1. Petitioner was first sentenced to 6 years RI under Section 307/34 R.P.C. in file No. 59 of 1976 by Add. Sessions Judge, Jammu. He was later sentenced to 6 months RI for the same offences in a separate trial by the learned Session Judge, Jammu. He filed Crl. first Appeal Nos. 52/80 and 17/81. In the first appeal his sentence of 6 months RI was upheld but in the second it was reduced to 3 years. It was not, however, provided whether the sentences would run concurrently. He has now filed this petition under Section 397, Cr.P.C., and prays for the two sentences to be ordered to run concurrently and not consecutively.

2. It is the common ground that the petitioner had not asked for this either before the trial Court or the Appellate Court. Therefore, it remains to be seen whether he could do so now by approaching this court in an independent proceedings and purportedly under Section 397 Cr.P.C.

3. According to Mr. Gandhi he was disabled to do so for having failed to ask for it before the trial or the appellate Courts. The grounds taken by him also would not justify any grant of relief to him. The Court was also incompetent to come to his rescue having become functus officio after it disposed of his appeals.

4. Learned counsel for the petitioner, Mrs. S. Kour, however, urged that this Court could pass appropriate directions in exercise of its inherent jurisdiction under Section 561-A, Cr.P.C. She cited AIR 1988 SC 2143 : (1989 Cri LJ 283), 1983 Cri LJ 1262 (Kerala), 1982 Cri LJ 1844 (Andh Pra), AIR 1964 Andh Pra 449 : (1964 (2) Cri LJ 377) and 1975 Cri LJ 498 (Madh Pra), in support.

5. There is considerable divergence of opinion between various High Courts on the point. One view is that the High Court possess the inherent power under Section 561-A to order running of sentences concurrently and the other is that it has also the independent power under Section 397(1), Cr.P.C. The third extreme view is that it is powerless unless seized of an Appeal or Revision by the convict. The first view is contained in a Full Bench judgment of the Allahabad High Court reported in 1974 Cri LJ 1397 : (at p. 1400).

"It would be competent for the High Court in exercise of its inherent power to direct that the sentences under a subsequent conviction may run concurrently with the previous sentence even if the stage for exercise of discretion under Section 397 of the Code, is over in the circumstances, where it would serve in all the three purposes mentioned in the section i.e., to give effect to any order under the Code, or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice."

The Madhya Pradesh High Court supported the second view in 1975 Cri LJ 498 holding that "the High Court can exercise its direction under Section 397(1), Cr.P.C., and direct the sentence awarded in a subsequent trial to run concurrently with the sentence awarded in a previous trial, even after appeals or revisions preferred by the convict against his convictions in the said trials, have been dismissed." According to this view, sub-section (1) of Section 397 confers an independent power on the High Court to direct a subsequent sentence awarded in a case to run concurrently with the sentence awarded in an earlier case which can be exercised even after the disposal of the case on merits since its does not involve any review of the judgment on merits.

6. The third view is expressed by the Kerala High Court in Bhaskara v. State of Kerala (1978 Cri LJ 738) wherein Janki Amma, J. ruled as under (at p. 741 of Cri LJ) :

"A direction how the sentence in two cases should run issued subsequent to disposal of cases would amount to alteration of judgment which is barred under Section 362 (Central Code) (corresponding to Section 369, Cr.P.C.). If a direction under Section 31(1) (Central Code) cannot be issued after pronouncement of a judgment, on a motion made by the accused, I fail to see how the power under Section 427(1) (Central Code) (corresponding t

Click Here to Read the rest of this document