Crl. Misc. No. M-10925 of 2010 [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-10925 of 2010 Date of Decision: June 2, 2011 Pawan Kumar and another ...................... Petitioners Versus State of Haryana................................. Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1.To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: By order. Mr. P.S.Virk, DAG, Haryana, for the respondent. ..... RITU BAHRI, J. The present petition is being entertained on an application dated 19.3.2010 made by Pawan Kumar son of Jai Singh and Mukesh son of Mahavir, confined in District Jail, Sonepat, addressed to Hon'ble Mr. Justice Ranjit Singh, on inspection. Pawan Kumar and Mukesh are presently undergoing sentence as detailed below:- Crl. Misc. No. M-10925 of 2010 [ 2 ] FIR details Quantum of sentence Awarded by/on FIR No. 213 dated 15.8.2006 under Sections 396/397/120-B IPC and Sections 25/54/59 of the Arms Act registered at Police Station Matlaudu, District Sonepat. 10 years Shri Baljeet Singh, Additional Sessions Judge, Panipat on 15.8.2006. FIR No. 84 dated 18.8.2006 under Sections 302/34 IPC and 25/27 of the Arms Act registered at Police Station Mohana, District Sonepat Life imprisonment Shri Sanjeev Aggarwal, Additional Sessions Judge, Sonepat on 14.12.2009. It is prayed that their sentence in both the above mentioned cases be allowed to run concurrently. In the reply, the factual aspect that they have been convicted and sentenced is admitted. The petitioners are confined in District Jail, Sonepat. There is one case i.e. F.I.R. No. 80/06 under Section Arms Act Police Station Gohana which is pending against the petitioner Pawan Kumar son of Jai Singh. No other case is pending against petitioner Mukesh son of Mahabir. After conviction, appeals have been filed and they have been admitted to regular hearing in this Court. In the reply filed on 7.11.2010 by the Superintendent, District Jail, Karnal, it is stated that Shri Vikram Punia, Advocate of this Court, has been appointed as a counsel in Criminal Appeal No.2891-SB of 2009 filed by petitioner No.1 and Shri Rajinder Singh Malik, Advocate, has been appointed as counsel in Crl. Appeal No. 2912-SB of 2009 for petitioner No.2. Shri Sunil, Advocate, has been appointed as a counsel in Criminal Appeal No. 65-SB of 2010 in FIR No. 84 dated 18.8.2006 under Section 302/34 Crl. Misc. No. M-10925 of 2010 [ 3 ] IPC and 25/27 of the Arms Act registered at Police Station Mohana, Distrcit Sonepat and both the appeals have been admitted. Since the appeals in this case have been admitted, the present petition is not maintainable. The arguments of the Counsel for the State that as per the law laid down by the Supreme Court in M.R.Kudva v. State of Andhra Pradesh 2007 (1) R.C.R. (Criminal) 868 that an application under Section 482 Cr.P.C. and 427 Cr.P.C. is not maintainable. The manner in which the power under Section 427 Cr.P.C. is to be exercised has been considered in Full Bench in Jang Singh v. State of Punjab 2008 (1) R.C.R. (Criminal) 323 as under:- “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 of 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 Crl. Misc. No. M-10925 of 2010 [ 4 ] 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 Supreme Court in M.R.Kudva v. State of Andhra Pradesh 2007 (1) R.C.R. (Criminal) 868 has observed as under:- “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 Crl. Misc. No. M-10925 of 2010 [ 5 ] 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 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.” In the present case, the appeals against the conviction are admitted. The petitioners can make this prayer in appeal. Criminal miscellaneous is dismissed. 2.6.2011 ( RITU BAHRI ) Rupi JUDGE