A. Pasayat, J.
1. In this application for exercise of power Under Section 482 Code of Criminal Procedure, 1973 (in short, the 'Code') prayer is for a direction that sentences awarded in two different cases, i.e., S. T. 5/23 of 1988 and S. T. No. 2/121 of 1938-87 are to run concurrently,
2. Undisputed facts situation is as follows :
In the first case referred to above petitioner was found guilty and sentenced to undergo rigorous imprisonment for nine years by the learned Additional Sessions Judge, Balasore for having committed an offence punishable Under Section 397 of the Indian Penal Cade. 1860 (in short, 'IPC'). The matter came before this Court in Criminal Appeal No. 28 of 1990. Though the appeal was dismissed, sentence was modified by reducing it from nine years to seven years. In the second case, petitioner was found guilty of having committed an offence punishable Under Section 395, IPC, and was awarded a sentence of seven years by the learned Sessions Judge, Balasore. The matter was carried in appeal before this Court in Jail Criminal Appeal No. 83 of 1991. By judgment dated 22-4-1994 the appeal was dismissed, but there was modification of sentence from seven years to five years.
The petitioner's case is that he is in custody since 1987, and has already spent more than seven years as a convict and therefore, by exercise of inherent powers of this Court, the aforesaid two sentences may be directed to run concurrently.
3. The power to direct for concurrent running of sentences has its matrix in Section 427 of the Code. The said section provides that if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such imprisonment 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. If no such indication is given, the sentence shall run consecutively. It is for the Court dealing with the subsequent case, if it feels called upon to do so, to pass an order that the sentences should run concurrently with the previous sentence. The High Court may exercise its inherent jurisdiction Under Section 482 to secure ends of justice and give a direction that the sentences shall run concurrently. Under Section 386(b) there is no impediment or bar in the way of an appellate Court to pass a direction contemplated by the provisions of Sub-sec (1) of Section 427. But if the appeal is already dismissed, that Court will no loger have jurisdiction to pass such an order. Even the High Court cannot exercise jurisdiction Under Section 427 after the appeal is dismissed. It is, however as indicated supra, in exercise of inherent jurisdiction under Sac. 482 of the Code, High Court may exercise jurisdiction to secure ends of justice. The discretion conferred on the Court Under Section 427 has to be exercised on some judicial principle.
4. The general rule is that sentences to run from the time of their being passed and this section makes an exception in the case of persons already undergoing imprisonment i.e . subsequent sentence shall commence at the expiration of the previous sentence, unless the Court directs that it shall run concurrently with the previous sentence. This rule has no application if (an the transaction relating to the offence is not the same, or (b) if facts constituted to offences are quite different. Unless Court directs that such sentence shall run concurrently with such previous sentence the imprisonment shall commence at the expiration of sentence to which offender has been previously sentenced. Sub-section (1) of Section 427 contemplates a sentence anterior in time to tha one which a person is undergoing, and also a subsequent sentence on a subsequent conviction. A concurrent sentence carries the inbuilt conception of the prisoner undergoing the sentences in connection with two different punishments imposed in two different casas simultaneously or concurrently at the same time. Law has resorted to a fiction and has treated the sentence being undergone by the prisoner as being undergone for both the offences simultaneously or concurrently. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constituted two offences under two enactments, generally it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. No single consideration can definitely determine the proper sentence. In arriving at an appropriate sentence, the Court must consider and sometimes reject many factors. In consecutive sentences, in particular, the Court cannot afford to be blind to imprisonment which the accused is already undergoing Similar view was expressed by aoex Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Asst, Collector of Customs (Prevention), Ahmedabad and Ors. : AIR 1988 SC 2143. The Court must apply its mind to the facts and circumst- ances and should not make it a meaningless exercise, missing nuances ot the case. The Court in exercise of power Under Section 482 can direct sentence to run concurrently. Such an order can be passed to secure ends of justice. But the power should not be used in a routine manner.
5. If a situation arises for invoking the inherent power of the Court Under Section 432, the Court has to see whether the circumstances and the object for which the inherent power is to be exercised are in existence and can be achieved. It is equally well-established that the inherent power is to be exercised to do the right and to undo a wrong in the course of administration of justice and this power has to be exercised sparingly only when the Court feels that the ends of justice require it and not as a matter of routine, When the applicants are hardened criminals, the ends of justice do not require that the sentences should be made to run concurrently. Where, offences giving rise to separate trials and convictions are distinot and are not intimately connected, the sentences should be made to take the normal course and it would not be a proper exercise of judicial discretion, more so in the exorcise of the inherent power of the Court, to make them run concurrently.
6. Section 482, of the Code is statutory recognition of age-old and well-established principle that even Court has inherent power to act ex debito justitine to do that real and substantial justice for the administration of which alone it exists or to prevent abuse of process of Court. The authority of Court exists for the advancement of justice and if any attempt is made to abuse that authority, so as to prevent justice, the Court must have power to prevent that abuse. The rule of inberent power has its source in a Latin Maxim 'Suando lex aiiquid alicui concedit, concedere videtur id sine quo resipso facto non petest'. which means that 'when the law gives anything to any one, it gives also all those things without which the thing itself could not exist.' What are ends of justice To the particular result in any particular case, justice is indifferent. It is justice by ascertainment of truth as to the facts on a balance of plus and minus factors.
7. It is submitted that direction can be given for concurrent running of the sentence by exercise of power Under Section 482 of the Code, and by the same analogy, direction can be given under Sac. 482 for set-off of period suffered in custody in one case against sentence imposed in another. Without entering into controversial arena about- jurisdiction to exercise power Under Section 432. It can be looked at from another angle. Even while exercising discretion conferred Under Section 427 the same has to be exercised on judicial principles. If a situation arises for invoking inherent power Under Sections 482, Court has to see whether circumstances and the object for which inherent power is to be exercised are in existence, and can be achieved. It has to be equally established that inherent power is to be exercised to do right and not to do wrong under it. It can be exercised sparingly only when the Court feels furtherance of ends of justice requires it, and not as a matter of routine. In a case of hardened criminals, and habitual offenders, benefit was refused by Kerala High Court. It was observed that ends of justice requires that sentence should be run consecutively. (See Sukumaran Nair v. State of Karala ) (1983) 2 KLT 1018). Section 427 of the Code directs th3t one sentence takes effect after the other. The sentencing Court has discretion to direct concurrency. The investiture of such discretion carries with it inbuilt requirement to exercise it on sound principles and not in a routine manner. Unprincipled exercise or unregulated benevolence of such discretion may ultimately go against statutory intents.
8. Seriousness of the offences with which the petitioner was found guilty leaves no manner of doubt that ha is a hardened criminal and habitual offender. Petitioner's early release would not be for the benefit of the society which would rather be detrimental. In the aforesaid premises, prayer for a direction by exercise of power Under Section 427 of the Code being without any substance is rejected.
The application is accordingly disposed of.