1 Criminal W.P.No. 246 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 246 OF 2011 Raju Kohalya Pradhan Age 44 years, Occ. Prisoner R/o District Open Prison, Paithan, Tq. Paithan, Dist. Aurangabad ..PETITIONER VERSUS 1) The State of Maharashtra, Through Secretary, Home Department, Mantralaya, Mumbai 2) The Inspector General (Prison) (Pune-1) 3. The Superintendent of Prison, District Open prison, Paithan, Dist. Aurangabad ..RESPONDENTS Smt Rashmi P. Gour, Advocate for the petitioner; Mr S.D. Kaldate, A.P.P. for the respondent CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 27th June, 2011 2 Criminal W.P.No. 246 of 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) Rule. Rule returnable forthwith. With the consent of learned Counsel for the parties, this petition is heard finally at the stage of admission. 2. By this petition under Article 226 of the Constitution of India, the petitioner prays for the following reliefs :- "(C) By issuing the writ of certiorari or any other appropriate writ, order or directions in the like nature the clause 6 of the order passed by the Ld. Addl. Sessions Judge, Shahada dated 10.4.2000 be quashed and set aside. (D) By issuing the writ of mandamus or any other appropriate writ, order or directions in the like nature the respondent no.3 may kindly be directed to forward the proposal of the petitioner for fixation of category to the State Govt. as the petitioner has already completed 13 yrs. of life imprisonment." The Division Bench of this Court while issuing notices to the respondents has framed the following issues which the Court felt needed to be addressed to by this Court :- "(A) Whether in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, the Division Bench could consider the prayer made by the petitioner ? 3 Criminal W.P.No. 246 of 2011 (B) Whether the prayer made by the petitioner for directing sentences awarded against him to run concurrently, could have been considered only by the Division Bench which heard and disposed of Criminal Appeal No.316 of 2000 ? (C) Whether the High Court is empowered to exercise inherent power/jurisdiction in respect of the prayer made in the Petition ? (D) Whether in the facts of the present case, the provisions of Section 427 of the Code of Criminal Procedure is applicable ? (E) Whether it is a discretion of the Court to direct the sentences to run concurrently or consecutively, in the facts of this case ?" 3. As per the judgment of the Trial Court, i.e. of the Additional Sessions Judge, Shahada, dated 10.4.2000, rendered in Sessions Case No.405 of 1998, the Trial Court has directed the petitioner to undergo sentence awarded to him for each as per section 31 (1) of the Code of Criminal Procedure. The aforesaid judgment of the Trial Court came to be confirmed by the Division Bench of this Court in Criminal Appeal No. 316 of 2000, by judgment dated 6.4.2004. 4. By this petition, therefore, the petitioner seeks virtual review of the judgment of the Trial Court which had awarded consecutive sentences and which judgment was confirmed by the Division Bench of this Court. 4 Criminal W.P.No. 246 of 2011 5. We may at this stage usefully make a reference to the judgment of the Supreme Court in M.R. Kudva vs. State of Andhra Pradesh, AIR 2007 Supreme Court 568. The Supreme Court has held that separate conviction and separate sentences awarded in two distinct and different offences and as the provision of section 427 was neither invoked in original case nor in appeal, an application to the High Court either under section 482 or 427 of the Code of Criminal Procedure praying that the sentences imposed in the cases be directed to run concurrently, was not maintainable. The Supreme Court further held that inherent jurisdiction was not appropriate remedy when neither Trial Court nor High Court had exercised jurisdiction under section 427 of the Code of Criminal Procedure while passing the judgments. A reference may also usefully be made to the judgment of the Division Bench of this Court, to which both of us, (P.V. Hardas, J. and A.V. Potdar, J.) were members, in Criminal Writ Petition No.704 of 2010, dated 15.10.2010. We had dismissed a petition which was praying for similar relief on the ground that the aforesaid petition was not maintainable and Article 226 of the Constitution of India could not be invoked. This petition filed by the present petitioner, therefore, is liable to be dismissed in respect of prayer clause (C) to the petition. 6. By virtue of prayer clause (D) to the petition, the petitioner prays for issuance of a writ of mandamus directing the authorities to forward the proposal of the petitioner for fixation of the appropriate category by the 5 Criminal W.P.No. 246 of 2011 State Government as the petitioner has completed 13 years of the life imprisonment. The learned A.P.P. appearing on behalf of the respondents is unable to state before us, if the proposal of the petitioner has been forwarded. We, therefore, partly allow this petition in respect of prayer clause (D) by directing the authorities to consider the case of the petitioner for forwarding the proposal to the State Government, if the case of the petitioner falls within the scope of section 433 of the Code of Criminal Procedure. The exercise be carried out within six months from today and a decision thereon be communicated to the petitioner. 7. In the light of what has been held by us above, this petition is partly allowed. Petition is dismissed in respect of prayer clause (C) to the petition but stands allowed in terms of the relief as stated above, with no order as to costs. ( A.V. POTDAR, J.) ( P.V.HARDAS, J.) amj/criwp246.11A