T.N.R. Tirumalpad, J.C.
1. This is a revision petition to set aside the order dated 12-11-56 passed by the Assistant Sessions Judge, Tripura in Sessions ease No, 9 of 1956.
2. The petitioner who is a convict undergoing imprisonment in the Central jail, Tripura was convicted in Sessions case No. 5 of 1956 by the Assistant Sessions Judge Sri C. Sinha on 4-4-56 on a charge of dacoity under Section 395, I. P. C. and sentenced to R. 1. for 7 years and a fine of Rs. 500/- and in default to 6 months' further R. I. There was another Sessions case against him pending at the time in the Court of another Assistant Sessions Judge Sri S. B. Laskar in which also the charge against him was one of dacoity under Section 395 arising out of a totally separate incident not connected with the earlier case.
In that ease the petitioner was convicted and sentenced to undergo R. I. for 6 years on 8-10-56. No direction was given by the Assistant Sessions Judge in Sessions case No. 9 of 1956 under Section 397 Cri. P. C. that the sentence passed by him should run concurrently or consecutively with the previous sentence in Sessions case No. 5 of 1956. If no such direction was given, Section 397 Cri P. C. provides that the sentence in the subsequent case shall commence at the expiration of the sentence in the previous ease. The petitioner or his Counsel did not appear to have brought the fact of the previous conviction and sentence to the notice of Sri S. B. Laskar.
3. In the Jail warrant of the petitioner dated 8-10-1958 (Annexure VI) sent to the Superintendent of Central jail, the Assistant Sessions Judge Sri S. B. Laskar stated that the petitioner, has been sentenced to 6 years' R. I. and the Superintendent was directed to detain the petitioner in jail custody for the period mentioned from that date i.e., 8-10-56. This was evidently clone under the general rule that a fail sentence shall commence to run from the date of its being passed. The Superintendent of Central jail then brought to the notice of the Judge that the petitioner had already been sentenced to 7 years and 6 months' R. I, on 4-4-56 and was undergoing the said sentence and that if the subsequent sentence was to take effect from 8-10-56, it would obviously run concurrently with the previous one and that the matter may he confirmed specifically.
When this report was received by the Assistant Sessions Judge Sri S.B. Laskar, he passed a further order on 12-11-56 that under Section 397 Cri. P. C. the sentence in Sessions case No. 9 of 1956 was to commence at the expiration of imprisonment in Sessions case No. 5 of 1956. This was Communicated to the Superintendent, Central Jail,
4. The petitioner appeared to have come to know of this subsequent order dated 12-11-56 when the Superintendent, Central jail wrote to the petitioner's Advocate on 13-9-60 by Annexure II to that effect. Thereupon he has come forward with the present application.
5. It is contended for the petitioner that when the Assistant Sessions Judge passed the judgment on 8-10-56, he became functus officio and that he had no jurisdiction to pass a subsequent order on 12-11-56 modifying or qualifying the order contained in his judgment and in the jail warrant dated 8-10-56 and that as the jail warrant dated 8-10-56 clearly showed that the sentence was to begin from that date, it has to be treated that an order that the sentences were to run concurrently had been passed under Section 397 and that therefore the subsequent order on 12-11-56 is liable to be set aside.
6. I am not prepared to accept this contention. It is true that the normal rule is that sentence of imprisonment shall commence to run from the date it is passed. I have perused the judgment in Sessions trial No. 9 of 1956. There is nothing in that judgment to show that it was brought to the notice of the Court that the petitioner was already undergoing a sentence for a previous conviction. Thus in the jail warrant Annexure VI the Assistant Sessions Judge only mentioned the normal rule that the sentence was to commence from that date. The jail warrant cannot be treated to be an order passed under Section 397 Cri. P. C. directing that the said sentence shall run concurrently with the previous sentence.
If the petitioner wanted such an order under Section 397, it was his duty or his Counsel's duty to have brought to to notice of the Court the existence of the previous sentence and to have got an order that the two sentences were to run concurrently. Thus there was no such order consciously passed by the Judge. In the absence of any such order, the position was that under Section 397 the subsequent sentence was to commence at the expiration of the previous sentence. When a doubt was expressed by the Superintendent of Central jail, the learned Assistant Sessions Judge by his order dated 12-11-56 only clarified the position that the sentence was to commence after the expiration of the previous sentence.
Even without that clarification, Section 397 Cri. P. C. would apply to the case and in the absence of any specific order that the two sentences were to run concurrently, it is clear that the sentences have to run consecutively. So no question of the order dated 12-11-56 being a modification or qualification of any order contained in the judgment dated 8-10-56 would arise.
7. When this position was made clear in the course of the arguments, Mr. J. Chowdhury appealing for the petitioner pleaded that this was fit case where in the interests of justice this Court should exercise its inherent power under Section 561-A Cri. P. C. to pass an order that the two sentences should run concurrently. In support of his argument, ho cited the decisions Sis Ram v. Emperor AIR 1929 All 585 and Nagappa Vyankappa Sali v. Emperor AIR 1931 Bom 529(1). 'Both these cases hold that under Section 397 Cri. P. C. the High Court has power to direct that separate sentences in separate trials shall run concurrently.
But in both those cases, the said orders were passed in the appeals against the sentences and not in the exercise of the inherent power under Section 561-A Cr. P. C. In the Allahabad case it would also appear that though there were two separate trials in two separate cases, the two offences arose out of the same series of transactions and there was an observation that a fresh offence did not appear to have been committed. No doubt in the Bombay case the two sentenecs arose out of separate but similar offences, though the report of the case does not show what was the nature of the offences. In any case the said High Courts did not exercise their powers under Section, 561-A, Cri. P. C. No case has been brought to my notice where the inherent power of a High Court was used for the purpose.
8. It has been laid down by the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam : 1958CriLJ701 that the inherent power conferred on the High Courts under Section 561-A has to be exercised sparingly, carefully and with caution and only where such exercise in justified by the tests specifically laid down in the section itself and only when the ends of justice are put in jeopardy. To my question to the learned Advocate for the petitioner as to what are the special circumstances in this case which would make it necessary to secure the ends of justice that this Court should use its inherent power, he pointed out that the Assistant Sessions Judge had whether consciously or unconsciously stated in the jail warrant that the sentence in Sessions trial No. 9 of 1956 was to begin from 8-10-56, that the petitioner was therefore under the belief that the two sentenecs would run concurrently and that it would be heart-rending for him now to be told that a further order had been passed behind his back and without his knowledge, that the sentenecs were to run consecutively, which would mean that he will have to continue in jail for an additional period of 6 years.
He pointed out that if he had known about the order dated 12-11-56 earlier he would have come to this Court immediately. It was pointed out that having served his sentence for 4 1/2 years he was hoping that with the remissions which he was entitled to under the jail rules he was likely to be released early and it was only then that he was informed in September, 1960 that an order had been passed on 12-11-60 that the two sentences should run consecutively.
9. I think, there is some substance in the contention of the petitioner. It is no doubt true that the petitioner has been guilty of two separate and unconnected offences of dacoity which are serious offences against society and normally he ought to serve the two terms of imprisonment separately as provided under Section 397. But we see from the report of the Superintendent, Central Jail that he took the order of the Assistant Sessions Judge in the fail warrant dated 8-10-56 to mean obviously that the two sentences were to run concurrently and ho wanted only that it should be so confirmed in specific teams. Thus the Superintendent, as well as the petitioner were under the impression from the Jail warrant that the sentences were to run concurrently.
10. If however the Assistant Sessions Judge was of the view that the assumption of the Superintendent, Central jail was wrong, he cannot pass such an order behind the back of the accused person to his detriment stating that the assumption of the Superintendent was wrong and that the sentences should run consecutively. In any case the petitioner and the other convicts in the case were entitled to be informed immediately that such a clarification has been sought.
Before passing the order against the petitioner and the other convicts, the learned Judge was bound to give them an opportunity to satisfy him that the sentences should run concurrently. It is an essential principle of our jurisprudence that No. man should be condemned unheard and that no order should be passed by a Court against a man without giving him an opportunity to satisfy the Court that no such order should be passed.
11. This serious omission certainly led the petitioner and the other convicts in the case to be under the impression that the two sentences were to run concurrently in the face of the jail warrant. No doubt, the petitioner and other convicts could have obtained a specific order under Section 397 Cri. P. C. at the time when the judgment was pronounced in Sessions trial No. 9 of 1956. That is perhaps too much to expect from persons in their predicament.
12. Further the jail warrant was of the same date as the judgment and the statement in the jail warrant dated 8-10-1956 that the sentence was to commence from that date might quite possibly have lulled the petitioner into the belief that such an order under Section 397 Cri. P. C. in his favour has been passed. It is quite possible that otherwise a prayer would have been made to the Court for relief under Section 397, The fact that the petitioner was deprived of the opportunity to make such a prayer probably for no fault of his and the further. fact that the order that the sentences should run consecutively against the petitioner was passed behind his back and without his knowledge have to be taken into account by this Court in securing the ends justice.
13. Under Section 561-A the High Court has the inherent power to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code to secure the ends of justice. It is necessary therefore that the order of the Assistant Sessions Judge dated 12-11-56 should be set aside under Section 561-A and that the original order under the jail warrant elated 8-10-56 that the sentence in Sessions trial No. 9 of 1956 will commence from 8-10-56 should be confirmed and that the assumption of the Superintendent, Central jail that the two sentences were to run concurrently must be held to be correct.