SHRI JAINARAYAN SAH Vs. STATE OF ASSAM

JUDGEMENT

(1.) THE Petitioner was convicted under Section 376 of Indian Penal Code by the Assistant Sessions Judge, Tezpur in Sessions Case No. 126(D -T) 1975 and was sentenced to R.I. for four years and a fine of Rs. 1000/ -. This was on 19.6.76. While under going this sentence, he was found guilty under Section 324 of the Penal Code in Sessions case No. 82(D -T) 1977 0n 30.7.77 and was sentenced to undergo R.I. for 3 years. In the second judgment, there was no reference to any previous conviction and, as such, nothing was said as to whether the sentence under Section 324 would run consecutively or concurrently. The Petitioner desired his release on completion of the aforesaid period of sentences by taking them to run concurrently. The jail authority however, desired a specific order in this regard, which was found wanting in the commitment warrant. It was stated by the Superintendent of the District Jail, Tezpur that as per Rule 242 of the Assam Jail Manual Volume -I, the aforesaid sentences were to be counted chronologically. The matter was, there after, placed before the learned Assistant Sessions Judge who, by his impugned order, has held that he was prohibited by Section 362 of the Code of Criminal Procedure to order for concurrent running of the sentences. He, further felt that only this Court in its inherent Jurisdiction or in exercise of power of revision could grant the prayer The Petitioner has accordingly filed this application to seek the above order.

(2.) THE first question which needs to be examined is whether Section 362 of the Code which has prohibited alteration or review of a judgment or final order disposing of a case, except to correct a clerical or arithmetical error, could have stood in the way of the learned Judge in granting the relief prayed for by the Petitioner. There can be no doubt that a sentence is part of the judgment ; indeed, it is one of the main arteries throbbing and pulating a judgment of a criminal court. Alteration of sentence would, therefore, be alteration of judgment. In State of Orissa v. Ram Chander : AIR 1979 SC 87, which was also a case of alteration of sentences, it was clearly held by the Supreme Court that the same could not be done even by the High Court in exercise of its inherent powers in as much as the ban imposed by Section 362 cannot be lifted by taking recourse in the inherent powers. This was made clear in Sooraj Devi v. Pyarelal : AIR 1981 SC 736, which has pointed out that the opening words of Section 362 "Save as otherwise provided by this Code or by any other law for the time being. in force, referred, to those provisions only where Court has been expressly authorised by the Code or other law to after or review its judgment; the inherent power was not contemplated by the aforesaid saving provision.

(3.) SHRI Khatri refers to Section 427 of the new Code, (whose counter -part in the old Code was Section 397) and submits that this provision has conferred an independent power on the Court to direct a subsequent sentence to run concurrently with an earlier sentence, which power could be exercised even after the disposal of the case on merits, since it does not involve any review of judgment. He relies in this connection on A.S. Naidu v. State of M.P., 1975 CriL.J. 493, which has referred to many earlier decisions of different High Courts on this point. A perusal of this judgment and others referred in the decisions noted by the Division Bench shows that divergent views have been held by different High Court in this regard. The Madras High Court in, In re Nachimuthu : AIR 1950 Mad 452, rejected such an application on the ground that as there was no provision of law to review orders passed by a trial court as well as the appellate court the prayer for concurrent running of sentence could not be entertained. A different view had, however, been taken in Jaint Kumar v. State : AIR 1955 Cal 632. The power of ordering concurrent running of sentence was exercised in this case under Section 5618 of the the old Code which had saved inherent powers of the High Court, in respect of those sentences which were awarded by subordinate courts, while stating that this power could not be invoked as regards the sentence imposed by itself. Both these decisions (which have not delved deep into the matter) were noted in Baijnath v. State : AIR 1961 Pat 138, and the learned Single Judge expressed his "cordial assent' to the view taken by the Calcutta High Court, because it was held that the order for concurrent running of sentence did not amount to altering or reviewing the judgment, which will stand as it if, and the order, passed would be a separate order and complete by itself the bar contained in Section 369 of the old Code (akin to Section 362 of the present Code) not operating in such case. It may be pointed out that power under Section 561A was drawn in this case after appeal against the second conviction was summarily dismissed, because of which it was stated that Section 397 could not assist the prisoner, as the power under that provision could not be invoked subsequent to the disposal of appeal. On merits, the case was found fit to invoke inherent power as the facts and circumstances were regarded "so coercive" as to require order of concurrent running of sentence to secure the ends of justice. Another learned single Judge of that High Court refused in Mahavir v. State : AIR 1965 Pat 178 to invoke inherent power on the facts of that case by stating that the power was to be exercised very rarely and only to meet the ends of justice. The Petitioner there was a hardened criminal and had committed dacoity and allied offence a number of times, The view expressed in Baijnath was endorsed by a learned Judge of Andhra Pradesh High Court in Venkana v. State : AIR 1964 AP 449; and after referring to In re Nachumuthu (supra), it was stated that as Section 397(1) of the old Code empowered even the trial Court to order sentences to run concurrently, the High Court could not be in a were position to exercise that power by invoking its inherent jurisdiction.