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2006(8) Supreme 1011
SUPREME COURT OF INDIA
(From Andhra Pradesh High Court)
S.B. Sinha and Markandey Katju, JJ.
M.R. Kudva - Appellant
versus
State of Andhra Pradesh –Respondent
Criminal Appeal 1330 of 2006
(Arising out of SLP (Criminal) No. 1405 of 2006)
Decided on 15-12-2006
Counsel for the Parties :
For the Appellant : V.B. Joshi, Advocate.
For the Respondent : A. Sharan, A.S.G., Amit Pawan, P. Parmeshwaran and Mrs. D. Bharathi Reddy, Advocates.
(ii) Code of Criminal Procedure, 1973 – Section 427 – Not invoked in the original cases or in the appeals – A separate application (under Section 482 of Code of Criminal procedure) before the High Court after dismissal of special leave petitions was not maintainable – Such application was not maintainable and High Court could not have exercised its inherent jurisdiction while passing the judgments in appeal.(1988) 4 SCC 183; AIR 2000 SC 3544 – Distinguished. (Para 12)
(iii) Code of Criminal Procedure, 1973 – Section 482 – Cannot be an appropriate remedy for applying provision of Section 427 of the code - Having regard to the fact that neither the Trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted, the said provision could not be applied by the High Court in a separate and independent proceeding.(Para 12)
Facts of the case
(A) Appellant a bank Manager in Syndicate Bank sanctioned a loan to a customer for Black & White Television, while the scheme was for something else. In another case he sanctioned a loan for obtaining plots from the Housing Society. Central Bureau of Investigation (CBI) registered two cases: one under Sections 120B/420, 468, 471 of the Indian Penal Code (IPC) read with Section 5(1) of the Prevention of Corruption Act, 1947 and the other under Sections 120B/420, 468, 471 IPC, read with Section 5(1) of the Prevention of Corruption Act, 1947 against him and filed charge sheets. Appellant convicted and sentenced in both cases.
(B) Appeals preferred against these judgments and orders before the High Court of Andhra Pradesh were dismissed. Special Leave Petitions had also been dismissed. Appellant thereafter moved before the High Court under Sections 482/427 of the Code of Criminal Procedure, praying, inter alia, that sentences imposed upon him in both the cases be run concurrently. The said application has been rejected by the High Court by reason of the impugned judgment.
(C) Findings of the Court – Such matters of application of provision of Section 427 of the Code not invoked in the original cases or in the appeals cannot be applied subsequently in supplemental proceeding.
JUDGMENT
S.B. Sinha, J. - Leave granted.
2. Application of the provision of Section 427 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’) falls for consideration in this Appeal which arises out of a judgment and order dated 17.10.2005 passed by a learned Single Judge of the High Court of Andhra Pradesh in Criminal Petition No. 3917 of 2005.
3. Appellant was a bank employee. He worked as a Manager in Syndicate Bank at its Branch at Abid Road, Hyderabad. His job was to advance loans. Allegedly, in one case he sanctioned a loan to a customer for Black & White Television, while the scheme was for something else. In another case he sanctioned a loan for obtaining plots from the Housing Society. The Central Bureau of Investigation (CBI) had also filed Charge sheets against the appellant in both the cases. Two cases were, thus, came to be registered against him; one being Criminal Case No. 9 of 1992 and another being Criminal Case No. 5 of 1993. The judgment in the first case was pronounced by the Special Judge, C.B.I. Court on 04.07.1997 whereby and whereunder he was convicted for commission of offences punishable under Sections 120B/420, 468, 471 of the Indian Penal Code (IPC) read with Section 5(1) of the Prevention of Corruption Act, 1947. He was sentenced to undergo 18 months’ rigorous imprisonment. Different amounts of fines for offences punishable under Sections 120B/420, 468, 471 IPC and Section 5(1) of the Prevention of Corruption Act, 1947 were also imposed. By a judgment of conviction and sentence dated 06.08.1997, the Special Judge, CBI, found him guilty for commission of offences punishable under Sections 120B/420, 468, 471 read with Section 5(1) of the Prevention of Corruption Act, 1947 in Criminal Case No. 5 of 1993 and sentenced him to undergo rigorous imprisonment for two years. Different amounts of fines for offences punishable under the said sections were also imposed against him.
4. Appeals preferred there against before the High Court of Andhra Pradesh were registered as Criminal Appeal No. 792 of 1997 and Criminal Appeal No. 894 of 1997 respectively. The appeals were dismissed by a judgments and orders dated 30.12.2004 and 20.01.2005 respectively. Special Leave Petitions filed there against have also been dismissed by this Court by an order dated 11.05.2005. Appellant thereafter filed an application before the High Court purported to be under Sections 482/427 of the Code of Criminal Procedure, praying, inter alia, therein that the sentences imposed upon him in both the cases be directed to run concurrently. The said application has been rejected by the High Court by reason of the impugned judgment.
5. Mr. V.B. Joshi, the learned counsel appearing on behalf of the appellant, would, inter alia, submit that having regard to the facts and circumstances of this case and particularly in view of the fact that the nature of offence in both the cases being the same, the High Court should have directed that sentences imposed upon the appellant to run concurrently and not consecutively.
6. Section 427 of the Code of Criminal Procedure reads as under:
“427. Sentence on offender already sentenced for another offence.-(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence :
Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subseq
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