JADU ALIAS JADUA BHOI Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under S. 482, Cr. P.C. for release of the petitioner who has been undergoing sentences on account of convictions in different trials. The admitted facts are that the petitioner was taken to custody on 10-5-1982 and was tried in S.T. No. 3/94 of 1982 on account of occurrence on 4-1-1982 for offences u/ Ss. 395 and 397, IPC. In that case he was convicted and sentenced by the Second Additional Sessions Judge, Puri, on 7-10-1983 to undergo R.I. for a period of seven years. The petitioner preferred Criminal Appeal No. 341 of 1983 which was dismissed by this Court on 10-12-1990. While undergoing such sentence he was also tried in S.T. No. 151 127 of 1983 in respect of an occurrence on 3-1-1983 u/ S. 457 and 395, IPC and was convicted and sentenced by the Assistant Sessions Judge, Puri, on 12-7-1984 to undergo R.I. for five years. He also stood a third trial u/ S. 457 and 392, IPC in ST Case No. 25/174 of 1984 for an occurrence on 15-3-1983. In that case he was convicted and sentenced by the Assistant Sessions Judge, Puri, on 13-5-1985 to under- go R.I. for five years. Apart from these convictions, he also stood trial u/ S. 395, IPC in S.T. No. 82 of 1983 wherein he was convicted and sentenced by the Sessions Judge, Puri, to undergo R.I. for five years, but was acquitted in Jail Criminal Appeal No. 148/84. In all the cases, while the sentences were imposed, no orders were passed directing those to run concurrently. The petitioner has now come before this Court with the prayer that since he has already spent nine years in Jail he should be released treating the sentences as concurrent instead of consecutive. Such move by the petitioner is resisted by the learned Additional Standing Counsel on the ground that since no direction had been made at the time of passing of the judgments for the sentences to run concurrently, such order should not be passed.

(2.) Undoubtedly Session 427, Cr. P.C. provides that when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment shall commence at the expiration of the imprisonment to which he had been previously sentenced unless the court directs that the subsequent sentence shall run concurrently with the previous sentence. The only exception is that when a person already undergoing sentence of imprisonment for life is sentenced, on a subsequent conviction, to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

(3.) The provisions being specific it is undoubtedly the intention of the legislature that ordinarily the sentences imposed upon a convict in different cases are to run consecutively unless direction is issued to the contrary. It is also correct to state that a criminal court after passing the judgment having become functus, officio, can no more pass an order directing the sentences to run concurrently unless the same has been passed at the time of judgment. But however it does not appear that power of this Court is in any way fettered by S. 427, Cr. P.C. to give a suitable direction in the event the Court feels that in the interest of justice, the sentences should run concurrently. The law on the subject has been clearly discussed in (1983) 55 Cut LT 73 : (1983 Cri LJ 527) (Basudeb Pradhan v. State of Orissa) where similar contention of the learned Additional Government Advocate was repelled and the power of the court under the inherent provisions was upheld. The learned counsel apearing for the petitioner has also placed reliance on several other decisions on the same question which however are not necessary to be referred to.