CRIMINAL MISCELLANIOUS NO.32668 OF 2009 (IN THE MATTER OF AN APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE AGAINST THE ORDER DATED 17.07.2009 PASSED BY THE ADDITIONAL SESSIONS JUDGE III, JEHANABAD IN CRIMINAL REVISION NO.37 OF 2009) ********** SATYENDRA YADAV @ TORWA, SON OF LATE KAMLESH YADAV, RESIDENT OF VILLAGE TENIBIGHA, POLICE STATION AND DISTRICT JEHANABAD ……………………………………………………………………………PETITIONER VERSUS THE STATE OF BIHAR..………………………….……………OPPOSITE PARTY ****************** P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan, J. This application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as `the Code’) has been filed against the order dated 17.07.2009 passed by the Additional Sessions Judge III, Jehanabad in Criminal Revision No. 37 of 2009 by which the Revisional Court has affirmed the order of the Court below refusing to give the benefit of Section 428 of the Code of Criminal Procedure to the petitioner. The facts of this case are that the petitioner was convicted by the Court of Judicial Magistrate, 1st Class, Jehanabad in G.R. No. 1100 of 2005 (Trial No. 1303 of 2006) under Sections 25 (1-B) of the Arms Act and 2 sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 3,000/- and the Court further imposed a sentence of 3 years R.I. and a fine of Rs. 3,000/- under Section 26 of the Arms Act. It was also ordered that the sentences were to run concurrently and further ordered that the petitioner would have to undergo simple imprisonment for one month if he failed to pay the fine. Subsequently, the petitioner was also sentenced to undergo rigorous imprisonment for two years in G.R. No. 192 of 2006 (Trial No. 30 of 2006) on 05.09.2006 under Section 224 of the Indian Penal Code. The petitioner has remained in custody prior to the sentence on 12.02.2006 for a period of one year one month and eighteen days and it is therefore submitted that the period undergone by him should be set off against the sentence of imprisonment imposed on him after conviction. Counsel for the petitioner has also submitted that he should get the benefit of Section 427(1) of the Code and the Court should order that the subsequent sentence awarded to the petitioner should run concurrently with the previous sentence. It is also submitted that the period of detention should be set off against the two sentences awarded to him. For this purpose he filed an application in the Court below which has been rejected. In this context, it would be relevant to refer to 3 Section 427 of the Code, which 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 as person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately. (2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.” It is evident from the perusal of the above section that the requirement of law is that a person who is already undergoing a sentence of imprisonment on being sentence to imprisonment or imprisonment for life, on a subsequent imprisonment unless the Court recording the subsequent conviction directs that the subsequent 4 sentence awarded shall run concurrently with the previous sentence, shall undergo the imprisonment or imprisonment for life awarded on the subsequent conviction at the expiration of the imprisonment to which he had been previously sentenced. The stage for exercising this discretion is at the time the Court records the conviction and inflicts punishment on the accused. No duty, however, is cast on the Court, in terms of this section to consider the question of the subsequent sentence being made concurrent with the sentence the accused were undergoing in a previous conviction. The language of the section invests the Court with discretion albeit a judicial discretion in suitable cases on a subsequent conviction to direct that the sentence will run concurrently with the sentence the accused was already undergoing. However, in cases where the offences committed by an accused person, giving rise to separate trials resulting in convictions are distinct and are not intimately connected or have a different genesis, the court may consider that it would be appropriate that the conviction be allowed to take its normal course. The discretionary power is to be exercised on the merits of the case at the time of awarding the subsequent sentence. But this power can also be exercised if either the accused or the prosecution brings it to the notice of the Court while 5 recording the subsequent conviction that the accused is already undergoing sentence of imprisonment. “On pronouncement of the judgment, recording the conviction and sentencing an accused to appropriate imprisonment warranted by the facts of the case, the Court becomes functus officio and cannot resort to the provisions of Section 427 of the Code on an application by an accused person pass an order directing that the imprisonment awarded by it shall run concurrently with the imprisonment, the accused is already undergoing at the time when the Court sentenced him to imprisonment subsequently. It would be open to the accused person to contend in appeal or revision that the sentence awarded to him on subsequent conviction when he was already undergoing imprisonment may be ordered to run concurrently. Regarding the first submission this Court will deal with the provisions of Section 428 of the Code. Section 428 of the Code, on the other hand, reads as follows:- 428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to imprisonment for a term [not being imprisonment in default of 6 payment of fine] the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him”. It is, therefore, clear that no doubt that law has provided that the imprisonment undergone before the final conviction in a case would be set off against the sentence imposed. However, it may be clarified that an accused is sentenced in two different cases by two different Courts and the sentences were to run concurrently, in the first case set off is granted, then in the second case, the set of for the second period would be wholly uncalled for because the period had already been counted while counting the set off in the first case. The prisoner who was undergoing a substantive jail sentence on conviction in one case cannot be treated as an under-trial prisoner in another case. Therefore, the contention of the petitioner that the period he had undergone as an under-trial prisoner in the first case should be counted for the purpose of giving him set off in the second case is not warranted and rejected by this 7 Court. The question, therefore, arises whether this Court can exercise its inherent powers under Section 482 of the Code to pass an order under Section 427 of the Code. This question has been answered in the case of Mahabir Beldar @ Mahabir Nonia vs. State, reported in AIR 1965 Patna 178 where the Patna High Court held that the power under Section 561-A of the old Code (482 under the New Code) ought to be exercised very rarely and only when the Court feels that the ends of justice require the exercise. The inherent power of the High Court becomes relevant because of it being at the apex of the judicial set-up in the State. The inherent power of the High Court preserved by Section 482 of the Code are to be exercised in making orders as may be necessary to give effect to any order of the Court or to prevent the abuse of the process of law or otherwise to secure the ends of justice. While exercising the inherent power under Section 482 of the Code, it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by other provisions of the Code (R.P. Kapoor vs. the State of Punjab, AIR 1960 SC 866). The question is that at what stage the accused who has been convicted can ask the Court to grant relief under Section 427 (1) of the Code. The answer obviously is 8 that the accused would have the right to file an appeal. The Court under Section 386 of the Code may in such a case reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of competent jurisdiction, subordinate to such appellate Court to (a) alter the findings, (b) maintaining the sentence, (c) with or without altering the findings, (d) alter the nature or the extent of the sentence, or pass any such order that he thinks fit and proper and, therefore, there is no power that the Appellate Court cannot consider the provisions of Section 427(1) of the Code if a prayer is made on behalf of the accused. Such a relief is also open to the accused by invoking the Revisional jurisdiction of the High Court or the Sessions Court. A perusal of Section 397 of the Code shows that the subject matter of the revision is widely within the subject matter of an appeal under Section 397 of the Code, such Court is empowered to call for the records for the purpose of satisfying itself with respect to the correctness, legality or propriety of any finding, sentence or order and to judge the regularity of any proceeding of the Court below. The powers of revision exercised by the Sessions Judge are described under Section 399 of the Code. Sub-section (1) thereto lays down that in the case of any proceeding, the record of which has 9 been called for by himself, the Sessions Judge may exercise or any of the powers which may be exercised by the High Court under sub-section (1) of Section 401 of the Code. Sub-section (2) of Section 399 of the Code envisage that “where any proceeding by way of revision is commenced before a Sessions Judge under sub-section (1), the provisions of sub-sections (2), (3), (4) and (5) of Section 401 shall, so far as may be, apply to such proceeding and references in the said sub-sections to the High Court shall be construed as references to the Sessions Judge.” Sub- section (3) makes a reference to a person moving an application for revision before the Sessions Judge. Such a person is not entitled to take further proceeding by way of revision before the High Court or any other Court. The powers of revision exercisable by the Sessions Judge as set out in Section 399 of the Code are co-extensive with the High Court’s power enumerated in Section 401 of the Code. A combined reading of Sections 397, 399 and 401 of the Code reveals that the Court may call for the records and after examining the same, pass an appropriate order to correct by revision, what may appear to be incorrect, illegal or improbable order passed by the Subordinate Court. Even in a case where the accused has not sought a relief in terms of Section 427 (1) of the Code from the Trial Court, it would be open to him to seek such a relief by 10 invoking the Revisional powers of the Court on showing justifiable reasons for his omission. In several cases, the High Court of different States have held that the Court may treat the application to be one under Section 401 of the Code and pass an appropriate order if the facts justify the interference. In the case of Hanoo @ Har Narain vs. State of Uttar Pradesh (1998 CRI. L. J. 94), the Allahabad High Court intervened in the matter and allowed the application under Section 427 (1) of the Code on the ground that the accused was convicted in four cases on the same date by the same Magistrate. The offences were intimately connected with each other. The applicant filed appeal in one of the cases in which he was convicted and the Appellate Court reduced the sentence of imprisonment to the period undergone. Similarly, in the case of Mani and another vs. State of Kerala (1983 CRI. L. J. 1262), while holding that the power cannot be exercised under Section 482 of the Code, treated the application to be under Section 397 of the Code and allowed the prayer of the accused/petitioner under Section 427(1) of the Code. In the present case, treating this application as a revision and considering that the petitioner has remained in custody for a considerable time and because 11 of the fact that the second conviction passed in Trial No. 30 of 2006 is intimately connected with the first conviction passed in Trial No. 1336 of 2006, the petitioner should be given the benefit of Section 427 (1) of the Code. The Court below is directed to examine whether the petitioner has undergone the conviction awarded to him in terms of this order. In the result, this application is allowed to the extent mentioned aforesaid and the order impugned dated 17.7.2009 is quashed. ( Sheema Ali Khan, J.) Patna High Court Dated, the 20th November, 2009 A.F.R./Anand