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ALLAHABAD HIGH COURT
K. B. ASTHANA, J.
Ulfat - Appellant
v.
State - Respondent.
Criminal Misc. Nos. 1127, 1128 and 3614 of 1967
Decided on : 6 -10 -1967.
CRIMINAL PROCEDURE CODE - SECTION 397 - SECTION 561-A - POWER OF COURT TO MAKE SUBSEQUENT SENTENCE CONCURRENT WITH EARLIER SENTENCE - JURISDICTION OF HIGH COURT - SCOPE OF SECTION 561-A - INTERPRETATION OF SECTION 397 - DUTY OF COURT TO CONSIDER MAKING SUBSEQUENT SENTENCE CONCURRENT - DUTY OF PROSECUTOR TO BRING FACTS OF PREVIOUS CONVICTION TO COURT'S NOTICE - DUTY OF SUPERINTENDENT OF JAIL TO EXAMINE WARRANT AND RETURN IT IF DEFECTIVE - ENDS OF JUSTICE REQUIRE COURT TO CONSIDER MAKING SUBSEQUENT SENTENCE CONCURRENT.
Fact of the Case:
Three prisoners, Ulfat, Sampu, and Shyam Lal, were convicted and sentenced to imprisonment for offenses under Section 395 of the Indian Penal Code in separate trials. The prisoners had not informed the courts of their previous convictions, and the courts did not consider making the subsequent sentences concurrent with the earlier sentences under Section 397 of the Criminal Procedure Code. The prisoners filed applications in the High Court seeking to have their subsequent sentences made concurrent with their previous sentences.
Finding of the Court:
The High Court held that it had jurisdiction to consider the prisoners' applications under Section 561-A of the Criminal Procedure Code, which allows the court to alter or review its own orders in certain circumstances. The court found that the prisoners had not been given an opportunity to bring their previous convictions to the attention of the courts in the subsequent trials, and that the courts had failed to consider making the subsequent sentences concurrent as required by Section 397. The court also found that the prisoners' subsequent sentences were for serious offenses, but that they had not been accused of any rapacity or undue violence. The court concluded that the ends of justice would be met by making the prisoners' subsequent sentences concurrent with their previous sentences.
Issues: 1. Whether the High Court had jurisdiction to consider the prisoners' applications under Section 561-A of the Criminal Procedure Code. 2. Whether the prisoners had been given an opportunity to bring their previous convictions to the attention of the courts in the subsequent trials. 3. Whether the courts had failed to consider making the subsequent sentences concurrent as required by Section 397 of the Criminal Procedure Code. 4. Whether the prisoners' subsequent sentences should be made concurrent with their previous sentences.
Ratio Decidendi: 1. The High Court has jurisdiction to consider the prisoners' applications under Section 561-A of the Criminal Procedure Code, which allows the court to alter or review its own orders in certain circumstances. 2. The prisoners had not been given an opportunity to bring their previous convictions to the attention of the courts in the subsequent trials. 3. The courts had failed to consider making the subsequent sentences concurrent as required by Section 397 of the Criminal Procedure Code. 4. The prisoners' subsequent sentences should be made concurrent with their previous sentences because the prisoners had not been given an opportunity to bring their previous convictions to the attention of the courts in the subsequent trials, the courts had failed to consider making the subsequent sentences concurrent as required by Section 397, and the prisoners' subsequent sentences were for serious offenses but they had not been accused of any rapacity or undue violence.
Final Decision: The High Court allowed the prisoners' applications and ordered that their subsequent sentences be made concurrent with their previous sentences.
The prisoner Ulfat was convicted for an offence under Section 395, I.P. Code by the Sessions Court at Aligarh on 11-5-1962 and was sentenced to undergo rigorous imprisonment for a term of ten years. He filed an appeal from jail which was put up before me in Chambers and was dismissed by me on 31-10-1962. However, in the mean-time Ulfat had been convicted by the Sessions Judge of Mathura for an offence under Section 395, I.P.C. and sentenced to six years' R.I. on 29-9-1962. His appeal from jail against the latter conviction was also dismissed by me in Chambers on 11-12-1962. It appears that when the Sessions Judge of Mathura recorded the conviction of Ulfat and sentenced him to six years' R.I. it was not brought to his notice that Ulfat was already undergoing a term of imprisonment under a previous conviction. No orders under S.397, Criminal Procedure Code were passed. When I dismissed the appeal of Ulfat against his subsequent conviction and maintained the sentence there was no information laid before me that the appellant was already undergoing imprisonment under a previous conviction. The prisoner Ulfat then submitted this application from jail praying that his sentence for the subsequent conviction be made concurrent with the sentence awarded to him in the previous conviction. The papers were laid before me in Chambers on 28-9-1966 and I directed that a query be made from the Government Advocate in the matter. By my order dated 4-10-1966. I further asked the Government Advocate whether this Court had jurisdiction and competency to make the sentence concurrent at this stage. The learned Assistant Government Advocate submitted a note to the effect that no application under Section 561-A of the Criminal Procedure Code would lie after this Court had dismissed the appeal and this Court had no power or jurisdiction in the matter. Since I had some doubts I made an order on 6-6-1967, that the matter be heard in Court and notice be issued to the prisoner fixing a date and asking him to arrange for his representation. I further ordered that if the prisoner was not in a position to engage a counsel, the Court will appoint an amicus curiae.
2. Meanwhile, the office of the High Court put before me cases of two other prisoners, Sampu and Shyam Lal, in which similar question arose. The opinion of the learned Government Advocate was sought in these cases also and the submission was made that this Court had no jurisdiction left in the matter. I directed these cases also to be listed along with the matter of Ulfat.
3. On 19-5-1967 when I found that the prisoners had not been able to arrange for their representation through a counsel, I appointed Sri S.K. Sahai, Advocate, to appear as amicus curiae and to assist the Court. All the three cases have been put up before me today for orders.
4. I have heard Sri S.K. Sahai for the prisoners and Sri P.C. Srivastava, learned Assistant Government Advocate for the State. The Court is grateful to Sri S.K. Sahai for having prepared the cases on behalf of the prisoners and for having ably placed the law and the rules on the material questions which arose thus assisting the Court on behalf of the prisoners. The Court also appreciates the fair manner in which Sri P.C. Srivastava, learned Assistant Government Advocate, put the case on behalf of the State.
5. As observed above, I am proceeding to pass orders in the 3 cases on the basis that the attention of the learned Sessions Judges who convicted the three prisoners in the subsequent trials was not drawn to the fact that the accused were already undergoing imprisonment under a previous conviction. It is clear, therefore, that no occasion arose before the learned Sessions Judges for exercise of their jurisdiction under the provisions of Section 397 of the Criminal Procedure Code. The appeals from jail of the prisoners both against the first and second conviction having been dismissed by the Judge in Chambers in the High Court, their convictions and sentence
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