Naheed Ara Moonis, J. - (1.) HEARD learned counsel for the applicant and learned A.G.A. and have been taken through the record. By means of the present application, the applicant has invoked inherent jurisdiction of this Court under Section 482, Cr.P.C. with a prayer to quash the impugned order dated 15.4.2013 passed by the learned Judicial Magistrate, Mau District Chitrakoot in Case No. 7/14/2013, State v. Fakira, under Section 374, Cr.P.C. Police Station. Mau District Chitrakoot and further prayed to release him in Criminal Case No. 197/IX of 2003, State v. Fakira, vide Case Crime No. 272 of 1996 under Section 5/25, Arms Act, Police Station Mau District Chitrakoot and the Criminal Case No. 216/12 of 2003, State v. Fakira vide Case Crime No. 110 of 1997 under Sections 5/25, Arms Act Police Station Mau District Chitrakoot.
(2.) THE genesis of the facts emanating from the prosecution in a short compendium is that the applicant was prosecuted in a case under Section 5/25, Arms Act vide Criminal Case No. 272 of 1996 in respect of an occurrence dated 8.9.1996 wherein he was arrested with country made pistol. The applicant stood for trial vide Sessions Trial No. 197/IX/2003 and offence was found to have been proved against him hence he was convicted by the Judicial Magistrate, Mau Chitrakoot vide order dated 31.1.2008 awarding sentence of three years rigorous imprisonment with fine of Rs. 1,000. In default of payment of fine, the applicant had to serve out two months simple imprisonment. Against the aforesaid two orders dated 31.1.2008 in two separate cases, the applicant filed two revisions before the lower appellate court. Both the revisions were rejected by separate orders upholding the conviction and sentence awarded by the trial court. After serving out the sentence in one case, an application was moved on behalf of the applicant that he may be released since he has already completed three years in respect of the sentence awarded by the trial court in one case and the sentence and conviction awarded by the trial court in the second case ought to have been treated as concurrent sentence. Report was called for by the learned Magistrate on the application moved by the applicant's wife dated 5.2.2013 and on the basis of the report of Senior Superintendent District Jail Banda dated 1.2.2013 rejected the application of the applicant vide impugned order dated 15.4.2013. The submission of learned counsel for the applicant is that the conviction and sentence under Section 5/25, Arms Act has been awarded by the learned Judicial Magistrate on the same date for two distinct trials awarding sentence of three years but due to sheer mistake, it has not been mentioned that the sentence in both the cases shall run concurrently. Now the applicant has completed more than five years from the date of conviction, i.e., 31.1.2008 therefore, he is entitled to the benefit of subsequent sentence to run concurrently. Further, detention in jail is absolutely unjust and illegal for remaining in custody. In support of the aforesaid argument, learned counsel for the applicant has relied upon the decision of this Court, Ulfat v. State, : 1970 Cr.L.J. 767, and contended that this Court has held that the sentence passed in subsequent trial shall run concurrently. He has placed reliance upon para 9 of the said judgment which runs hereunder: "9. The question that now remains to be considered is whether the three prisoners can now ask this Court to pass the necessary orders under Section 397(1) of the Criminal Procedure Code. It was urged on behalf of the State that if at the trial the prisoners did not bring to the notice of the court that they were already undergoing a sentence of imprisonment for a previous conviction as that fact was specially within their knowledge, they cannot now have their subsequent sentence ordered to run concurrently with the previous sentence. I do not think the law throws a burden on the undertrial to place before the court the facts relating to his previous conviction and sentence. I think it is the duty of the prosecutor to bring it to the notice of the Judge presiding over the subsequent trial all the facts relating to previous conviction and sentence based thereon which the undertrial was already undergoing for the previous conviction as by its Section 397 the Criminal Procedure Code casts duty on the court to consider the question of the subsequent sentence being made concurrent when the offender had already been sentenced for another offence earlier and he was undergoing imprisonment. This approach which I have indicated is supported by the relevant provisions of the Jail Manual of Uttar Pradesh. Every offender who is sentenced to undergo imprisonment is sent to jail with a duly filled warrant for the purpose. A duty has been cast on the Superintendent of Jail to which the prisoner is sent to examine the warrant of every convicted prisoner and satisfy himself as to the particulars mentioned in paragraph 23 of Chapter III of the Manual. One of such particulars is that the warrant ought to show that the orders of the court were clearly stated in the warrant, as for example, in the case of a convict already undergoing a sentence whether the sentence or sentences passed subsequently shall taken effect at once or after the expiry of the current sentence and in case of prisoners previously convicted a statement of their previous convictions giving the date, the nature of offence and the term of the sentence. Paragraph 36 of Chapter III of the Jail Manual then provides that the Superintendent will make a special examination of the warrant when a prisoner already undergoing a sentence of imprisonment is sentenced to imprisonment and find out if the provisions of Section 397 of the Criminal Procedure Code, 1898, have been followed. The Jail Manual thus contemplates that the warrant which is forwarded with the convicted prisoner will contain the facts about his previous conviction and the sentence passed thereon and also the action taken under Section 397 of the Criminal Procedure Code in the case of such a prisoner. Paragraph 28 of the Jail Manual empowers the Superintendent to return the warrant for correction to the officer who issued it if by any error or omission the warrant is defective in form or otherwise irregular. It clearly follows from this that in case of a prisoner who has already been previously convicted for an offence and was undergoing sentence of imprisonment, the Superintendent is under a duty to examine the warrant to see if the provisions of Section 397 of the Criminal Procedure Code have been followed and if he finds that it is not so, he is under a further duty to return the warrant as it would be defective on account of an omission. I have referred to the provisions of the Jail Manual to show that the exercise of power by a court under Section 397 of the Criminal Procedure Code has not been treated as a matter of pleading by the accused, but it is a provision which has been enacted for due administration of criminal justice and the courts who convict and pass sentence of imprisonment on the accused are bound to consider whether the sentence passed by them is to run concurrently with the sentence of imprisonment inflicted on the accused under some previous conviction. Once I am correct in that approach, in my judgment, there has arisen a clear case of omission on the part of the learned Judges who held the respective trials of these three prisoners. Now it has been brought to the notice of this Court that all these three prisoners were undergoing sentence of imprisonment under previous conviction, I think the ends of justice require that this Court should take recourse to powers under Section 561A of the Criminal Procedure Code and consider whether the subsequent sentence be ordered to run concurrently with the earlier sentence as provided by Section 397(1) of the Criminal Procedure Code. I, therefore, come to the conclusion that this Court has jurisdiction in the instant cases to consider the question whether the sentences awarded against the three prisoners in the subsequent trial should be made concurrent with their previous sentences."
(3.) PER contra learned A.G.A. contended that the learned Magistrate has rightly rejected the application which was moved on behalf of the applicant. In respect of two distinct offences committed on different dates, the applicant was prosecuted which is evident from the report of District Jail Superintendent and in both the cases warrant was issued separately. Since the warrants to serve out the sentence were issued separately therefore, the applicant has to serve out the sentence after expiry of the sentence of the first case. The sentence in both the cases shall run consecutively after expiry of the one sentence. It was specifically mentioned in the report that in the first case vide S.T. No. 197/11/03 arising out of the Case Crime No. 272/96, the conviction will run till 14.2.2012, thereafter from 15.2.2012, sentence will start in Sessions Trial No. 216/9/03 arising out of Case Crime No. 110 of 1997 under Section 5/25 from 15.2.2012. The sentences in both the cases will conclude only on 14.2.2015 and in case of deposit of fine in both cases and if the conduct of the applicant was found to be good, he can be released prior to expiry of the aforesaid period hence the applicant is now undergoing sentence in respect of 2nd trial even if he has completed the sentence in one case. There is no illegality or perversity in the order of the learned Magistrate. The instant petition is liable to be dismissed.;