Crl.MC.812 of 2016 and Crl.MC.813 of 2016 (Karuppayyan vs State of Kerala; Vadivelu vs State of Kerala)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** # **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** ## **Crl.MC.No.812 of 2016** **AGAINST THE ORDER/JUDGMENT IN SC NO.194/2008 ON THE FILES OF THE ADDITIONAL DISTRICT COURT (ADHOC)-II, KOTTAYAM CRIME NO.28/2008 OF KANJIRAPPALLY POLICE STATION, KOTTAYAM** ## **PETITIONER:** **KARUPPAYYAN, AGED 40 YEARS, S/O. MARIYAPPAN, VELLIMALATHOPPU COLONY, NEAR PARAMASIVAN KOVIL, BOVY BODINAIKANOOR THALUK, THENI DISTRICT, TAMIL NADU STATE.** **BY ADV. SRI.LAVARAJ M.G.** ## **RESPONDENTS:** |**1**|**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,**| |---|---| ||**HIGH COURT OF KERALA.**| |**2**|**DIRECTOR GENERAL OF PRISONS CORRECTIONAL SERVICES,**| ||**PRISON HEADQUARTERS, POOJAPPURA,**| ||**THIRUVANANTHAPURAM 695 012.**| |**3**|**SUPERINTENDENT,**| ||**CENTRAL PRISON, VIYYUR, THRISSUR-680 010.**| ## **SRI. AJITH MURALI, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.07.2019, ALONG WITH Crl.MC.813/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.Cs.812 & 813 of 2016 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 03RD DAY OF JULY 2019 / 12TH ASHADHA, 1941** **Crl.MC.No.813 of 2016** **AGAINST THE ORDER/JUDGMENT IN SC NO.207/2008 OF THE ADDITIONAL DISTRICT COURT (ADHOC)-II, KOTTAYAM DATED 31-07-2009 CRIME NO.114/2008 OF CHANGANASSERY POLICE STATION, KOTTAYAM** ## **PETITIONER:** **VADIVELU, AGED 35 YEARS, S/O. SUBRAMANIAM, DOOR NO. 22, CHANDANAMARIAMMAN KOVIL, BODHI TOWN, BODHI TALUK, THENI DISTRICT THENI DISTRICT, TAMIL NADU STATE, C.NO.7700,CENTRAL PRISON, VIYYUR.** **BY ADV. SRI.LAVARAJ M.G.** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 DIRECTOR GENERAL OF PRISONS CORRECTIONAL SERVICES, PRISON HEADQUARTERS, POOJAPPURA, THIRUVANANTHAPRUAM-695 012.** - **3 SUPERINTENDENT, CENTRAL PRISON, VIYYUR, THRISSUR-680 010.** **BY SRI.C.K.SURESH, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.07.2019, ALONG WITH Crl.MC.812/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.Cs.812 & 813 of 2016 3 ## **O R D E R** These petitions are filed under Section 482 of the IPC. 2. The petitioners herein are undergoing their sentence in the Viyyur Central Jail. According to the petitioners, they have been convicted in as many as five separate cases and have been ordered to undergo various terms of imprisonments. They contend that they are reformed men and are entitled to an order that the sentence of imprisonment ordered shall run concurrently rather than consecutively. It is in the above backdrop, they have approached this Court with these petitions. 3. The prayers in Crl.M.C.No. 812/2016 read as follows: - “(i) Direct that the sentence imposed on the petitioner in CC 568/2008 on the file of the Judicial Magistrate of the First Class-I Kanjirappally, SC 5/2010 on the file of the Additional Sessions Judge (Fast Track)–I, Pathanamthitta, SC 194/2008 on the file of the Additional Sessions Judge (Ad hoc)–II, Kottayam and in SC 207/2010 on the file of the Additional Sessions Judge–II (Ad hoc), Kottayam shall run concurrently. - (ii) Direct that the fine imposed be reduced to a lesser amount.” 4. The prayers in Crl.MC.No.813/2016 are identical as above and they read as follows: Crl.M.Cs.812 & 813 of 2016 4 - “(i) Direct that the sentences imposed on the petitioner in CC 774 / 2008 on the file of the Judicial Magistrate of the 1[st] class I Changanassery, CC 347/2009 on the file of the Judicial Magistrate of the 1[st] class I Peerumedu, CC 568 /2010 on the file of the on the file of the Judicial Magistrate of the 1[st] Class-I, Kanjirappally, and SC 207/2008 on the file of the Additional Sessions Judge –II (Ad hoc), Kottayam shall run concurrently - (ii) Direct that the fine imposed be reduced to a lesser amount.” 5. Sri.Lavaraj, the learned counsel appearing for the petitioners, very fervently submitted that the petitioner in Crl.M.C. No.812/2016 has already undergone imprisonment of more than seven years and six months at the time of filing of the petition. If the sentences are not ordered to run concurrently, he would have to undergo a further period of imprisonment of upto 15 years, if fine is paid. In the case of the petitioner in Crl.M.C.No.813 of 2016, it is submitted that he has undergone imprisonment of more than seven years and six months at the time of filing of the petition and he will have to undergo a further imprisonment of 11 years, if fine is paid. The learned counsel would contend that the petitioners have been exhibiting exemplary good behaviour in the prison and they have transformed themselves and have become model citizens. 6. The learned counsel would rely on the judgment of Apex Crl.M.Cs.812 & 813 of 2016 5 Court in **State of Punjab v. Madan Lal** [2009 (5) SCC 238], as well as of this Court in **Ulahannan v. State of Kerala** [2002 (3) KLT 357] and **Benson v. State of Kerala and Another** [2014 KHC 596]. Referring to para 23 of the judgment in _**Benson**_ (supra), it is pointed out by the learned counsel that in appropriate cases, leniency can be shown taking into account the possibility of the accused reforming himself, if such benefit is given. It is further contended that normally reformative theory is the one to be taken by the courts while imposing the sentence for considering the question as to whether the sentence has to run concurrently or consecutively. 7. The submissions of the learned counsel is firmly refuted by Sri. Suresh, the learned Senior Public Prosecutor. The learned Senior Public Prosecutor has filed a statement charting the cases in which the petitioners are involved and the conviction entered into by the courts against them. 8. Insofar as the petitioner in Crl.M.C.No.812/2016 is concerned, it appears that he has been convicted by various courts in thirteen separate crimes registered in the states of Kerala and Tamil Nadu. Out of the above thirteen cases, he has been acquitted by the Appellate court in three cases. From the report, it appears that the Crl.M.Cs.812 & 813 of 2016 6 petitioner has already undergone sentence of seven years as on 24.05.2019 and after calculation of the total period of sentence, the date of release is to fall on 25.01.2029, which would include the default sentence for non-payment of fine. It is also borne out from the statement that the petitioner has been working in the general kitchen of prisoners and his character is good. 9. Insofar as the petitioner in Crl.MC.No.813/2016 is concerned, it is stated in the report that he was convicted and sentenced in 14 cases by various courts in Kerala. Out of the said 14 cases, he was acquitted of all charges by the Appellate Court in four cases. It is also stated that he is undergoing trial in one of the cases in which he is involved. From the statement, it appears that the date of release of the petitioner in this case will fall on 26/12/2025, including the default sentence for non-payment of fine. The said petitioner is also working in the general kitchen of prisoners and his character and conduct are said to be satisfactory. 10. The learned Senior Public Prosecutor would then refer to the decisions of the Apex Court in **M.R. Kudva v. State of Andhra Pradesh** [(2007) 2 SCC 772], **Sukumaran v. State of Kerala and Another** [2008 (1) KHC 722], and **V.K. Bansal v. State of Haryana** Crl.M.Cs.812 & 813 of 2016 7 **and Another** [(2013) 7 SCC 211] and it is contended that what is to be taken note of by this Court while considering the petition is the single transaction rule. He would refer to the cases in which the petitioners are involved and it is submitted that in all the cases, a separate and distinct offence was committed on different days against different individuals. It is contended that the fact that the transaction involved in all the cases being distinct and separate, the cases cannot be brought under the umbrella of single transaction rule and therefore, these petitions are liable to be dismissed. 11. I have considered the rival submissions and have gone through the precedents cited by the opposing counsel. 12. I have also gone to the judgments, which have been produced by the petitioners along with their petitions. In Crl.MC No. 812 of 2016, the petitioner has prayed for concurrence in 4 cases in which he has been convicted. Annexure-A1 is the judgment in Crl.A.No.428 of 2012 rendered by this Court on 8.7.2012, by which, the finding of guilt arrived at by the trial court against the petitioner under Sections 461, 457, 397, 324 r/w. Section 34 of the IPC was confirmed. The alleged incident had taken place on 12.04.2006 at midnight and the petitioner along with rest of the accused are alleged Crl.M.Cs.812 & 813 of 2016 8 to have committed lurking house trespass and after causing injuries to the victims, committed robbery. Annexure-A2 is the judgment rendered by this Court in Crl.A. No. 2124 of 2009, as per which, this Court had confirmed the sentence imposed by the trial court under Sections 397, 457, 461 of the IPC, but the sentence was modified. The alleged incident was on 25.10.2007 at midnight and the allegation is that the petitioner along with the rest of the accused trespassed into the house of the victim and committed robbery after causing grievous hurt. Annexure-A3 is the judgment passed by the learned Magistrate, as per which, the petitioner herein was found guilty for the offences under Sections 457, 380 and 414 of the I.P.C. The incident in the said case had allegedly taken place on 12.06.2007 at midnight. AnnexureA4 is the judgment of this Court, as per which, the petitioner herein was found guilty for the offences under Sections 457 and 395 of the I.P.C and he was ordered to undergo imprisonment for five years and seven years respectively. The alleged incident in the said case had taken place on 12.05.2008. Thus, it can be seen that the cases in which concurrence is sought for are distinct and separate transactions involving separate individuals. 13. Insofar as the petitioner in Crl.MC No.813 of 2016 is Crl.M.Cs.812 & 813 of 2016 9 concerned, he has produced copies of the judgment in five cases. Annexure-A1 is the judgment in CC No.774/2008 on the files of the Judicial Magistrate of the First Class-I, Changanassery. He was proceeded against for having committed offence punishable under Sections 457, 394 r/w section 34 of the I.P.C. It was in respect of an incident which took place on 28.05.2008. The allegation in AnnexureA2 judgment is that the petitioner along with rest of the accused trespassed into the house of CW1 on 25/4/08 at 2 a.m., and committed robbery. Annexure-A3 is the judgment in Crl.A.No.184/2010, wherein the allegation is that the petitioner herein along with rest of the accused trespassed into the house of the victim on 16.05.2008 and committed robbery. Annexures-A4 is the judgment passed by this Court, as per which, the petitioner herein was found guilty for the offence under Sections 457 and 395 of the I.P.C and he was ordered to undergo imprisonment for five years and seven years respectively. Annexure-A4 is in respect of an incident which took place on 12.06.2007 and it also relates to commission of robbery. 14. In the above backdrop, it would be apposite to refer to Section 427 of the Cr.P.C. which reads as follows: "Section 427. Sentence on offender already sentenced for another offence. Crl.M.Cs.812 & 813 of 2016 10 (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 S.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." 15. While sub-section (2) of Section 427 of the Cr.P.C. provides that when a person who is already undergoing imprisonment for life, is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently Crl.M.Cs.812 & 813 of 2016 11 with such previous sentence. Sub- section (1) of Section 427, however, provides that the subsequent sentence of a person undergoing a sentence of imprisonment, unless of course the previous sentence of imprisonment is not imprisonment for life, shall run consecutively, i.e. the subsequent sentence shall commence at the expiration of the imprisonment to which such person has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Hence, if a person is already undergoing a sentence of imprisonment for life, his subsequent conviction to imprisonment, which may be for any term or for imprisonment for life, shall have to run concurrently with the previous sentence for which the Court's order is not necessary. On the reverse situation i.e. if a person is undergoing a sentence of imprisonment, but not the imprisonment for life, and he has been subsequently convicted to imprisonment for any term or imprisonment for life, there must be an order of the Court for the subsequent sentence to run concurrently with the previous sentence. 16. The Apex Court in **Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedbad and Another** [AIR 1988 SC 2143] has clearly laid down Crl.M.Cs.812 & 813 of 2016 12 that since Section 427 of the Cr.P.C. relates to administration of criminal justice and provides procedure for sentencing, the sentencing Court is required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run i.e. whether it should be concurrent or consecutive. It has also been laid down that the basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences and if a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences and in that case, it is proper and legitimate to have concurrent sentences. The Apex Court, however, has observed that the single transaction rule will have no application if the transaction relating to the offences is not the same or the facts constituting the two offences are quite different. 17. In **M.R. Kudva v. State of A.P.** [(2007) 2 SCC 772], the Apex Court had occasion to consider the same question and in paragraph 12, it was held as follows: "12. However, in this case the provision of S. 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 Crl.M.Cs.812 & 813 of 2016 13 have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal. S. 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 S.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." 18. The same view was taken by the Apex Court in _**V.K. Bansal**_ (supra), in which case, the Apex Court, after referring to _**Mohd. Akhtar Hussain**_ (supra), has observed that the basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. It was held that this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. ## 19. In **Shyam Pal v. Dayawati Besoya and Ors.** [AIR 2016 ## SC 5021], it was held as follows: “Though this provision has fallen for scrutiny of this Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal v. State of Haryana and Anr. [(2013) 7 SCC 211] where it was held that though it is manifest from Section 427(1), that the Court Crl.M.Cs.812 & 813 of 2016 14 has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the same.” 20. The imperative essentiality of a single transaction as the decisive factor to enable the Court to direct the subsequent sentence to run concurrently with the previous one was thus underscored. It was expounded that the direction for concurrent running of sentence would be limited to the substantive sentence alone. 21. In the case on hand, transaction relating to offences is not the same and the facts constituting the various offences are distinct Crl.M.Cs.812 & 813 of 2016 15 and separate. Furthermore, the trial court or the Appellate court had not passed any order directing that the sentences be ordered to run concurrently. In that view of the matter, this Court in exercise of powers under Section 482 of the Cr.P.C will not be justified in granting a relief, which is barred under the Code. In view of the above, the petitioners are not entitled to the relief sought for. These petitions are dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** PS Crl.M.Cs.812 & 813 of 2016 16 ## **APPENDIX OF Crl.MC 812/2016** **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 ANNEXURE A1 TRUE COPY OF THE JUDGMENT IN CRA 428/2012 ANNEXURE P2 ANNEXURE A2 TRUE COPY OF THE JUDGMENT IN CRA 2124/2009 ANNEXURE P3 ANNEXURE A3 TRUE COPY OF THE JUDGMENT IN CC 568/2008 ANNEXURE P4 ANNEXURE A4 TRUE COPY OF THE JUDGMENT INC RA 1005/2013** ## **APPENDIX OF Crl.MC 813/2016** **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 ANNEXURE A1 TRUE COPY OF THE JUDGMENT IN CC 778/2008 ANNEXURE P2 ANNEXURE A2 TRUE COPY OF THE JUDGMENT IN CC 347/2009 ANNEXURE P3 ANNEXURE A3 TRUE COPY OF THE JUDGMENT IN CRL.A 184/2010 ANNEXURE P4 ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN CC 568/2008 ANNEXURE P5 ANNEXURE A5 TRUE COPY OF THE JUDGMENT IN CRL.A 1005/2013**