( 1. ) THE following question has been referred by Bhave. J. far decision: Whether this Court can exercise discretion under Section 397 of the Code of Criminal Procedure and direct the sentence awarded in subsequent trials to run concurrently with the sentence awarded in previous trial even after the appeals or revisions preferred by the convict have been dismissed?

( 2. ) FOR a proper consideration of this question, it is necessary to refer to Section 397 of the old Code of Criminal Procedure (hereinafter referred to as the Code) which corresponds to Section 427 of the new Code of Criminal Procedure. The said section is reproduced below for facility of reference: 397. (1) When a person alreadv 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 123 in default of furnishing a 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 subsequent conviction to imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

( 3. ) THE general Title is that- a sentence commences from the time it is passed. This section creates an exception in the case of persons already undergoing a sentence of imprisonment. It provides that a sentence, which is first passed and which the accused is undergoing, must be given effect to first and the sentence subsequently passed shall follow after the expiration of the first sentence. Subsection (1) of the section, however, confers a discretion on the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. The main point for consideration in this case is whether this discretion can be exercised after an appeal or revision relating to the subsequent conviction and sentence has been disposed of by the High Court. ( 4. ) THERE has been some divergence of opinion on this question and it would be pertinent here to refer to the decisions bearing on it. In Baijnath v. State it was held that where the High Court has summarily dismissed the appeal against the second conviction, it has no power thereafter under Section 397 (1) of the Code to pass an order making the subsequent sentence to run concurrently with the previous sentence, as the stage for passing an order under Section 397 had passed. It was, however, held that such a power could be exercised by the High Court in exercise of its inherent jurisdiction under Section 561a of the Code to secure the ends of justice and that Section 369 of the Code was no bar to the exercise of this power. In Maha-bir Beldar v. The State a Single Judge of that Court, however, took a different view and held that the power to direct the sentences to run concurrently could not be exercised even under its inherent powers after the disposal of the appeal, relying on a earlier Division Bench decision of that Court in Ekram Sheikh v. The State, Cri A. Nos. 574 of 1960 and and46 of 1961, D/- 21-11-1962 (Pat ). ( 5. ) IN Manju alies Bhavan v. The State of Madhya Pradesh, M. Cri. C. No. 225 of 1968, D/- 4-7-1969 (Madh Pra) Bhave, J. , relying on the decision of the Madras High Court in In re Nachimuthu AIR 1958 Mad 452 : (1958 Cri LJ 1197), held that the power under Section 561a of the Code could not be exercised for giving the relief under Section 397 of the Code after the appeal or revision was disposed of. A similar view was taken by Sharma, J. in Jagannath v. State, 1967 Jablj (Note) 21 Si