M.R.KUDVAversusSTATE OF ANDHRA PRADESH

A                                  M.R.KUDVA
                                        v.
                           STA TE OF ANDHRA PRADESH

                                 DECEMBER 15, 2006

B                   [S.B. SINHA AND MARKANDEY KA TJU, JJ.]


           Code of Criminal Procedure, 1973:

           s.487 rlw s.482-Sentence in two different criminal cases-Prayed in
C separate and independent proceeding to run concurrently-Held, s.487 having
     not been invoked in original cases nor in appeals, separate application
     before High Court after dismissal of Special leave· Petition by Supreme
     Court, was not maintuinable-s.482 not an appropriate remedy in the case-
     Sentencing-Penal Code, /860~ss. 120-B, 420, 468, 471-Prevention of
D    Corruption Act, 1947-s.5(1).

            Appellant, a Bank Manager, was convicted in two criminal cases u/ss.
     120B/420/467/471 IPC read with s.S (1) of the Prevention of Corruption Act,
     1947. He was awarded rigorous imprisonment for 18 months in the first case
     a.nd 2 years in the second case. His appeals in both the cases were dismissed
E    by the High Court, so also. the Special Leave Petitions by the Supreme Court.
     Thereafter he filed a petition purported to be under sections 482/487 of the
     Code of Criminal Procedure, 1973 before the High Court praying that the
     sentences imposed upon him in both the cases be directed to run concurrently.
     On dismissal of the said application, the accused filed the present appeal.

F          Dismissing the appeal, the Court

           HELD: 1.1. In the instant case, the provision of s.427 of the Code of
     Criminal Procedure, 1973 was neither invoked in the original cases nor in
     the appeals. A separate application was filed before the High Court after the
G    special leave petitions were dismissed. Such an application 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
II                                        1142
               M.R. KUDVA v. STATE OF ANDHRA PRADESH [S.B. SINHA, J.]         l 143

     sentence indicated that the sentences passed against the appellant in both the   A
     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. [1146-D-F)

           Mohd Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector
     of Customs (Prevention), Ahmedabad and Anr., [1988] 4 sec 183, referred          B
     to.

          Ammavassi and Anr. v. Inspector of Police, Val/iyanpur and Ors., AIR
     (2000) SC 3544, distinguished.

          t.2. The Sessions Judge while passing the judgment and conviction in        C
     Criminal Case No. 5of1993 took note of the fact that the appellant had been
'·   convicted in Criminal Case No. 9of1992 also. He, however, categorically
     opined that the accused did not deserve any sympathy. [1145-D)

             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1330 of
     2006.                                                                            D
           From the final Judgment and Order dated 17.10.2005 of the High Court
     of Judicature, Andhra Pradesh at Hyderabad in Criminal Petition No. 3917/
     2005.

             V.B. Joshi for the Appellant.                                            E
           A. Sharan, A.S.G., Amit Pawan, P. Parmeshwaran and D. Bharathi Reddy
     for the Respondent.

             The Judgment of the Court was delivered by

             S.B. SINHA, J. Leave granted.
                                                                                      F

           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    G
     No. 3917 of2005.

          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          H
    1144                      SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A 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. 9of1992 and another being Criminal Case No.
    5 of 1993. The judgment in the first case was pronounced by the Special
    Judge, C.B.L Court on 04.07 .1997 whereby and whereunder he was convicted
B   for commission of offences punishable under Sections 1208/420, 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
C   Corruption Act, 194 7 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
D   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
E orders dated 30.12.2004 and 20.01.2005 respectively. Special Leave Petitions
     filed thereagainst have also been dismissed by this Court by an order dated
     l l .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 concurrently. The said application has been rejected
F 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
G   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
H           is sentenced on a subsequent conviction to imprisonment or
        M.R. KUDVA v. STATE OF ANDllRA PRADESH [S.B. SINHA, J.]         1145

        imprisonment for life, such imprisonment or imprisonment for life shall A
        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    B
        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   C
        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 D
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 undergc
rigorous imprisonment for two years. The sentences of imprisonment imposed E
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      F
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 Anr., [1988] 4 SCC 183. Therein
the court upheld a contention that if a given transaction constitutes two G
offences under the enactments, generally it would be wrong to impose
consecutive sentences. It was, however, opined that it would be proper and
legitimate ~o 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 H
    I 146                   SUPREME COURT REPORTS (2006) SUPP. 10 S.C.R.

A that the appellant has been convicted in two distinct and different offences,
    runs counter to the submission of Mr. Joshi.

          Reliance has also been placed by Mr. Joshi in Ammavassi and Anr. v.
    Inspector of Police, Val!iyanur and Ors., AIR (2000) SC 3544. Therein, the
    appellants were convicted in four-five different cases, during a period of three
B   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,
C   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.

D         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.
E   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
F   applied in a separate and independent proceeding by the High Court. The
    appeal being devoid of any merit is dismissed.

    RP.                                                         Appeal dismissed.