IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM M-2514 of 2009 (O/M). Date of Decision : November 23, 2009. Piara ...... Petitioner(s). Versus. State of Punjab ...... Respondent(s). CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present: Mr. Ashok Giri, Advocate, for the petitioner. Mr. A.S. Rai, A.A.G. Punjab, for respondent-State. AUGUSTINE GEORGE MASIH, J. This petition under Section 482 Cr.P.C. has been preferred by the petitioner, praying for issuance of directions in exercise of powers under Section 427 Cr.P.C. in case F.I.R. No. 187, dated 11.09.2001, Police Station Sadar, Nawanshahr, under Sections 15/61/85 of the N.D.P.S. Act, 1985, (hereinafter referred to as “the Act”),, that the subsequent sentence passed by the learned Judge, Special Court, Jalandhar, vide judgment dated 08.11.2005 (Annexure-P-2), shall run concurrently with the previous sentence passed by the learned Judge, Special Court, Nawanshahr, vide judgment dated 23.02.2004 (Annexure-P-1). Briefly, the facts of the case are that the petitioner was tried, and convicted alongwith two co-accused in F.I.R. No. 187, dated 11.09.2001 under Sections 15/61/85 of the Act, registered at Police Station Sadar, CRM M-2514 of 2009 (O/M). Nawanshahr, and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rupees one lakh each, and in default of payment of fine, the petitioner alongwith two co-accused shall further undergo rigorous imprisonment for six months under Section 15 of the Act for possessing 17 bags of poppy husk each containing 35 kgs., vide judgment dated 23.02.2004 (Annexure-P-1). The petitioners challenged their conviction and sentence by preferring appeal before this Court, being CRA No. 615-S.B.-2004. The said appeal was dismissed by this Court, vide order dated 19.05.2008 and the conviction and sentence was affirmed. The conviction and sentence became final as it was not challenged by the petitioner. The petitioner was tried in another F.I.R. bearing No. 61, dated 03.06.2001 under Section 15 of the Act alongwith his co-accused, registered at Police Station Goraya, District Jalandhar, for possession 15 bags of poppy husk each weighing 35 kg., vide judgment dated 08.11.2005 (Annexure-P-2). The learned Judge, Special Court, Jalandhar, convicted the petitioner alongwith other co- accused under Section 15 of the Act and sentenced them to undergo rigorous imprisonment for ten years each and to pay fine of rupees one lakh. In default payment thereof to undergo further imprisonment for one and half year. The subsequent sentence passed by the learned Judge, Special Court, Jalandhar, did not order the sentence to run concurrently with the previous sentence. Judgment of learned Judge, Special Court, Jalandhar, dated 08.11.2005 (Annexure-P-2), was challenged by the petitioner in this Court by way of an appeal being CRA-27-S.B-2006. This appeal was dismissed by this Court, vide order dated 15.05.2008. The co- accused of the petitioner, namely, Binder preferred S.L.P. in Hon'ble the -2- CRM M-2514 of 2009 (O/M). Supreme Court being S.L.P. (Criminal) 5512 of 2008. The said S.L.P. was dismissed by Hon'ble the Supreme Court, vide order dated 04.08.2008. The petitioner did not challenge his conviction in Hon'ble the Supreme Court. Neither this Court nor Hon'ble the Supreme Court ordered the subsequent sentence to run concurrently with the previous sentence. It is after the finalisation of the proceedings in both the F.I.Rs. referred to above, that the present petition under Section 482 Cr.P.C. has been preferred by the petitioner, praying for exercise of powers under Section 427 Cr.P.C. for directing subsequent sentence of the petitioner to run concurrently with the previous sentence. Counsel for the petitioner contends that Section 427 Cr.P.C. provides for ample powers to the Courts to direct subsequent sentence to run concurrently with the previous sentence. He submits that the case of the petitioner is covered by the provisions of Section 427 Cr.P.C. and therefore, this Court in exercise of its extra ordinary jurisdiction under Section 482 Cr.P.C., in the interest of justice, should issue direction as has been prayed for in the present petition. He relies upon the Full Bench Judgment of Bombay High Court in the case of Satnam Singh Puransing Gill Versus State of Maharashtra, 2009 (1) R.C.R. (Criminal) 703, in support of his submission and contends that, while interpreting the penal provisions of the Statute construction which will tilt the interpretation favourable to the accused, should be preferred over the interpretation, which would adversely affect the right of the accused under the trial. He on this basis prays for allowing the present petition. On the other hand, counsel for respondent-State, relies upon the Full Bench Judgment of this Court in the case of Jang Singh Versus -3- CRM M-2514 of 2009 (O/M). State of Punjab, 2008 (1) R.C.R. (Criminal), 323, to contend that powers under Section 427 Cr.P.C. can be exercised and direction to make sentence run concurrently can be given by the learned Trial Court or the learned Appellate Court or the Revisional Court, at the time of exercising appellate or revisional jurisdiction, whereas the High Courts in exercise of its powers under Section 482 Cr.P.C. cannot issue such directions. I have heard counsel for the parties and have gone through the records of the case. Section 427 Cr.P.C. regulate the mode of execution of sentence in cases, where a person is undergoing a sentence for another offence. Section 427 Cr.P.C. reads as follows :- “427. Sentence on offender already sentenced for another 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: Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.” Section 427 Cr.P.C. is an exception to the general principle in so far as it provides that the power to the Courts to direct subsequent sentence to run concurrently with the previous sentence. It does not on its own come into operation unless a specific direction to that effect is issued by the Court. While considering the provisions under Section 427 Cr.P.C., -4- CRM M-2514 of 2009 (O/M). the Full Bench Judgment of this Court in the case of Jang Singh (supra), has held in para-18 as follows :- “18. The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C., is that, a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Such direction to make the sentences to run concurrently, as per various decisions noted above , can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well. However, if the trial Court does not pass any such direction for making the sentences to run concurrently and appeal or revision against said decision is also decided, then it may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Sections 482/427 Cr.P.C. The view taken by one set of the High Courts that such an application can be entertained while exercising inherent powers under Section 482 Cr.P.C. would no more appear to be a good law in view of the decision of the Hon'ble Supreme Court in M.R. Kudva case (supra). We are, thus, bound to take this view that this discretion though available with the trial Court, appellate Court or the revisional Court, while holding trial or entertaining appeal or revision but would not be so available to be exercised in isolation when application in this regard is moved either under Sections 482 or 427 Cr.P.C.” Hon'ble the Supreme Court in the case of M.R. Kudva Versus State of Andhra Pradesh, 2007 (1) R.C.R. (Criminal), 868, has while dealing with the provisions of Section 427 (1) Cr.P.C. held that Section 482 Cr.P.C. could not be exercised by the High Courts to grant benefit under Section 427 Cr.P.C. The relevant portion of the said judgment reads as follows :- “ However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the -5- CRM M-2514 of 2009 (O/M). 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 such jurisdiction while passing the judgments in appeal. Section 482 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 in appeal. Section 482 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 judgment 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. ” The above view has already been taken by this Court in Amar Singh Versus State of Punjab and others , 2009 (3) R.C.R. (Criminal), 199. In the present case, it is an admitted position that neither the learned Trial Court nor this Court or Hon'ble the Supreme Court had directed concurrent running of the subsequent sentence and, therefore, discretion, which was available with the learned Trial Court, learned Appellate Court or Revisional Court, having not been exercised by the said Courts, powers under Section 482 Cr.P.C. cannot be invoked in the present petition for granting benefit under Section 427 Cr.P.C. In view of the above, the judgments relied upon by counsel for the petitioner, i.e., Satnam Singh Puransing Gill (supra) and Mohan Bhanudas Mohite Versus State of Maharashtra, 2004 (4) R.C.R. (Criminal), 311, cannot be said to lay down the correct law. In view of the above, finding no merit in the present petition, the same is dismissed as not maintainable. (AUGUSTINE GEORGE MASIH) November 23,2009. JUDGE sjks. -6-