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CASE NO.: Appeal (crl.)  1330 of 2006

PETITIONER: M.R. Kudva                       \005Appellant

RESPONDENT: State of Andhra Pradesh  \005Respondent

DATE OF JUDGMENT: 15/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out S.L.P. (Criminal) No.1405 of 2006]

S.B. SINHA, J :

       Leave granted.

       Application of the provision of Section 427 of the Code of Criminal  Procedure, 1973 (for short, ’the Code’)  falls for consideration in this appeal  which arises out of a judgment and order dated 17.10.2005 passed by a  learned Single Judge of the High Court of Andhra Pradesh in Criminal  Petition No. 3917 of 2005.

       Appellant was a bank employee.  He worked as a Manager in  Syndicate Bank at its Branch at Abid Road, Hyderabad.  His job was to  advance loans.   Allegedly, in one case he sanctioned a loan to a customer  for Black & White Television, while the scheme was for something else.  In   another case he sanctioned a loan for obtaining plots from the Housing  Society.  The Central Bureau of Investigation (CBI) had also filed  chargesheets against the appellant in both the cases.  Two cases were, thus,  came to be registered against him; one being Criminal Case No. 9 of 1992  and another being Criminal Case No. 5 of 1993.  The judgment in the first  case was pronounced by the Special Judge, C.B.I. Court on 04.07.1997  whereby and whereunder he was convicted for commission of  offences  punishable under Sections 120B/420, 468, 471 of the Indian Penal Code  (IPC)  read with Section 5(1) of the Prevention of Corruption Act, 1947.  He  was sentenced to undergo 18 months’ rigorous imprisonment.  Different  amounts of  fines for offences punishable under Sections 120B/420, 468,  471 IPC and Section 5(1) of the Prevention of Corruption Act, 1947 were  also imposed.  By a judgment of conviction and sentence dated 06.08.1997,  the Special Judge, CBI, found him guilty for commission of  offences  punishable under Sections 120B/420, 468, 471 read with Section 5(1) of the  Prevention of Corruption Act, 1947 in Criminal Case No. 5 of 1993 and  sentenced him to undergo rigorous imprisonment for two years.  Different  amounts of fines for offences punishable under the said sections were also  imposed against him.

       Appeals preferred thereagainst before the High Court of Andhra  Pradesh  were registered as Criminal Appeal No. 792 of 1997 and  Criminal  Appeal No. 894 of 1997 respectively.  The appeals were dismissed by a  judgments and orders dated 30.12.2004 and 20.01.2005 respectively.   Special Leave Petitions filed thereagaisnt have also been dismissed by this  Court by an order dated 11.05.2005.  Appellant thereafter filed an  application before the High Court purported to be under Sections 482/427 of  the Code of Criminal Procedure, praying, inter alia, therein that the  sentences imposed upon him in both the cases be directed to run

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concurrently.  The said application has been rejected by the High Court by  reason of the impugned judgment.

       Mr. V.B. Joshi, the learned counsel appearing on behalf of the  appellant, would, inter alia, submit that having regard to the facts and  circumstances of this case and particularly in view of the fact that the nature  of offence in  both the cases being the same, the High Court should have  directed that sentences imposed upon the appellant to run concurrently and  not consecutively.   

       Section 427 of the Code of Criminal Procedure reads as under :

"427.  Sentence on offender already sentenced for  another offence.-(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.

       (2)     When a person already undergoing a  sentence of imprisonment for life is sentenced on a  subsequent conviction to imprisonment for a term or  imprisonment for life, the subsequent sentence shall run  concurrently with such previous sentence."

       The learned Sessions Judge while passing the judgment and  conviction in Criminal Case No. 5 of 1993 took note of the fact that the  appellant had been convicted in Criminal Case No. 9 of 1992 also.  He,  however, categorically opined that the accused did not deserve any  sympathy.  The appellant was  convicted under all the charges levelled  against him and sentenced him to undergo rigorous imprisonment for  different periods.  For commission of the offences punishable under Section  420 IPC, he was sentenced to undergo rigorous imprisonment for two years.   The sentences of imprisonment imposed upon him, however, were directed  to run concurrently.

       Although according to the appellant, the High Court heard both the  matters almost at the same time, no such prayer appears to have been made,  nor the same fell for consideration by the High Court. The Special Leave  Petitions filed by the appellant, as noticed hereinbefore, have also been  dismissed.

       Strong reliance has been placed by Mr. Joshi on a decision of this  Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant  Collector of Customs (Prevention), Ahmedabad and  Another [(1988) 4 SCC  183].  Therein the court upheld a contention that if a given transaction  constitutes two offences under the enactments, generally it would be wrong  to impose consecutive sentences.  It was, however, opined that it would be  proper and legitimate to have concurrent sentences; but at the same time, it  was held that the said rule would have no application if  the facts  constituting the same offences are quite different.  The said decision,  therefore, in view of the fact that the appellant has been convicted in two  distinct and different offences, runs counter to the submission of Mr. Joshi.  

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       Reliance has also been placed by Mr. Joshi in Ammavassi and  Another v.  Inspector of Police, Valliyanur and Others [AIR 2000 SC 3544].   Therein, the appellants were convicted in four-five different cases, during a  period of three to four months.  The appellants therein claimed benefit under  Section 427 of the Code in order to avoid undergoing imprisonment of a  total period of 28 or 35 years in jail. This Court opined that 14 years  rigorous imprisonment would meet the ends of justice.  It is, therefore, clear  that even in that case whereas Section 427 of the Code was applied in three  cases, but in two cases, the sentences were directed to run consecutively.   

       The said decisions, therefore, are not the authorities for the  proposition that it is incumbent upon the court to direct in a case of this  nature that both the sentences shall run concurrently and not consecutively.

       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 neither 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.