Full Judgment
Motilal B. Naik
1. Petitioner was convicted for the offence punishable under Section 379 IPC by the Judicial First Class Magistrate, Banaganapalli in CC No.30 of 1997 and sentenced to undergo rigorous imprisonment for two years through judgment dated 3-7-1997. Aggrieved by the said conviction and sentence, petitioner filed Criminal Appeal No.83 of 1997 before the II Additional Sessions Judge, Kurnool. However, the said Criminal Appeal was dismissed on 19-12-1997. Thus, the conviction and sentence imposed on the petitioner by the Judicial First Class Magistrate, Banaganapalli in CC No.30 of 1997 became final.
2. Petitioner along with two others was also convicted for the offence punishable under Section 411 IPC and sentenced to undergo rigorous imprisonment for two years by the Judicial First Class Magistrate, Yemmiganur in CC No.25l of 1996 on 6-5-1997. Though the petitioner preferred Criminal Appeal No.69 of 1997 against the said conviction and sentence before the n Additional Sessions Judge, Kurnool, the same was also dismissed on 19-12-1997. Thus, the sentence of two years rigorous imprisonment imposed on the petitioner by the Judicial First Class Magistrate, Yemmiganur in CC.No.251 of 1996 on 6-5-1997 became final.
3. Sri C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the petitioner contended that the learned II Additional Sessions Judge, Kurnool who dismissed the two Criminal Appeal Nos.83 of 1997 arising out of CC No.30 of 1997 and Criminal Appeal No.69 of 1997 arising out of CC No.251 of 1996, on the same day i.e., on 19-12-1997 ought to have seen that both the offences in CC No.251 of 1996 and in CC No.30 of 1997 have been committed by the petitioner within a short span and in quick succession and that the nature of offences in both the cases are one and the same ought to have directed both the sentences imposed on the petitioner in two separate C.Cs. to run concurrently Counsel further contended that even in the absence of a specific direction from the II Additional Sessions Judge, Kurnool directing both the sentences imposed on the petitioner to run concurrently, the High Court exercising powers under Section 482 of Cr.PC is sufficiently clothed with powers to make both the sentence to run concurrently. In support of his contentions, learned senior Counsel has relied upon the following decisions reported in Shersingh v. State of M.P., 1989 Crl.L.J. 632, Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad, : 1989 CriLJ283 , and in V. Venkateswarlu v. Stale of Andhra Pradesh, 1987 Crl.L.J. 1621.
4. We have heard the learned Public Prosecutor also in this regard.
5. The principle which emerges from the above decisions, in our view, is that in a given case, without regard to the place of transaction and the nature of punishment, the High Court while exercising the inherent powers under Section 482 Cr.P.C. is competent to direct the subsequent sentence to run concurrently with the earlier sentence even if the Courts below have ordered the sentences to run consecutively without regard to the provisions under Section 427(1) of Cr.P.C. The Supreme Court in the decision Mohd. Akhtar Hussain v. Asst. Collector Customs (Prevention), Ahmedabad (supra), at para-17, lias observed thus:
'It is no doubt true that the enormity of the crime committed by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. The totality principle has been accepted as correct principle for guidance. In R. v. Edward Charles French (1982) Cr.App R.(S)P.l(at 6) Lord Lane, CJ. observed:
'We would emphasise that in the end, whether the sentences are made consecutive or concurrent, the sentencing Judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case.'
6. The above observation of the Supreme Court gives clear indication that whether the sentences are made consecutive or concurrent, it should be ensured that the totality of the sentence is correct in the light of the circumstances of the case. The Full Bench decision of the Madhya Pradesh High Court cited Sher Singh's case (supra), which is rendered subsequent to the decision of the Supreme Court cited Mohd. Akhtar Hussain's case (supra), while dealing with the power of the High Courts under Section 482 Cr.P.C. and the implication of the provisions under Section 427(1) of Cr.P.C., has held that the power of the High Court under Section 482 Cr.P.C. can be invoked to make the subsequent sentence to run concurrently with the earlier sentence. The same view has been expressed by a Division Bench of this Court in the decision cited K Venkatesvcirlu's case (supra).
7. The question, therefore, is whether the powers available to the High Court under Section 482 of Cr.P.C. could be exercised in each and every case or it shall be exercised sparingly with due considerationto the nature of the offences committed.
8. The Supreme Court, in the decision cited Mohd. Akhtar's case (supra), has held that the enormity of the crime committed by the accused is relevant for measuring the sentence, but the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Supreme Court further held that the Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. Therefore, what is laid down by the Supreme Court is that while exercising powers under Section 482 of Cr.P.C., Courts shall take into account the totality of the facts of each case and also the totality of the sentences which the accused has to undergo if the sentences are to be consecutive.
9. Coming to the facts of the instant case, the petitioner was convicted in two different cases, one arising out of an offence punishable under Section 379 1PC in CC No.30 of 1997 whereby through the judgment dated 3-7-1997, the Judicial First Class Magistrate, Banaganapalli sentenced the petitioner to suffer R.I. for two years. In another case in CC No.251 of 1996, the petitioner was convicted for an offence punishable under Section 411 IPC by the Judicial First Class Magistrate, Yemmiganur by his judgment dated 6-5-1997. Though the petitioner preferred Criminal Appeal No.83 of!997 against the judgment in CC No.30 of 1997 and Criminal Appeal No.69 of 1997 against the judgment in CCNo.251 of 1996 before the II Additional Sessions Judge. Kurnool, both the appeals were dismissed on 19-12-1997. It is obvious that no effort was made on behalf of the petitioner before the learned II Additional Sessions Judge, Kumool for ordering both the sentences to run concurrently.
10. Though Sri C. Padmanabha Reddy, learned senior Counsel appearing on behalf of the petitioner contended that the learned II Additional Sessions Judge, Kuniool who disposed of the two criminal appeals filed by the petitioner against his two separate convictions in CC No.251/96 and 30/97, ought to have directed both the sentences to run concurrently, we are not inclined to record our concurrence to the submission, inasmuch as no request seems to have been made on behalf of the petitioner before the lower appellate Court in this regard. Had a request been made on behalf of the petitioner before the lower appellate Court, probably, the lower appellate Court i.e., learned II Additional Sessions Judge, Kurnool would have passed an order in terms of Section 427(1) of Cr.P.C.
11. On a perusal of the records, it is evident that the sentences imposed on the petitioner in CC No.30 of 1997 and CC No.251 of 1996 were not suspended pending disposal of Criminal Appeal Nos.83 and 69 of :997 respectively, filed by the petitioner. Therefore, as on the date of disposal of the appeals by the learned II Additional Sessions Judge, Kumool, the petitioner was undergoing the sentences imposed upon him as indicated above. Subsequently, the two appeals filed by the petitioner were dismissed on 19-12-1997.
12. Under Section 482 of Cr.PC., High Court exercises inherent powers to make such orders as may be necessary to give effect to any order under this code,' order to prevent abuse of process of any Court or otherwise to secure the ends of justice.
13. In this case, as indicated above, the petitioner was convicted for an offence punishable under Section 411 IPC by the Judicial First Class Magistrate in CC No.251 of 1996 and sentenced to undergo R.I. for two years by judgment dated 6-5-1997. No record is placed before us to show that this sentence was suspended during pendency of the Criminal Appeal No.69 of 1997 filed by the petitioner before the II Additional Sessions Judge, Kumool, challenging the said conviction and sentence. The present petition has fallen for consideration before us and on the date of rendering this decision i.e., 11-6-1999, the petitioner invariably has served the sentence of two years imposed on him on 6-5-1997 in CC No.251 of 1996 by the Judicial First Class Magistrate, Yemmiganur. Therefore, the sentence imposed on the petitioner in CCNo.251 of 1996 is no more in force for us to direct the subsequent .sentence imposed on the petitioner on 3-7-1997 in CC No.30 of 1997 by the Judicial First Class Magistrate, Banaganapalli, to run concurrently with the earlier sentence.
14. Under the above circumstances, the powers vested in this Court under Section 482 of Cr.P.C. cannot be invoked in a case of this nature and the request of the petitioner is rejected.
15. For the foregoing reasons, we dismiss this petition.