1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 2017 of 2010 Vishal Shankar Dhanke ..VERSUS.. State of Maharashtra, through Supdt. Of Prison, Amravati. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Ms. S. B. Saikhede, Advocate for the applicant. Mr. M. J. Khan, A.P.P. for the respondent/State. CORAM : Prasanna B. Varale, J. DATED : 13 th April , 2011 . 1. Heard Ms. S. B. Saikhede, learned Advocate for the applicant and Mr. M. J. Khan, learned APP for the respondent/State. 2. By the present application, the applicant is seeking direction to the respondent – Superintendent, Central Prison, Amravati for running the sentences awarded to the applicant for two different offences, concurrently, by invoking the provisions of Section 482 read with Section 427 of Criminal Procedure Code. 3. The applicant was convicted by the learned Sessions Court, Amravati for committing offence punishable under Section 395 of I.P.C. The applicant was also convicted by the judgment and order passed by learned Judicial Magistrate, First Class, Pulgaon, dated 05/3/2004 in Regular Criminal Case No. 102/2001 for committing offence punishable under Section 379 of I.P.C., which was confirmed by the learned Sessions Court, Wardha by its judgment and order in Regular Criminal Appeal No. 10/2004, dated 22/9/2009. Thereafter, the 2 applicant preferred an appeal against the judgment and order of conviction awarded by the Sessions Court for the offence punishable under Section 395 of I.P.C., before this Court, but the same was dismissed by the judgment and order dated 28/3/2008. 4. Ms. Saikhede, learned Advocate for the applicant/accused submitted that the applicant has been convicted for the offence punishable under Sections 395 and 379 of I.P.C. and awarded sentence of rigorous imprisonment for ten years and one year, respectively. The learned Advocate further submits that it will be appropriate if respondent no.2 is directed and thereby the applicant is allowed to undergo both the sentences simultaneously/concurrently. With these submissions, the learned Advocate for the applicant has prayed for allowing the application. 5. Per contra, learned APP for the State has submitted that the applicant had challenged the order of conviction passed by the learned J.M.F.C, Pulgaon in Regular Criminal Case No. 102/2001, dated 05/3/2004 by filing Criminal Appeal No. 10/2004 before the learned Sessions Court, Wardha and the learned 1st Ad-hoc Additional Sessions Judge, Wardha, by judgment and order dated 22/9/2009, dismissed the appeal by confirming the order of conviction. The learned APP further submitted that the applicant had also preferred Criminal Appeal No. 56/2007 along with other accused persons before this Court, wherein he was appellant no.4. In the said appeal, the applicant was awarded conviction under Section 395 of I.P.C. and sentenced to undergo rigorous imprisonment for five years along with fine of Rs.1000/-. The learned APP further submits that the State of Maharashtra had also preferred Criminal Appeal No. 330/2007 for enhancement of the sentence awarded to the applicant/accused. This 3 Court (Coram : A.P.Lavande and A.B.Chaudhari, JJ.), by a common judgment and order dated 28/3/2008, dismissed the appeal preferred by the applicant/accused and allowed the appeal preferred by the State and the sentence of R.I. for five years was enhanced to R. I. for 10 years with fine of Rs.5000/-. 6. Mr. Khan, learned APP has submitted that as separate conviction and separate sentences were awarded in two distinct and different offences, the prayer of the applicant for direction to the respondent no.2 to run the sentences simultaneously/concurrently by invoking the provisions of Section 427 of Code, cannot be allowed. According to him, the applicant ought to have invoked the provisions of Section 427 of Code in the original case or at the stage of appeal. In view of the fact that the appeals preferred by the applicant have been dismissed by the first appellate court and this Court, the application of the applicant is not maintainable. 7. In support of his submission, the learned APP has placed reliance on the judgment of the Apex Court in the case of M. R. Kudva .vs. State of Andhra Pradesh, reported in 2007 Cri.L.J. 763. It will be useful to refer the observations of the Apex Court at para 11 of the judgment, which reads thus - “11. However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. 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 482 of the Code was, therefore, not an appropriate remedy having regard to the 4 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 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed.” 8. In view of the facts of the matter, which are mentioned above and the judgment of the Apex Court in M. R. Kudva's case, I find considerable merit in the submissions of learned APP. It is not in dispute that the applicant has not invoked the provisions of Section 427 of the Code either at the stage of decision of the original cases or in the appeals. 9. In view of these facts, the application as such is devoid of any merit and deserves to be rejected. In the result, the criminal application is rejected and disposed of accordingly. JUDGE Diwale