- (1.) THE facts giving rise to this petition, as stated by the petitioners, are that the petitioners Krishna @ Rajesh and Ramdhari were convicted u/s all IPC and were acquitted u/s 457/380 IPC, in three different cases, by the learned Judicial Magistrate, Chirawa. On appeal, their conviction was maintained but the sentence was reduced from 2 years to 1-1/2 year and fine was maintained. THE petitioners preferred three revision petitions before this Court which were also rejected by this Court vide order dt. 31. 8. 90. THE present petition u/s 482 r/w Sec. 427 Cr. P. C. has been filed, praying that the sentences passed in all the three cases should run concurrently. Notices were issued. Arguments have been heard.
(2.) LEARNED counsel for the petitioners has placed reliance on Mulayam Singh V. State (1974 Cr. L. J. 437) wherein their lordships have held that neither the trial court nor the appellate court is competent to exercise discretion u/s 397 (1) of Old Cr. P. C. after the judgment has been signed but it has further been held that the High Court, u/s 561-A of Old Cr. P. C. is competent to direct that the sentence of imprisonment under a subsequent conviction shall run concurrently with the previous sentence. Reliance has also been placed on Mohan Lal Vs. State of Rajasthan (2) wherein a learned Single Judge of this Court, while disposing of an application u/s 427 Cr. P. C. ordered that it will be just and proper, in view of the fact that the petitioner has already remained in jail for a period of 2 years 8 months, that the substantive sentence awarded to him in seven different cases, should be held to run concurrently. In that case, the accused had been convicted for offences u/s 457 r/w 380 IPC and the sentence awarded was one year and six months. Reliance has also been placed on Bachana Ram V. State of Rajasthan (3) wherein another learned Single Judge of this Court, while dealing with a petition u/s 482 Cr. P. C. ordered, under inherent powers of the High Court, that if the ends of justice require, all the sentences passed in the four different criminal cases should be ordered to run concurrently. In that case also, the accused had been punished u/s. 457 IPC for one year RI in three case and u/s 457/357 IPC, for three years' RI which was reduced by the High Court in revision, to one year. My attention was also drawn to another decision of this Court in Shiv Narain and others V. State of Rajasthan (4) wherein still another Single Judge of this Court dealing with a petition u/s 482 Cr. P. C. ordered that it will be just and proper to direct that the sentences in all the three cases u/s 457/380 IPC should run concurrently. In that case, the petitioner had pleaded guilty and he was sentenced by learned Munsif Magistrate who ordered that the sentences will run consecutively. On appeal, learned Sessions Judge also did not order that the sentences should run concurrently, and against that order of the learned Sessions Judge, that petition u/s 482 Cr. P. C. was preferred in this Court. Yet, another decision was relied, reported in Mohan Lal Vs. State of Rajasthan (1987 (1)WLN 657) wherein a learned Single Judge of this Court, in a criminal miscellaneous petition, ordered that the sentences awarded in the three cases u/s 379 and 380 IPC should run concurrently. In that case, it was further observed that the accused was a young lad of 20 years and that he used to earn his livelihood only by committing petty thefts and breaking locks of residential houses and commercial premises and the booty collected by the petitioner was not much. Out of ten cases of theft, he was convicted only in three and if the sentences are not ordered to run concurrently, he will have to remain in jail for 17 years and six months. Yet, an other case was brought to my notice, of Rajendra Vs. State of Rajasthan (1988 (1) RLR (687) wherein, still another Single Judge of this Court, relying on Mohan Lal's case (supra), while dealing with a petition u/s. 482 Cr. P. C. , ordered that it will be appropriate and in the interest of justice to order that the sentence passed in two separate cases u/s. 3/25 Arms Act, should run concurrently. On the other hand, learned counsel for the State has submitted that an order u/s 427 Cr. P. C. could be passed at the time of deciding the revision petition and once revision petitions have been dismissed and an order u/s 427 Cr. PC has not been passed, it amounts to in exercising discretion u/s 427 Cr. PC and meaning thereby that the intention of the court was that the sentences should run consecutively and not to interfere, but use of the extra ordinary power u/s 482 Cr. PC will amount to review of the earlier decision in criminal revision petition which is not permissible u/s 362 Cr. P. C. and in this connection reliance has been placed on State of Orissa Vs. Ramchandra Agrawal (7) and a recent decision of the Supreme Court in Seni Rakhia V. Dolo Mukerjee (8 ).
(3.) HE has further brought to my notice another judgement of this court in 1988 (1) RLR 692 where in this Court did not exercise its discretion in ordering that the sentences in the two cases should run concurrently. The accused petitioners had been sentenced in three different cases and awarded separate terms a convicted for conducting eye operations, where a large number of persons became blind. In that case, the cases of Mohan Lal (Supra) were distinguished. I have given my thoughtful consideration to the whole matter and have also gone through the various authorities cited at the Bar. u/s 427 Cr. P. C. the court has been given a discretion to order that the sentence passed in subsequent case (s) should run concurrently with the previous sentence and the court has to exercise that discretion looking to the facts and circumstances of each case. The legislature never intended that in every case, if a person is convicted for different offences, in different cases, the sentences in all the cases should run concurrently because that will amount to giving a premium to habitual offenders. It will be different matter if the trial court while awarding sentence, keeps in mind, the fact that the accused has been convicted previously and then, exercises discretion u/s 427 Cr. PC in favour of the accused. No hard and fast rule can be made as to in what circumstances, the court should exercise discretion u/s 427 Cr. P. C. in favour of the accused. It will depend on facts of each case. It may be, if it is a case of petty thefts by a poor young boy, who has no other source, except the booty, that a lenient view may be taken as in the case of Mohanlal (supra) but the present case, is not a case of petty theft but the petitioners had been convicted u/s 411 IPC, Since the court has to exercise its discretion looking to the facts and circumstances of each case, there can be no precedent in such matters. In the present case, the conviction of the petitioners was confirmed by this Court while dismissing the revision petitions and it was for this court to exercise discretion u/s 427 Cr. PC, while deciding those revision petitions. By not exercising discretion u/s 427 Cr. PC in favour of the accused petitioners it was implied that the court did not think it proper and just, in the facts and circumstances of the case, that the sentences should run concurrently, and if in a petition view, this will amount to review of its earlier decision, as has been held in Ramchandra and Doli Mukherjee's cases (supra), relied on by the learned counsel for the State. In this view of the matter, I do not find any force in this petition u/s 482 Cr. P. C. and the same is dismissed. . ;