AZIJ KHAN PATHAN Vs. STATE OF M P

JUDGEMENT

(1.) By this application under Section 482 of the Cr.P.C. read with Section 427 of the Cr.P.C. the applicant Azij Khan Pathan who is in jail has moved the application for directing the sentence to run concurrently. Brief facts necessary for elucidation are that there were two convictions against the present accused applicant Azij Khan for two separate offences as follows:

(2.) Counsel for the petitioner has candidly admitted that there was no prayer for making the sentence, to run concurrent either in the earlier appeal No. 1140/2004 or in the appeal No. 796/2004 which was decided at later date i.e. 5.04.2010; and that, this present application is being moved separately under Section 482 of the Cr.P.C. since the applicant is in custody from 20.10.2001. He prayed for direction that the sentence be directed to run concurrently as the applicant will have completed his entire sentence in both the cases. Counsel relied on the following few judgments of the Apex Court as well as various High Courts.

(3.) Per contra Counsel for the respondent/State has relied on two decisions to oppose the Counsel for the applicant. Relying on judgment of Andhra Pradesh High Court in the matter of Amarnath Umakanth v. State of A.P, 1999 CrLJ 3801 Counsel stated that the learned single Judge had categorically considered the question whether the inherent powers of the High Court to direct subsequent sentence to run concurrently with earlier sentence was considered in its entire scope. The Court found that the petitioner had undergone the earlier sentence and the said sentence was not suspended during the pendency of the appeal and in this light order directing subsequent sentence to run concurrently with the earlier sentence could not passed. Moreover the same view has been reiterated recently by the Apex Court in the matter of M.R. Kudva Vs. State of A.P., 2007 2 SCC 772 whereby the Apex Court had specifically considered the question whether in a given case when the provision under Section 427 of the Cr.P.C. was not invoked in the original cases or appeals or separate application filed before the High Court after the dismissal of the SLP was not maintainable, the Court held that the High Court could not have exercised its inherent jurisdiction in a case of this nature which it has previously not exercised while deciding the appeals. The Apex Court further held that the application under Section 482 of the Cr.P.C. is not an appropriate remedy as neither of the trial Judge nor High Court while convicting and sentencing the appellants indicated that sentences passed against him in both the cases shall run concurrently or that 427 of the Cr.P.C. would be attracted and hence Section 427 of the Cr.P.C. Could not rightly be applied in a separate and independent proceedings by the High Court and the appeal was therefore dismissed. Counsel prayed for dismissal of the application.