Crl. Misc. No. M-18210 of 2010 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-18210 of 2010 (O&M) Date of Decision: June 2,2011 Mal Singh ............................................ Petitioner 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: Mr. V.S.Rana, Advocate for the petitioner. Mr. P.S.Virk, DAG, Haryana, for the respondent. ..... RITU BAHRI, J. This petition under Section 482 Cr.P.C. is for a direction that both the sentences awarded to the petitioner by various trial Court in different cases and on different dates be ordered to run concurrently. Crl. Misc. No. M-18210 of 2010 (O&M) [ 2 ] The petitioner has been convicted and sentenced in two cases decided by different courts on various dates. The details of which are given as under:- FIR details Quantum of sentence Awarded on/ by FIR No. 304 dated 9.8.1996 under Section 15 of the NDPS Act registered at Police Station Ratia 12 years The Court of ASJ, Fatehabad on 28.11.2001. FIR No. 136 dated 29.5.1999 under Section 15-C of the NDPS Act registered at Police Station Ratia, 10 years The Court of ASJ, Fatehabad on 12.3.2005. The above mentioned judgments of both the Courts were challenged by the petitioner in Criminal Appeal No. 103-DB of 2002 which was dismissed on 2.8.2006 and Criminal Appeal No. 1100-SB of 2005 was dismissed on 22.10.2008 (Annexures P2 and P3 respectively). In none of the judgments it has been mentioned that the sentence awarded to the petitioner shall run concurrently with any other sentence awarded to him. In F.I.R. No. 304 dated 9.8.1996 he has been convicted and sentenced for 12 years and his appeal has been dismissed by the High Court on 2.8.2006. The SLP filed against this order has also been dismissed. Against the sentence of 10 years awarded in F.I.R. No. 136 dated 29.5.1999 the criminal appeal No.1100- SB of 2005 has also been dismissed on 22.10.2008. In the above background, it is prayed that under Section 427 Cr.P.C. the petitioner is entitled to the benefit of concurrent running of both the sentences. Reliance has been placed on the judgments passed by this Court in Crl. Misc. No. 17604-M Crl. Misc. No. M-18210 of 2010 (O&M) [ 3 ] of 2005 (Annexur P-4) and Crl. Misc. No. 38909-M of 2007 (Annexure P-5). In the reply filed by the Superintendent, Central Jail, Hisar, the factual aspect has not been disputed regarding the conviction and sentence of the petitioner in 304 dated 9.8.1996 under Section 15 of the NDPS Act and F.I.R. No. 136 dated 29.5.1999 under Section 15-C of the NDPS Act. Since in the judgments there is no order that the sentence in both the cases will run concurrently, the petitioner will have to first undergo the sentence of 12 years awarded in F.I.R. No. 304 dated 9.8.1996 under Section 15 of the NDPS Act and then the sentence of 10 years in F.I.R. No. 136 dated 29.5.1999 under Section 15-C of the NDPS will be started. Mr. V.S.Rana, learned counsel for the petitioners, has referred to the judgments of the Full Bench in Sher Singh v. State of M.P. 1989 (1) R.C.R. (Criminal) 696 and Full Bench judgment of this Court in Jang Singh v. State of Punjab 2008(1) R.C.R. (Criminal) 323 to contend that the High Court has power under Section 482 Cr.P.C. to consider a petition under Section 427 Cr.P.C. Full Bench has laid down principles and consideration which will govern the exercise of this discretion. Mr. P.S.Virk, learned counsel for the State, on the other hand has placed reliance on the judgment of the Crl. Misc. No. M-18210 of 2010 (O&M) [ 4 ] Supreme Court in M.R.Kudva v. State of Andhra Pradesh 2007 (1) R.C.R. (Criminal) 868, Satnam Singh Puransing Gill v. State of Maharashtra 2009 (1) R.C.R. (Criminal) 703 and Amar Singh v. State of Punjab and others 2009 (3) R.C.R. (Criminal) 199 to contend that the remedy under Section 482 Cr.P.C. is not appropriate 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 accused in both the cases shall run concurrently. Section 427 Cr.P.C would not be attracted to proceedings initiated under Section 482 Cr.P.C. I have heard arguments of the learned counsel for the parties and have gone through the contents of the petition. 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 Crl. Misc. No. M-18210 of 2010 (O&M) [ 5 ] 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 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 Crl. Misc. No. M-18210 of 2010 (O&M) [ 6 ] 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 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 petitioner has been sentenced to undergo 12 years and 10 years in two different trials under the NDPS Act. Criminal appeals were dismissed Crl. Misc. No. M-18210 of 2010 (O&M) [ 7 ] by the High Court. The SLP filed against the order of the High Court in FIR No. 304 dated 9.8.1996 has been dismissed. His appeal against the sentence of 10 years in FIR No. 136 dated 29.5.1999 has been dismissed on 22.10.2008 by this Court. The appeals against the conviction have been dismissed by this Court. As per the settled law the High Court cannot exercise jurisdiction under Section 482 Cr.P.C. to entertain an application under Section 427 Cr.P.C. and pass an order for the sentence to run concurrently in two different trials. Criminal miscellaneous is dismissed. 2.6.2011 ( RITU BAHRI ) Rupi JUDGE