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A.S. Naidu Vs. the State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1975CriLJ498; 1974MPLJ769
AppellantA.S. Naidu
RespondentThe State of Madhya Pradesh
Cases ReferredVenkanna v. State of Andh Pra
Excerpt:
- - 157 of 1970, d/- 20-3-1971 (madh pra), in which it has been held that the power to release an accused on probation of good conduct cannot be exercised after the delivery of judgment this decision cannot, however, be considered as an authority on the question whether the power under sub-section (1) of section 397 of the code can be exercised after the delivery of judgment. an order releasing an offender after due admonition under section 3 of the said act or an order releasing an offender on probation of good conduct under section 4 is passed in lieu of sentence, section 9 of the act provides that where the offender fails to observe the conditions of the bond, he may be awarded a sentence for the original offence......court can exercise discretion under section 397 of the code of criminal procedure and direct the sentence awarded in subsequent trials to run concurrently with the sentence awarded in previous trial even after the appeals or revisions preferred by the convict have been dismissed?2. for a proper consideration of this question, it is necessary to refer to section 397 of the old code of criminal procedure (hereinafter referred to as 'the code') which corresponds to section 427 of the new code of criminal procedure. the said section is reproduced below for facility of reference:397.(1) when a person alreadv 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.....
Judgment:

S.M.N. Raina, J.

1. The following question has been referred by Bhave. J. far decision:

Whether this Court can exercise discretion under Section 397 of the Code of Criminal Procedure and direct the sentence awarded in subsequent trials to run concurrently with the sentence awarded in previous trial even after the appeals or revisions preferred by the convict have been dismissed?

2. For a proper consideration of this question, it is necessary to refer to Section 397 of the old Code of Criminal Procedure (hereinafter referred to as 'the Code') which corresponds to Section 427 of the new Code of Criminal Procedure. The said section is reproduced below for facility of reference:

397.(1) When a person alreadv 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 a person who has been sentenced to imprisonment by an order under Section 123 in default of furnishing a 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 life, the subsequent sentence shall run concurrently with such previous sentence.

3. The general Title is that- a sentence commences from the time it is passed. This section creates an exception in the case of persons already undergoing a sentence of imprisonment. It provides that a sentence, which is first passed and which the accused is undergoing, must be given effect to first and the sentence subsequently passed shall follow after the expiration of the first sentence. Subsection (1) of the section, however, confers a discretion on the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. The main point for consideration in this case is whether this discretion can be exercised after an appeal or revision relating to the subsequent conviction and sentence has been disposed of by the High Court.

4. There has been some divergence of opinion on this question and it would be pertinent here to refer to the decisions bearing on it. In Baijnath v. State : AIR1961Pat138 it was held that where the High Court has summarily dismissed the appeal against the second conviction, it has no power thereafter under Section 397 (1) of the Code to pass an order making the subsequent sentence to run concurrently with the previous sentence, as the stage for passing an order under Section 397 had passed. It was, however, held that such a power could be exercised by the High Court in exercise of its inherent jurisdiction under Section 561A of the Code to secure the ends of justice and that Section 369 of the Code was no bar to the exercise of this power. In Maha-bir Beldar v. The State : AIR1965Pat178 a Single Judge of that Court, however, took a different view and held that the power to direct the sentences to run concurrently could not be exercised even under its inherent powers after the disposal of the appeal, relying on a earlier Division Bench decision of that Court in Ekram Sheikh v. The State, Cri A. Nos. 574 of 1960 and &46 of 1961, D/- 21-11-1962 (Pat).

5. In Manju alies Bhavan v. The State of Madhya Pradesh, M. Cri. C. No. 225 of 1968, D/- 4-7-1969 (Madh Pra) Bhave, J., relying on the decision of the Madras High Court in In re Nachimuthu AIR 1958 Mad 452 : (1958 Cri LJ 1197), held that the power under Section 561A of the Code could not be exercised for giving the relief under Section 397 of the Code after the appeal or revision was disposed of. A similar view was taken by Sharma, J. in Jagannath v. State, 1967 JabLJ (Note) 21 Singh, J., however took a contrary view in Apparao Mule v. The State of Madh Pra Cri. C. No. 503 of 1970, D/- 11-3-1971 (Madh Pra) and passed an order directing the sentences to run concurrently in exercise of the inherent powers of the Court under Section 561A of the Code.

6. In Ulfat v. State 1970 Cri LJ 767 (All) the Allahabad High Court held that the High Court has jurisdiction under Section 561A of the Code to consider the question whether the sentence in a subsequent trial should be made concurrent with the previous sentence and that an order directing the subsequent sentence to run concurrently with the previous sentence does not amount to reduction or alteration of sentence Within the meaning of Section 423(1)(b) of the Code. A similar view was expressed by the Andhra Pradesh High Court in Venkanna v. State of Andh Pra : AIR1964AP449 , it was held in that case that the High Court could exercise the power to direct the sentences to run concurrently under Section 561A of the Code.

7. The bask point for consideration in this connection is whether the direction to make the sentences to run concurrently under Sub-section (1) of Section 397 of the Code involves any review of the judgment in the subsequent case. A judgment in a criminal case consists of two important elements: a finding on the charge and, in the case of conviction, the nature and quantum of sentence. The exercise of the power under Sub-section (1) of Section 397 does not in any way modify or alter the judgment in the case in which the subsequent sentence has been awarded, inasmuch as it does not affect the nature or quantum of sentence. It is a power pertaining to the manner of execution of the subsequent sentence rather than the award of appropriate sentence according to law-Therefore, the direction to make the sentence awarded in a subsequent case to run concurrently with the sentence awarded in a case decided earlier does not amount to review of the judgment in which the subsequent sentence is passed. Since no modification of the judgment itself is involved, the power to make the two sentences run concurrently under Sub-section (1) of Section 397 of the Code can be exercised at any time when the matter is brought to the notice of the Court by an application or otherwise. No doubt, it would be proper to exercise this power at the time of deciding the case itself on merits whether on appeal or otherwise; but the Court cannot be said to have become functus officio and as such not competent to exercise the power when the case has already been decided on merits whether on appeal or otherwise. In our view, the power can be exercised even at a later stage, being an independent power conferred by subsection (1) of Section 397 of the Code not involving any review of the judgment on merits.

8. We may here refer to the observation of the Andhra Pradesh High Court in AIR 1964 Andhra Pradesh 449 : ((1964) 2 Cri LJ 377)(supra), in paragraph 2, accepting the earlier view of the Patna High Court that no question of altering or reviewing the judgment is involved in such a case. A similar view was expressed by the Allahabad High Court in 1970 Cri LJ 767 (All)(supra). Once we hold that no review of the .judgment is involved, the power conferred by Sub-section (1) of Section 397 of the Code to direct a sentence awarded in a subsequent case to run concurrently with the sentence awarded in a previous case can be exercised within the ambit of that provision without recourse to the inherent .jurisdiction of the Court under Section 561A of the Code.

9. Having come to the conclusion that Sub-section (1) of Section 397 of the Code confers an independent power on the Court to direct a subsequent sentence to run concurrently with the sentence in an earlier case, the question of exercising the power under its inherent jurisdiction does not arise. We may here mention that the learned counsel for the State invited our attention to the decision of a Division Bench of this Court in Dhyan-singh v. The State of Madhya Pradesh Misc. Cri. C. No. 157 of 1970, D/- 20-3-1971 (Madh Pra), in which it has been held that the power to release an accused on probation of good conduct cannot be exercised after the delivery of judgment This decision cannot, however, be considered as an authority on the question whether the power under Sub-section (1) of Section 397 of the Code can be exercised after the delivery of judgment. An order releasing an offender after due admonition under Section 3 of the said Act or an order releasing an offender on probation of good conduct under Section 4 is passed in lieu of sentence, Section 9 of the Act provides that where the offender fails to observe the conditions of the bond, he may be awarded a sentence for the original offence. Thus, an order under the Act is in lieu of sentence and, being a matter pertaining to the award of sentence, must be passed when sentence is awarded and not at a later stage. The aforesaid decision has, therefore, no bearing on the question posed for consideration in this case.

10. To sum up, we hold that subsection (1) of Section 397 of the Code confers an independent power on the Court to direct a subsequent sentence awarded in a case to run concurrently with the sentence awarded in an earlier case, which can be exercised even after the disposal of the case on merits since it does not involve any review of the judgment on merits.

11. We, therefore, answer the question posed for consideration in this case as under:

This Court can exercise its discretion under Sub-section (1) of Section 397 of the Code and direct the sentence awarded in a subsequent trial to run concurrently with the sentence awarded in a previous trial, even after the appeals or revisions preferred by the convict against his conviction in the said trials have been dismissed.


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