Crl. Misc. No. M-35901 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No.M-35901 of 2010 (O&M) Date of Decision: December 07, 2010 Yogesh @ Bablu ......Petitioner Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. Balraj S. Rathee, Advocate for the petitioner. M ehinder S ingh S ullar , J (Oral) The matrix of the facts, relevant for a limited purpose of deciding the core controversy raised in the instant petition and emanating from the record, is that petitioner-Yogesh alias Bablu along with his other co-accused namely, Narender alias Dhilu, was convicted and sentenced by Additional Sessions Judge, Sonepat, vide judgment of conviction and order of sentence dated 04.02.2002 (Annexure P-2), in the following manner:- “Taking into consideration all the facts and circumstances, accused Yogesh alias Bablu and Narender alias Dhilu are hereby sentenced to undergo life imprisonment and to pay Rs.10,000/- each as of fine for the offence punishable under section 302 read with section 34 of IPC. In default of payment of fine, they have to further undergo two years' rigorous imprisonment (RI). They are further sentenced to undergo six years' RI and to pay Rs.5,000/- each as of fine for the offence punishable under Section 392 of IPC. In default of payment of fine, they have to further undergo one year RI. Both the substantive sentence will run concurrently. The period already spend by the accused in custody if any, be set off from the substantive sentence. The golden chain and suit cases are forfeited to the State because neither the complainant nor the accused have claimed the same and be disposed of according to Crl. Misc. No. M-35901 of 2010 (O&M) -2- the rules after the expiry of period of filing appeal or as directed by the learned Appellate Court. File be consigned to the record room”. 2. Not only that, the petitioner along with his other set of accused, namely Ramu @ Dushyat, Dinesh @ Dinu, Ram Niwas @ Mota, Virender Singh and Dharam Chand, were again convicted and sentenced in another case, vide judgment of conviction dated 24.01.2004 and order of sentence dated 27.01.2004 (Annexure P-1), in the following manner:- “5. Taking the facts and circumstances of the case as well as gravity of the offence into consideration, five accused namely Ramu, Yogesh, Dinesh, Ram Niwas and Virender are sentence as under:- 1. Under Section 395 IPC read : To undergo rigorous imprisonment With Section 397 IPC imprisonment for life with fine of Rs.2000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one year each. 2. U/s 396 IPC: To undergo rigorous imprisonment for life with fine of Rs.2000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one year each. All the sentences shall run concurrently. Taking the facts and circumstances of the case as well as gravity of the offence, into consideration Dharam Chand accused is sentenced under Section 412 of IPC to undergo rigorous imprisonment for three years with fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for three months. The period of sentence already undergo by the accused- convicts, if any be taken into consideration, while counting period of sentence imposed upon them today. The case property, if any be dealt with in accordance with the rule on the subject. File be consigned to record room”. Crl. Misc. No. M-35901 of 2010 (O&M) -3- 3. Now the petitioner has filed the instant petition that the above indicated sentences imposed upon him be ordered to run concurrently, invoking the provisions of Section 482 Cr.P.C. 4. After hearing the learned counsel for the petitioner and going through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant petition, in this context. 5. The law of directing the sentences to run concurrently as contemplated under Section 427 Cr.P.C, is not res integra and is well settled. An identical question arose before this Court in case of Jang Singh v. State of Punjab 2008 (1) RCR (Criminal), 323. After interpreting the scope of Sections 427 and 482 Cr.P.C vis-a-vis law laid down by Hon'ble Apex Court in case of M.R.Kudwa v. State of Andhra Pradesh 2007(1) RCR (Criminal) 868, A Full bench of this Court ruled as under:- “ The consensus of the judicial opinion, as may emerge from different judgments passed by various High Court 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 Crl. Misc. No. M-35901 of 2010 (O&M) -4- 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. What principle and consideration will govern the exercise of this discretion, as already noted above cannot be exhaustively enumerated. Certain relevant factors, as can be culled out from different judgments referred to above, may give an indication where such discretion may be exercised. These factors generally would be the nature or character of the offences committed, the prior criminal record of the offender, character his age and sex etc. ghastly nature of the crime. The offender being habitual would also be the factor, which can be relevantly taken into consideration. It may be stated at the cost of repetition that these are not the only reasons for which the Court can exercise this discretion. Discretion always is open to be exercised by any court dependent upon the facts and circumstances of each case on any relevant or valid consideration as may be considered so by the Court while holding the trial or deciding the case at the stage of appeal or revision. It may require a notice that Section 427 Cr.P.C as observed by Hon'ble Supreme Court is aimed at amelioration and this aspect may also require to be kept in view while exercising the discretion.” 6. Therefore, since the instant case does not fall within the ambit and four corners of the law laid down by the Full Bench of this Court in Jang Singh's case (supra), so, the petition under Section 482 Cr.P.C deserves to be dismissed under the present set of circumstances. 7. In the light of the aforesaid reasons, as there is no merit,therefore, Crl. Misc. No. M-35901 of 2010 (O&M) -5- the instant petition is hereby dismissed, in the obtaining circumstances of the case. . (Mehinder Singh Sullar) Decemer 07, 2010 JUDGE G.Arora