The main legal point established in the judgment is that an application filed under Section 482 of the Cr.P.C. for passing an order which was not raised earlier is not maintainable and the remedy lies elsewhere.

Rakesh Kumar Jain, J.

1. This is an application filed under Section 482 read with Section 31 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.) in a decided Criminal Revision with a prayer that the sentence awarded by the Judicial Magistrate, 1st Class, Fatehabad (hereinafter referred to as the Magistrate) vide her order dated 05.04.2005 in the same trial for different offences, which has been upheld upto the High Court, may be ordered to run concurrently as the total sentence awarded would be more than 14 years which would be contrary to Section 31(2)(b) of the Cr.P.C.

2. In order to unfold the controversy, a few skeletal facts are required to be noticed. The applicant was tried for the offences committed under Sections 409/420/467/468/471 of the Indian Penal Code (for short the Code) in a case registered vide FIR No.292 dated 30.07.1996 at Police Station Ratia, District Fatehabad. The Magistrate vide her order dated 05.04.2005 held the applicant guilty for committing offences punishable under Sections 409/420/467/468/471 of the Code and by her separate order of the even date, the applicant was sentenced as under:-

i) Under Section 409 IPC For 3 years with fine of Rs.2,000/- In default of payment of fine further R.1 of 6 months

ii) Under Section 420 IPC For 3 years with fine of Rs.2,000/- In default of payment of fine further R.1. of 6 months

iii) Under Section 467 IPC For 3 years with fine of Rs.2,000/- In default of payment of fine further R.1. of 6 months

iv) Under Section 468 IPC For 3 years with fine of Rs.2,000/- In default of payment of fine further R.1. of 6 months

v) Under Section 471 IPC For 3 years with fine of Rs.2,000/- In default of payment of fine further R.1. of 6 months

3. Admittedly, the Magistrate ordered the period already spent by the applicant in custody to set off against the sentence awarded but it was not ordered that the aforesaid sentence shall run concurrently which otherwise would mean that the sentence would run consecutively. The applicant challenged the order of the Magistrate dated 05.04.2005 by way of Criminal Appeal No.10 but admittedly, he did not make a prayer for making the sentence, awarded by the Magistrate under the various provisions of the Code to run concurrently nor it was argued before the Appellate Court. Consequently, no order was passed in this regard when the appeal was dismissed.

4. Still aggrieved, the applicant filed Criminal Revision No.1157 of 2008 before this Court against the order of the Courts below and interestingly in the grounds of revision, the prayer for ordering the sentence to run concurrently was conspicuous by its absence nor any prayer in this regard was made even at the time of arguments. The said revision petition was dismissed by this Court in limine vide its order dated 10.07.2008, which has not been further challenged by the applicant and thus, had attained finality. On 12.7.2010, the present application has been filed in which, for the first time, prayer is made to order the sentence awarded by the Magistrate on 05.04.2005, which has been confirmed upto the High Court, to run concurrently.

5. Notice in the application was issued to the State of Haryana and after their appearance both the learned counsel for the parties have been heard.

6. Learned counsel for the applicant has very fairly conceded that upto the conclusion of the proceedings in Criminal Revision before this Court, no prayer was made by the applicant for ordering the sentence awarded by the Magistrate under various provisions of the Code, in the same trial, to run concurrently. However, it is argued that the applicant has been sentenced to undergo R.I. for 3 years each under five provisions of the Code which comes to 15 years. But the sentence, as per Section 31(2)(a) of the Cr.P.C. cannot be more than 14 years and according to Section 31(2)(b) of the Cr.P.C. the aggregate punishment could not exceed twice the amount of punishment which the Court is co