Whether an application under Section 482 of the Code of Criminal Procedure ('the Code', for short) claiming the benefit under Section 427 of the Code is maintainable, is the question to be considered in this case.

Section 427 (1) of the Code reads as follows:

"427. Sentence on offender already sentenced for another of fence:- (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."

In Subramanian v. State of Kerala the is Court held that such power can be exercised in a petition under Section 482 of the Code. But in M.R. Kudva v. State of Andhra Pradesh2, the Apex Court decided otherwise and at paragraph 12 of the above judgment it was held as follows:

"12. However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal. Section 482 of the Code was, therefore, not an appropriate remedy having regard to the fact that either 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, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed."

2. The learned single Judge, who considered these cases, noting the above two decisions, referred the following question to the Division Bench:

"Does the dictum in Subramanian v. State of Kerala1 stand overruled by the observations of the Supreme Court in M.R. Kudva v. State of Andhra Pradesh2?"

1. 1983 KLT 452: 1983 CrLL.J. 1262.

2. 2007 (1) Crimes 50: 2007 CrL.J. 763 (SC).

3. The learned Judge observed as follows:

"It is true that the Supreme Court has not considered the question in greater detail in para 12 and many of the points/issues considered in Subra, Yamana v. State of Kerala (1 supra) have not been considered by the Supreme Court. The crucial question then is whether the decision in Subramanian v. State of Kerala (1 supra) survives in view of the observations in MR. Kudva v. State of Andhra Pradesh (2 supra). The matter is one of public importance. It has come to the stay as a practice in this Court for the accused facing sentences in plurality of cases to come before this Court and claim concurrency under Section 427 of the Cr.P.C.1 am of opinion that it will be ideal and appropriate to refer the matter for decision of a Division Bench. Authentic pronouncement of a Division Bench is necessary in the circumstances, I feel"

4. A plain reading of Section 427 indicates that normally sentence imposed in different crime cases shall run consecutively one after another and not concurrently. That is the legislative mandate. But the Court has power to make it concurrent in appropriate circumstances. The concerned Court which convicts an accused has to decide the appropriate sentence to be imposed, whether the right of set off should be given and whether the sentence should be imposed concurrently to the earlier