ORDER
B.A. Khan, J.
1. Petitioner was first sentenced to 6 years RI under Sections 307/34 R.P.C. in file No. 59 of 1976 by Add. Sessions Judge, Jammu. He was later sentenced to 6 months' RI for the same offences in a separate trial by the learned Sessions Judge, Jammu. He filed Crl. first Appeal Nos. 52/80 and 17/ 81. In the first appeal his sentence of 6 months' RI was upheld but in the second it was reduced to 3 years. It was not, however, provided whether the sentences would run concurrently. He has now filed this petition under Section 397, Cr.P.C., and prays for the two sentences to be ordered to run concur rently and not consecutively.
2. It is the common ground that the petitioner had not asked for this either before the trial Court or the Appellate Court. Therefore, it remains to be seen whether he could do so now by approaching this court in an independent proceedings and purportedly under Section 397 Cr.P.C.
3. According to Mr. Gandhi he was disabled to do so for having tailed to ask for it before the trial or the appellate Courts. The grounds taken by him also would not justify any grant of relief to him. The Court was also incompetent to come to his rescue having become functus officio after it disposed of his appeals.
4. Learned counsel for the petitioner, Mrs. S. Kour, however, urged that this Court could pass appropriate directions in exercise of' its inherent jurisdiction under Section 361-A, Cr.P.C. She cited AIR 1988 SC 2143 : (1989 Cri LJ 283), 1983 Cri LJ 1262 (Kerala), 1982 Cri LJ 1844 (Andh Pra), AIR 1964 Andh Pra 449: (1964 (2) Cri LJ 377) and 1975 Cri LJ 498 (Madh Pra), in support.
5. There is considerable divergence Of opinion between various High Courts on the point. One view is that the High Court possess the inherent power under Section 561-A to order running of sentences concurrently and the other is that it has also the independent power under Section 397(1), Cr.P.C. The third extreme view is that it is powerless unless seized of an Appeal or Revision by the convict. The first view is contained in a Full Bench judgment of the Allahabad High Court reported in 1974 Cri LJ 1397: (at p. 1400).
'It would be competent for the High Court in exercise of its inherent power to direct that the sentences under a subsequent conviction may run concurrently with the previous sentence even if the stage for exercise of discretion under Section 397 of the Code, is over in the circumstances, where it would serve in all the three purposes mentioned in the section i.e., to give effect to any order under the Code, or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice.'
The Madhya Pradesh High Court supported the second view in 1975 Cri LJ 498 holding that 'the High Court can exercise its discretion under Section 397(1), Cr.P.C., and direct the sentence awarded in a subsequent trial to run concurrently with the sentence awarded in a previous trial, even after appeals or revisions preferred by the convict against his convictions in the said trials, have been dismissed.' According to this view, sub-section (1) of Section 397 confers an independent power on the High 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.
6. The third view is expressed by the Kerala High Court in Bhaskara v. State of Kerala (1978 Cri LJ 738) wherein Janki Amma, J. ruled as under (at p. 741 of Cri LJ):
'A direction how the sentence in two cases should run issued subsequent to disposal of cases would amount to alteration of judgment which is barred under Section 362 (Central Code) (corresponding to Section 369, Cr.P.C.). If a direction under Section 31(1) (Central Code) cannot be issued after pronouncement of a judgment, on a motion made by the accused, I fail to see how the power under Section 427(1) (Central Code) (corresponding to Section 397(1), Cr.P.C.) can be issued after the pronouncement of the subsequent judgment. I, therefore, hold that the direction referred to should be given at the latest when the subsequent judgment is pronounced.'
On exercise of inherent power under Section 561-A, His Lordship, observed :
'The inherent power is not to be invoked to serve purposes for which there are express, provisions of law and also where there is an express provision barring a particular remedy. Once the Cr.P.C. forbids revision or alteration of judgment once it is signed by an express provision viz., Section 369), there is no question of resort to inherent power.'
While I attach great value to all the three views taken, I am inclined to adopt a middle path and go alongwith the view held by a Full Bench of the Allahabad High Court in 1974 Cri LJ 1397, i.e., the High Court can pass the requisite direction in exercise of inherent power even after the disposal of cases for the purposes laid down in the section viz., (a) to give effect to any order under the Code; or (b) to prevent the abuse of power of Court; or (c) to otherwise serve the ends of justice. I say so for my own reasons.
7. Cases are conceivable, where a convict out of ignorance or because of default of his counsel or for any other reasons may omit to ask for running of the sentences concurrently in the subsequent trial. Or it may as well be that the fact of earlier sentence is not to the notice of the Court at the trial, appellate or revisional stage. The convict, is confronted with a fait accompli in such situation and he cannot be rendered remedy less. Nor can it be said that the High Court is powerless in the circumstances, because if the High Court feels persuaded in peculiar circumstances, it would certainly exercise its inherent power to secure the ends of justice. The situation, therefore, is not remedyless and I am convinced that the High Court possess the inherent power to pass appropriate directions in a fit case and while doing so it would not be altering any judgment or sentence in the process. The judgment remains intact and so does the sentence because the High Court in such a case would be only dealing with the manner of the running of the sentence and nothing more.
8. All said and done, it is difficult to accept that the High Court has any independent power to pass such direction under Section 397(1), Cr.P.C., after the case of the convict stands disposed of Such a view, to my mind, proceeds on misappreciation of the true import of Section 397(1), the relevant part of which reads thus:
'397; Sentence on offender already sentenced for another offence.- (1) When a person already 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:xx xx xx xx'
A plain reading of this provision shows that it creates an exception in case of persons already undergoing a sentence and provides that the second sentence shall follow the first one, unless the Court directs that the subsequent sentence shall run concurrently with the previous sentence. In other words, the general rule is that the two sentences are to run consecutively unless the Court directs their running concurrently. The word 'Court' occurring in the section is very significant. ft only refers to the sentencing Court, i.e., the Court seized of a trial, appeal or revision, which indeed includes the High Court also. But it cannot be read to mean as High Court only. That is not so and it cannot be so and any such interpretation would lead to anamolous results and leave it open to the High Court to pass directions at any stage at the cost of the jurisdiction of the Court which is seized of the case. Moreover, it would confer an additional jurisdiction on the High Court which is not intended. If the legislature had intended so, it would have used the words 'High Court' instead of the 'Court'.
9. Viewed thus, it cannot be held that the High Court has any independent jurisdiction under Section 397(1), Cr.P.C. to order running of the two sentences concurrently. Its jurisdiction is only as an appellate or revisional Court and once it has exercised it, the Court becomes functus officio and can deal with any such request only in exercise of its inherent power under Section 561-A and that too for the purposes mentioned therein.
10. The only other thing that remains to be seen is the circumstances under which the High Court should exercise this power. No cut and dry formulae can be suggested or laid down in this regard. It all depends upon the circumstances of a case and the exercise of its discretion by the Court on sound judicial principles. Different situations are conceivable which may be related to age, health, conduct etc. of a convict serving the first sentence. But then it all depends upon whether the Court feels satisfied in the circumstances. In the present case, petitioner has failed to show any good cause. His total case is that he is old and that his family would be ruined if the relief is not granted to him. He has not said anything about his conduct while serving first sentence or any other circumstances which could entitle him to relief. He has also not placed any proof on record in support of the pleas taken by him. In the circumstances, I find no justification to grant his prayer.
This Cr. M.P. is accordingly rejected. This shall, however, leave the petitioner free to approach this Court again, if so advised.