[SECTION]/2008 U/[SECTION] [ACT] 3/25 [ACT] P.S. [ENTITY] (in which he was convicted second time) that this subsequent sentence shall run concurrently with the previous sentence awarded on 07.04.2010 in case FIR No.404 dated 21.11.2007 U/[SECTION] [ACT] P.S. Barwala. At present, the said convict is undergoing rigorous imprisonment for Ten years to pay a fine of Rs.10,000/- in case FIR No.404 dated 21.11.2007 U/[SECTION] [ACT] P.S. Barwala in which he was convicted first time. 2. That the period undergone by the convict as on 18.05.2016 in case FIR No.[SECTION]/2008 U/[SECTION] [ACT] 3/25 [ACT] P.S. [ENTITY] is as under:- Sr.No. Particular Period Years Months Days (I) Under trial period 27.11.2008 to 18.02.2011 02 02 22 (ii) Convicted period Nil (the awarded sentence - - - will start after the completion of sentence in (3 of 23) [CASE NUMBER]] case FIR No.404/21.11.2007) (iii) Bail period if any - - - Total Sentence = 02 02 22 (iv) Parole availed (-) Nil - - (v) Detail of Nil 00 00 00 overstay/absent from parole (vi) Actual sentence 02 02 22 3. Detail of pending cases:- : Nil 4. Detail decided cases : Nil 5. Detail of conviction in other cases: (I) Convicted and sentenced on 18.11.2010 by the Ld Court of Sh. [ENTITY], Addl. Sessions Judge, Fatehabad to undergo rigorous imprisonment for two (02) years and pay a fine of Rs.1000/- (fine paid) in case FIR No.174 dated 28.07.2008 U/s 25/54/59 of [ACT] P.S. Bhuna in which he was released on 18.11.2010 expiry of sentence after setting off undertrial period. (ii) Convicted and sentenced to pay a find of Rs.1,000/- (fine paid) by the Ld. Court of Judicial Magistrate 1 st Class, Chandigarh in case FIR No.431/2005 U/[SECTION] [ACT] P.s. Manimajra Chandigarh. 6. Detail of acquitted cases : Nil Currently, the petitioner is undergoing the aforementioned sentence awarded by the concerned Additional Sessions Judge [ENTITY]. 4. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court in the matter of [ENTITY] and another Vs. Inspector of Police, Valliyanur and others. reported in [PRECEDENT]. The judgment reads as under: "1. Leave granted. 2. Appellants in this case are two. 1st appellant- [ENTITY] was convicted in 4 different cases the occurrence in all of which took place between 27-3- 1990 and 7-5-1990. The offence found against him in (4 of 23) [CASE NUMBER]] all the cases was under [SECTION] of the [ACT] and in each case he was sentenced to undergo rigorous imprisonment for 7 years. If he is not given the benefit in exercise of the discretion conferred under [SECTION] of the [ACT], he may have to undergo a very long period of 28 years in jail. 3. The 2nd appellant-[ENTITY] was convicted in 5 different cases the occurrence in all of which took place between 21-10-1989 and 7-5-1990. He was also found guilty under [SECTION] of the [ACT] and was sentenced to undergo rigorous imprisonment for a period of 7 years in each case. If the benefit conferred under [SECTION] is not extended to him, he may have to undergo imprisonment for a total period of 35 years in jail. 4. On the other hand, we allow the appellants to have the benefit of all the sentences to run concurrently, he would be out by now after serving only imprisonment for a period of 7 years awarded in one case. Both courses are unacceptable to us and, there fore, we thought of a via-media which would be consistent with the administration of criminal justice. After bestowing our anxious consideration we thought that if the appellants would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice. 5. We, therefore, direct that the sentence imposed on the 1st appellant pursuant to the conviction passed by the Assistant Sessions Judge, Pondicherry in [CASE NUMBER] will run un-telescoped by any other sentence imposed upon him subsequently. In other words, the sentence imposed in subsequent cases would start running only on the termination of the sentence imposed upon him in the afore-mentioned case ([CASE NUMBER] on the file of Assistant Sessions Judge, Pondicherry). We also order that the sentence imposed upon him in the following 3 cases will run concurrently : 1. [CASE NUMBER] - in the Court of Sessions Judge, Tuticorin. 2. [CASE NUMBER] - in the Court of Sessions Judge, Nagarcoil. 3. [CASE NUMBER] - in the Court of Principal Sessions Judge, Nagapattinam. 6. Regarding the 2nd appellant also, we adopt the same measure and order that the sentences imposed upon him by the Assist ant Sessions Judge, Pondicherry in [CASE NUMBER] will run unaffected by (5 of 23) [CASE NUMBER]] another sentence imposed upon him subsequently. Only on the termination of the aforesaid sentence the jail authorities would start reckoning the sentence imposed on him in respect of the remaining 4 cases, which are detailed below : 1. [CASE NUMBER] - in the Court of Sessions Judge, Dindigul. 2. [CASE NUMBER] - in the Court of Sessions Judge, Tuticorin. [CASE NUMBER] - in the Court of Assistant Sessions Judge, Nagarcoil. 4. [CASE NUMBER] - in the Court of Assistant Sessions Judge, Nagapattinam. 7. We make it clear that we permit the sentences passed on the 2nd appellant in respect of above- mentioned 4 remaining cases to run concurrently. 8. Appeal is disposed of in the above terms." 5. Learned counsel for the petitioner has also relied upon the judgment of Sukhdev Singh @ Sukha Vs. [ENTITY] & Ors. reported in 2011(2) Cr.L.R. (Raj.) 1093. The relevant portion of the judgment reads as follows: "5. The purpose of imprisonment is not only to incarcerate the accused person within four walls of the jail; the purpose is to reform the convict. Further, a sentence of imprisonment has to commensurate within the offence. In the present case, the petitioner has been convicted for the offence under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] in three different cases. However, in case the sentences were not to run concurrently, the petitioner would have to serve a total of twenty eight years and six months. If life imprisonment is taken as a term of 14 years, apparently the petitioner would be sentenced to a term longer than life imprisonment. The offences under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] and [SECTION] [ACT] are not so grave that they would (6 of 23) [CASE NUMBER]] warrant a sentence of more than life imprisonment. Therefore, although [SECTION] [ACT] directs that the sentences should run consecutively, but [SECTION] also bestows a discretionary power on the Court to direct that the sentences should run concurrently, rather than consecutively. 6. The aim of imprisoning a person is not merely to dump him in a jail. The aim is equally to reform him during the period of incarceration so that he may be brought back into the society as a peace- loving and law-abiding citizen. Seven years is long enough time to reform a person. Therefore, further incarceration of the petitioner beyond seven years would not serve any fruitful purpose. Moreover, the courts cannot be ignorant of the fact that the jails are overcrowded. Therefore, taking a holistic view, this Court directs that the sentences awarded to the petitioner by [CASE NUMBER] in [CASE NUMBER] vide judgment dated 1.9.2006, Special Judge (Dacoity Affected Area), Dholpur vide judgment dated 12.5.2009 and by Additional Sessions Judge, Mogha in [CASE NUMBER] respectively vide judgment dated 2.10.2009, shall run concurrently, rather than consecutively." 6. Learned counsel for the petitioner has stated, as per the precedent law, that this Court can exercise jurisdiction for concurrent running of sentence between one court in [ENTITY], Haryana and another in [ENTITY], Hanumangarh, Rajasthan. Moreover, it is pointed out that the sentence being already undergone is in pursuant to the judgment and sentence awarded by the learned court below at [ENTITY] on 05.04.2010 and, (7 of 23) [CASE NUMBER]] therefore, the sentence which has to be concurrently running is now of the Court under the jurisdiction of Rajasthan High Court. 7. Learned Public Prosecutor has further opposed the same and has shown a judgment of Hon'ble Apex Court in the matter of [PRECEDENT] decided on 03.10.2016 in [CASE NUMBER] arising out of [CASE NUMBER]. The relevant portion of the judgment reads as under: "The maximum sentence in respect of the present crimes is two years' rigorous imprisonment. As per the record, these crimes were committed on the same day. Having considered the matters, we deem it appropriate to direct that the sentences imposed in each of the cases, i.e. (I) [CASE NUMBER], (ii) [CASE NUMBER], (iii) [CASE NUMBER] and (iv) [CASE NUMBER] namely those at Sl. Nos. 9 to 12 respectively as indicated in the sentence chart in the communication dated 27.05.2016 shall run concurrently with the sentence imposed in Crime No.8 which is currently operative. We grant his benefit in respect of substantive sentences to the appellant but maintain the sentences of fine and the default sentences. If the fine as imposed is not deposited, the default sentence or sentences will run consecutively and not concurrently." 8. This Court has seen that [SECTION] [ACT] clearly mandates that the subsequent sentences shall run concurrently. 9. Learned counsel for the petitioner has also shown the judgment of Division Bench this Court in the matter of Arjun Ram vs. [ENTITY] & Ors. reported in 2016 0 Supreme(Raj) 6. The judgment reads as under: (8 of 23) [CASE NUMBER]] "1. This reference is before us to adjudicate the following question:- "WHETHER, the High Court exercising powers under [SECTION] [ACT], invoke [SECTION] [ACT] and order that sentences awarded in two different cases shall run concurrently." 2. While making reference of the question to Larger Bench, the learned Single Bench observed as under:- "The Hon'ble Supreme Court in the case of [ENTITY] Vs. State of Andhra Pradesh 2007 R.Cr.D. 236 (SC)] held that the High Court cannot exercise its inherent jurisdiction under [SECTION] [ACT] To order that sentences awarded in two different cases shall run concurrently under [SECTION] [ACT] It was also held that power under [SECTION] [ACT] can only be exercised by the Court, while exercising jurisdiction, as Appellate Court or revisional Court. Relying upon judgment of [ENTITY] [supra] a Full Bench of the High Court of Punjab & Haryana in the case of [ENTITY] Vs. State of Punjab, decided on 18.10.2007, reported as [PRECEDENT], held that the power to make sentences concurrent under [SECTION] [ACT] cannot be exercised by the Court under [SECTION] [ACT] A Single Bench of this Court [Hon'ble Mr. Justice [ENTITY]] in [CASE NUMBER], decided on 03.09.2013, relying upon a Division Bench judgment of this Court in [ENTITY] Vs. [ENTITY], 2003 Cr.L.J. 4599 (Raj.) and in [ENTITY] [supra] also held as under:- "It has been admitted by the learned Advocate for the accused-petitioner in this Court that in all the four cases appeals of accused-petitioner [ENTITY] have either been dismissed or he has not appealed against the judgment of the trial Court. In such a case benefit of concurrent sentences under the provisions of [SECTION] [ACT] cannot be ordered by this Court at this stage even with the help of [SECTION], [ACT] looking to the specific mandate of law propounded in the cases of [ENTITY] [By Supreme Court] and [ENTITY] [Division Bench judgment of Rajasthan High Court (supra)]." (9 of 23) [CASE NUMBER]] 3. On citing a view different taken in eight other cases by different Single Benches of this Court, learned Single Bench considered it appropriate to have opinion of Larger Bench. 4. While adjudicating the issue, at the first, we deem it appropriate to look at the view taken by a Division Bench of this Court in the case of [ENTITY] (supra) on basis of which [CASE NUMBER] was decided on 3.9.2013. In the case aforesaid the Division Bench was examining an issue with regard to modification in a judgment that acquired finality upto the Apex Court, wherein a trial Judge ordered that the sentence shall run consecutively which implied incarceration of the convict for a period of 27 years. By a parole petition a prayer was made to convert the consecutive sentence in concurrent one. While dismissing the parole petition the Division Bench found it "unable to exercise inherent powers". No reason is given to show that inability, but from perusal of the given facts, it appears that the court was convinced that the trial court passed the order by adequate application of mind and no error was committed while exercising discretion as per [SECTION] [ACT]. In any case the Division Bench has shown its inability in exercising its inherent powers but has not clipped authority to exercise such power in each and every case of such nature. 5. Shri [ENTITY], learned counsel appearing on behalf of the petitioners submits that the reference made deserves to be answered in the terms that the powers under [SECTION] [ACT] are quite wide and a High Court is having ample power to invoke the same to prevent the abuse of the process of any court or otherwise to secure the ends of justice. According to learned counsel the courts while passing sentence may not be aware of the sentence awarded earlier and may also be ignorant about mentioning the mode of undergoing sentence, hence, by exercising powers under [SECTION] [ACT] a court may examine effect and impact of the sentences which are to be served consecutively, and pass an appropriate order to secure the ends of justice. 6. Heard learned counsels. 7. Before coming to other merits, we deem it appropriate to understand the powers of a High Court under [SECTION] [ACT], which reads as under:- "482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any (10 of 23) [CASE NUMBER]] Court or otherwise to secure the ends of justice." 8. A plain reading of this provision discloses that it is a clause saving powers of High Court necessary to be invoked to prevent abuse of the process of any court and also to secure the ends of justice. The Supreme Court examined scope and amplitude of this provision in several cases. In [PRECEDENT], the Apex Court held as under:- "49. [SECTION] of the Code, as its very language suggests, saves the inherent power of the High Court which it has by virtue of it being a superior court to prevent abuse of the process of any court or otherwise to secure the ends of justice. It begins with the words, 'nothing in this Code' which means that the provision is an overriding provision. These words leave no manner of doubt that none of the provisions of the Code limits or restricts the inherent power. The guideline for exercise of such power is provided in [SECTION] itself i.e., to prevent abuse of the process of any court or otherwise to secure the ends of justice. As has been repeatedly stated that [SECTION] confers no new powers on High Court; it merely safeguards existing inherent powers possessed by High Court necessary to prevent abuse of the process of any Court or to secure the ends of justice. It is equally well settled that the power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party. It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code. 50. In different situations, the inherent power may be exercised in different ways to achieve its ultimate objective. Formation of opinion by the High Court before it exercises inherent power under [SECTION] on either of the twin objectives, (i) to prevent abuse of the process of any court or (ii) to secure the ends of justice, is a sine qua non. 51. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex aliquid alicui concedit, (11 of 23) [CASE NUMBER]] concedituretid sine qua res ipsa esse non potest. The full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under [SECTION] of the Code is of wide amplitude but requires exercise with great caution and circumspection. 52. It needs no emphasis that exercise of inherent power by the High Court would entirely depend on the facts and circumstances of each case. It is neither permissible nor proper for the court to provide a straitjacket formula regulating the exercise of inherent powers under [SECTION]. No precise and inflexible guidelines can also be provided." 9. In [PRECEDENT], also the Apex Court examined the provisions of [SECTION] [ACT] and held as under:- "6. Last, but not least in our appreciation of the law, [SECTION] of the [ACT] stands in solitary splendour. It preserves the inherent power of the High Court. It enunciates that nothing in the [ACT] shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary, firstly, to 'give effect to any order under the [ACT]', words which are not to be found in the [ACT] (hereafter referred to as '[ACT]'). Ergo, the High Court can, while exercising inherent powers in its criminal jurisdiction, take all necessary steps for enforcing compliance of its orders. For salutary reason [SECTION] makes the criminal Court much more effective and all pervasive than the civil Court insofar as ensuring obedience of its orders is concerned. Secondly, [SECTION] clarifies that the [ACT] does not circumscribe the actions available to the High Court to prevent abuse of its process, from the inception of proceedings till their culmination. Judicial process includes compelling a (12 of 23) [CASE NUMBER]] respondent to appear before it. When the Court encounters a recalcitrant Appellant/convict who shows negligible interest in prosecuting his appeal, none of the Sections in [SECTION] of the [ACT] dealing with appeals, precludes or dissuades it from dismissing the appeals. It seems to us that passing such orders would eventually make it clear to all that intentional and repeated failure to prosecute the appeal would inexorably lead not merely to incarceration but more importantly to the confirmation of the conviction and sentence consequent on the dismissal of the appeal. Thirdly, none of the provisions of the [ACT] can possibly limit the power of the High Court to otherwise secure the ends of justice. While it is not possible to define the concept of 'justice', suffice it to say that it encompasses not just the rights of the convict, but also of victims of crime as well as of the law abiding section of society who look towards the Courts as vital instruments for preservation of peace and the curtailment or containment of crime by punishing those who transgress the law. If convicts can circumvent the consequence of their conviction, peace, tranquility and harmony in society will be reduced to a chimera. [SECTION] emblazons the difference between preventing the abuse of the jural process on the one hand and securing of the ends of justice on the other. It appears to us that [SECTION] of the [ACT] has not been given due importance in combating the rampant malpractice of filing appeals only for scotching sentences imposed by criminal Courts." 10. In [PRECEDENT], the Apex Court held that the inherent power is to be exercised ex debito justitiae, to do real and substantial justice for administration of which alone courts exist. Whenever any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent the abuse. 11. In [PRECEDENT], it was held that inherent power must be utilised with the sole purpose of preventing the abuse of the process of court or to otherwise serve the ends of justice. In exercise of inherent powers proper scrutiny of facts and circumstances of the case concerned are absolutely imperative. (13 of 23) [CASE NUMBER]] 12. In [PRECEDENT], it was held that saving of the High Court's inherent powers under [SECTION] [ACT] is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The ends of justice are higher than the ends of mere law though justice has got to be administered according to the laws made by the legislature. Without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction. 13. In [PRECEDENT], the Apex Court laid down certain governing principles to exercise authority under [SECTION] [ACT] by High Courts and those can be summarised as under:- 1. Power is not to be resorted, if there is a specific provision in the [ACT] for redressal of grievances of the person aggrieved; 2. It should be exercised sparingly only to prevent abuse of process of any Court or otherwise to secure the ends of justice; and 3. It should not be exercised against the express bar of law. 14. With these checks, it can be said that the High Court may invoke its inherent jurisdiction saved under [SECTION] [ACT] to give effect to an order under [ACT] to prevent abuse of process of the court and to secure the ends of justice. The jurisdiction available is quite wide and it demands that a Constitutional Court of law must keep in mind that it is also a Court of Justice and must exercise its inherent powers to remove injustice or to secure the ends of justice and a High Court while exercising these powers may make such order or orders as may be necessary to prevent miscarriage of justice. By keeping in mind these parameters to exercise the inherent jurisdiction of High Court saved under [SECTION] [ACT], the issue under consideration deserves to be examined. 15. The issue under consideration before us is whether the High Court can invoke its inherent powers to invoke [SECTION] [ACT] and order that the sentences awarded in two different cases shall run concurrently. The reference so made is essentially based on the judgment given by Hon'ble Supreme Court in the (14 of 23) [CASE NUMBER]] case of [ENTITY] v. State of Andhra Pradesh (2007 Cr.L.J. 763). Hon'ble Supreme Court in this case was adjudicating an order passed by the High Court on an application preferred under [SECTION] [ACT]. In the case aforesaid a bank employee was subjected to trial for two criminal cases and was convicted for the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] read with [SECTION] of the [ACT]. In both the cases learned trial court opined that the accused did not deserve any sympathy and deserves to undergo sentence consecutively. This fact indicates that the trial court examined the issue with regard to exercise of discretion as per [SECTION] [ACT] and further the conviction recorded and sentence imposed remained intact uptil the highest court. An application subsequently was preferred to have an order for undergoing sentence concurrently. In such circumstances the Apex Court while rejecting such application held as under:- "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] 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] would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court." 16. Suffice to mention that in the case of [ENTITY] (supra) the Apex Court while examining peculiar facts of that case did not measure scope of [SECTION] [ACT]. It was not necessary too as in that case the trial court after examining the submission relating to [SECTION] [ACT] arrived at the conclusion that the accused does not deserve any sympathy, meaning thereby, the court considered that aspect of the matter by due application of mind and that order acquired finality being affirmed by Supreme Court. No occasion, as such was there to reexamine the issue. 17. The other judgment on which learned Single Bench while making reference relied upon is [ENTITY] v. State of Punjab. In this case accused [ENTITY] was convicted for several offences in two different trials. He preferred a criminal miscellaneous petition under [SECTION] [ACT] to have direction to run the sentences (15 of 23) [CASE NUMBER]] concurrently. A Division Bench before which the application came up sought guidance from Larger Bench in following terms:- "It is clear from these judgments (supra), that though the Court has discretion to convert consecutive sentences into concurrent when two different offences have been committed, but the principles, method and in what manner this judicial discretion is to be exercised, has not been laid down." 18. The Full Bench after examining the entire issue settled the principles for exercising discretion under [SECTION] [ACT] and those are as under:- "It may, thus, emerge that discretion to make the sentences to run consecutively or concurrently would be governed by different consideration, like facts of each case, nature and character of the offences, criminal history sheet and record of the offender, his age, sex. In our view, these considerations would appear relevant for the exercise of discretion by the courts under [SECTION] [ACT] It is not possible to exhaustively lay down all the factors that may be relevant to be taken into consideration and basically it would depend upon facts of each case to be so noted by the Court while exercising its discretion in this regard. It may, however, need to be noted that normal rule under [SECTION] [ACT] appears to be consecutive sentences. It is thereafter discretion is given to the sentencing Court to direct concurrency. It may also have to be kept in view that if principle of concurrency is applied in case where the offender is habitual, it may repel the very basic and the normal rules as laid down in [SECTION] [ACT] If such principles are universally applied unmindful to such consideration of the offender being habitual, then it may lead to hostile discrimination negatively because then it would amount to giving similar treatment to a normal as well as a habitual offender. Accordingly, segregation of the habitual offender by making them to undergo sentences consecutively can also be accepted as principle." 19. The Full Bench as a matter of fact found itself bound by the view taken by the Hon'ble Apex Court in the case of [ENTITY] (supra) without taking notice of the fact that in that case Apex Court was examining peculiar facts without (16 of 23) [CASE NUMBER]] examining the scope of the inherent powers of High Court saved under [SECTION] [ACT]. 20. The Full Bench while laying down the principles to exercise discretion under [SECTION] [ACT], while relying upon the observations made in [ENTITY]'s case (supra), held that the discretion as per [SECTION] [ACT] is available with the trial court, appellate court or the revisional court, but not to the High Court while exercising powers under [SECTION] [ACT]. 21. A Full Bench of Allahabad High Court in Mulaim Singh v. State, reported in 1974 Cr.L.J. 1[SECTION], examined the issue in question in detail and arrived at the conclusion as under:- "12.
whether as an original court or as an appellate court, it is the duty of the Court dealing with the subsequent trial to apply its mind to the question whether the sentence on subsequent conviction should be made concurrent with the previous sentence and if the Court for one reason or the other fails to apply its mind to that, question, it would be in the interest of justice that the High Court rectifies that mistake under its inherent power. In such a situation the Court would not be acting contrary to any provision of the Code or against any express or implied prohibition contained in it.
(Emphasis given by us.)
13. It would be an exercise in futility to lay down exhaustively the situations and circumstances in which the exercise of inherent power would be justified. However, it must be borne in mind that the general scheme of the Code is that the sentence awarded at a subsequent trial shall commence at the expiration of the imprisonment to which the accused has been previously sentenced. The discretion conferred on the Court under [SECTION] has to be exercised on some judicial principle. If a situation arises, for invoking the inherent power of the Court under Section 561- Aof the Code, the Court has to see whether the circumstances and the object for which the inherent power is to be exercised are in existence and can be achieved. It is equally (17 of 23) [CASE NUMBER]] well established that the inherent power is to be exercised to do the right and to undo a wrong in the course of administration of justice and this power ought to be exercised sparingly only when the Court feels that the ends of justice require it and not as a matter of routine."
22. A Division Bench of Madras High Court in [ENTITY] v. The Secretary, State of T.N., Home Department, Chennai, reported in 2014 Cr.L.J. 2140, by keeping in mind the law laid down by Apex Court in [ENTITY] (supra) and also by taking into consideration the Full Bench judgment of Punjab & Haryana High Court in the case of [ENTITY] (supra), held as under:-
"4. It is the grievance of the petitioner [detenu] that the two life sentences should have been directed to run concurrently in terms of [SECTION] [ACT] It appears from the records that this petitioner had made a similar request by filing an application by invoking the jurisdiction of this Court u/[SECTION] [ACT], in [CASE NUMBER] in [CASE NUMBER], before this Court, which came to be dismissed on 15.03.2010. This Court had relied upon the judgment of the Hon'ble Apex Court in M.R. [ENTITY] v. State of Andhra Pradesh [2007 [1] SCC [Cri.] 648] : (AIR 2007 SC 568) and had dismissed the prayer on the ground that this plea should have been taken only before the trial court and cannot be taken up by way of a petition u/[SECTION] [ACT] It may be relevant to state here that a three Judges Bench of the Hon'ble Apex Court in State of Punjab v. [ENTITY] [2009 (5) SCC 238] : ([PRECEDENT] has refused to interfere with an order of Punjab and Haryana High Court passed under [SECTION] [ACT], whereby the sentences were directed to run concurrently under [SECTION] [ACT], in a matter relating to an accused who was convicted and sentenced for offences under [SECTION] of the [ACT] in three different cases. The conflicting views between the judgment in [ENTITY]'s case [which is by a two Judges Bench] and [ENTITY]'s case ([PRECEDENT] [which is by a three Judges Bench] was considered by a Division Bench of this Court in K. Arasan v. State of Tamil Nadu [2012 (6) CTC 510] and this Court held that a prisoner can invoke the [SECTION]] jurisdiction of this Court under [SECTION] [ACT] in a case where both the trial Court and the First Appellate Court or the Revision Court, as the case may be, had failed to give the benefits under [SECTION] [ACT] in the judgment. Had, either the trial Court, appellate Court or revisional Court, consciously applied its mind under [SECTION] [ACT] and denied the benefits to a prisoner, then the prisoner cannot invoke [SECTION] [ACT] to once again review that portion in the judgment, for, that would be a bar under [SECTION] [ACT] This Court further held that, while granting the discretionary relief, the Court should bear in mind the gravity of the charge levelled against the accused in each case. In the present case, [SECTION] [ACT] will have no application and therefore, neither [ENTITY]'s case nor [ENTITY]'s case will have any bearing. In the facts of this case, [SECTION] [ACT] will apply. [SECTION] [ACT] reads as under:
"427. Sentence on offender already sentenced for another offence:- [1]
[2] When 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."
This Section, in no uncertain terms shows that a prisoner will be entitled to have two life sentences, imposed on him in different cases, to run concurrently. This provision stands to common sense and logic. There is a subtle distinction between [SECTION] and [SECTION], [ACT] Under [SECTION], [ACT], if the life sentence is awarded to a prisoner already undergoing a lesser sentence, then the subsequent life sentence will start running only after the expiry of the lesser sentence unless directed by the Court otherwise. Under [SECTION], [ACT], if the life sentence or lesser sentence is awarded to a person who is already undergoing life sentence, then the subsequent sentence, be it life or lesser, shall run concurrently with the earlier life sentence. In [PRECEDENT] the Constitution Bench of the Supreme Court held that a sentence for imprisonment for life means imprisonment for the whole of the remaining period of the convicted person's natural life. The concept of consecutive running of two or more life sentences has received judicial imprimatur at the hands of the Supreme Court of India in [PRECEDENT], where the consecutive life sentences awarded on the accused by the trial court was confirmed by this Court in appeal as well by the Apex Court. That was a case where, in the same trial the accused therein were charged for various offences like [SECTION] and [SECTION], [ACT] and were awarded life imprisonment, which were directed to run consecutively under [SECTION], [ACT] In this case, the prisoner herein, was awarded life imprisonment by two different Courts in two different cases and therefore, [SECTION], [ACT] will not apply.
5. [SECTION], [ACT] is a direction to the prison authorities to treat two life imprisonments as concurrent and there is no scope for Court's charity here, because it is a legislative guarantee. The Courts cannot take away this right nor the jail authorities deny the prisoner this right. It is manifestly clear that the prisoner need not have to invoke any jurisdiction, be it under [SECTION], [ACT] or under [SECTION] of the [ACT], and cringe for mercy to have two life sentences run concurrently. Unfortunately in this case, the prisoner filed application in [CASE NUMBER] in [CASE NUMBER] without understanding the scope of [SECTION], [ACT], and obtained negative order from this Court on 15.03.2010. One can understand that the detenu may not be conversant with the nuances of law. Ignorantia juris non excusat [Ignorance of law is not an excuse] applies rigorously to the learned than to the lay. Even the prison authorities, who would have otherwise given the benefits of [SECTION], [ACT] automatically, will now remain hands tied and will be wondering as to when and where the prisoner will be undergoing the second life sentence after completing the first stint.
(20 of 23) [CASE NUMBER]]
6. We ask this question to ourselves as to how we can now cut the Gordian knot to release the prisoner from this legal mess? In our opinion, the order dated 15.03.2010 passed by this Court in [CASE NUMBER] in [CASE NUMBER] is per incuriam, because it has ignored the mandates of [SECTION], [ACT] and had relied upon the Apex Court judgment in [ENTITY]'s case, which was one under [SECTION], [ACT] In [PRECEDENT] the Constitution Bench of the Supreme Court explained the concept in the following words:
"'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."
7. The maxim Actus Curiae Neminem Gravabit [An act of the Court shall prejudice no man] will surely come to our rescue in this case. [SECTION], [ACT] will not hinder us, because we are not in any way altering the substantive portion of the trial Court judgment or the appellate Court judgment that imposed the second life sentence on the prisoner. Sitting in the HCP jurisdiction, we have as our hand tool [SECTION] of the [ACT] with which we propose to do justice to the prisoner by simply saying that he will be entitled to the benefits of [SECTION], [ACT] We are not conferring any new benefit on him and we are only re-stating the legal position in order to dispel confusion in the minds of the prison authorities on account of the order dated 15.03.2010 passed by this Court."
23. True it is, in the case of [ENTITY] (supra) the Division Bench of Madras High Court held that the order passed by Single Bench of that Court was per incuriam because that ignored the mandate of [SECTION] [ACT], but at the same time invoked inherent powers of High Court to meet the ends of justice and also to untied the Gordian knot to release the prisoner from a legal mess. The court while doing so also observed about availability of remedy under [SECTION] [CASE NUMBER]] the [ACT] for redressal of the grievances of aggrieved person and to secure ends of justice.
24. Reference of the judgment given by the Hon'ble Apex Court in [PRECEDENT], is also desirable here, wherein the court examined the question that whether the High Court was right in declining the prayer made by the appellant for a direction in terms of [SECTION] read with [SECTION] [ACT] for the sentences awarded in connection with the cases under [SECTION] of the [ACT]. In the case aforesaid the Punjab & Haryana High Court dismissed the miscellaneous applications moved under [SECTION] [ACT] which were filed alongwith the revision petitions questioning correctness of the conviction recorded and sentence imposed. Hon'ble Supreme Court concluded that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction, no matter different complaints in relation thereto may have been filed. The Supreme Court in this case though did not examine the authority available to High Court under [SECTION] [ACT], but certainly interfered with the order rejecting the miscellaneous criminal petition preferred under the provision aforesaid.
25. As per [SECTION] [ACT], in normal course a person already undergoing a sentence of imprisonment, if sentenced on a subsequent conviction to imprisonment, such imprisonment commence at the expiration of the imprisonment to which he has been previously sentenced, but the court in its discretion based on settled principles may direct that the subsequent sentence shall run concurrently with previous sentence. While exercising such discretion, the trial court, appellate court or revisional court, as the case may be, keeps in mind several factors. While examining such factors, the possibility of some error cannot be ruled out. Not only the error, but absolutely non-consideration of the issue about invoking this discretion, may also be there and that may cause great injustice. In general, it can be said that every provision of law is meant to impart justice and to ensure fair and objective treatment with every subject, but while doing so, the chances of causing injustice or failure in extending complete justice cannot be denied. To meet such an eventuality the inherent powers like [SECTION] [ACT] are meant and those are always open to be invoked to prevent abuse of process of court and secure the ends of justice. The inherent jurisdiction is having a very large amplitude but should always be exercised cautiously and only to prevent miscarriage of (22 of 23) [CASE NUMBER]] justice. While keeping in mind that the inherent powers must be exercised sparingly, the court should not restrain itself to invoke the same if any injury is caused to the justice.
26. We are of considered opinion that to meet the ends of justice and to rectify the gross error the powers under [SECTION] [ACT] can be exercised, if court arrives at a conclusion that the trial court, appellate court or the revisional court, as the case may be, failed in completing the circuit of justice while invoking/not invoking the discretion vested with it as per [SECTION] [ACT]. The court while doing so must keep in mind all necessary ingredients and precedents which are to be taken into consideration to exercise the discretion as per [SECTION] [ACT].
27. The reference made by learned Single Bench is answered accordingly. Let the Criminal Miscellaneous Petitions be listed before learned Single Bench for their adjudication on merits."
10. This Court finds that the previous judgment passed by the learned Additional District Judge, [ENTITY], Haryana was in the State of Haryana and thus, this Court could exercise its powers which is strictly passed under territorial jurisdiction. It is also observed that concurrent running of sentence is always of the subsequent judgment and in this case, the subsequent judgment is of [ENTITY] and in fact from the custody certificate, it is clear that the present petitioner is undergoing imprisonment in [ENTITY] which is in pursuance of the previous sentence. Since this Court of [ENTITY] does not have any finding regarding the previous sentence, therefore, the question of territorial jurisdiction would arise as the orders passed are strictly pertaining to concurrent running of subsequent judgment passed by the learned court below at [ENTITY].
(23 of 23) [CASE NUMBER]]
11. Thus, this Court of the opinion that in the spirit of precedent law as cited above, it will be appropriate to allow the present misc. petition and the same is accordingly allowed and it is directed that the sentences awarded to the petitioner in [CASE NUMBER] passed by learned Additional District Judge, [ENTITY] dated 18.02.2011 and confirmed in [CASE NUMBER] shall run concurrently to the judgment of sentences awarded in [CASE NUMBER] passed by learned Additional District Judge, [ENTITY], Haryana vide order dated 05.04.2010. However, in relation to the sentences which the petitioner has been directed to undergo, the default of payment of fine shall not be effected by this direction and the petitioner shall not pay the fine as directed by the trial court otherwise the said sentence would run consecutively.
(DR. [ENTITY] zeeshan/