Jomon George v. State of Kerala

## `THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MRS. JUSTICE MARY JOSEPH` ``` MONDAY, THE 7[TH] DAY OF MARCH 2022 / 16TH PHALGUNA, 1943 ``` ## `CRL.MC NO. 1483 OF 2022` ``` CRL.A.NO.1914/2010 AND CRL.A.NO.1858/2010 ``` ``` SC 357/2009 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD ``` ## `PETITIONER/ACCUSED:` ``` JOMON GEORGE, AGED 41, S/O. GEORGE, KARIKUT KALATHIL HOUSE, ULLANAD P.O., PALA POLICE STATION, KOTTAYAM DISTRICT - 686 651. ``` ``` BY ADV SRI. K.R.ARUN KRISHNAN ``` ## `RESPONDENTS/STATE:` ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682 031 2SUPERINTENDENT, CENTRAL PRISON & CORRECTIONAL HOME, PALLIKKUNNU, KANNUR - 670 004. ``` ``` BY PUBLIC PROSECUTOR SMT.SEENA C ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.03.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C. No. 1483 of 2022 ## -:2:- “CR” ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 1483 of 2022 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of March, 2022 ## O R D E R This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking for an order that the sentence imposed on the petitioner shall run concurrently and for a direction to release him on completion of the period of imprisonment, to secure the ends of justice. 2. The petitioner is now undergoing imprisonment at Central Prison and Correctional Home, Kannur after being convicted for an offence punishable under Section 55(a) of the Kerala Abkari Act, 1077 in S.C. No. 357/2009 pending on the files of Additional District and Sessions (Fast Track) Court-II, Palakkad. The petitioner was sentenced to undergo rigorous imprisonment for 4 years and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for one year. In S.C. No.221/2009 the petitioner was sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs.1,00,000/- and in Crl.M.C. No. 1483 of 2022 -:3:- default to undergo rigorous imprisonment for one year. The above judgments were assailed by the petitioner before this Court respectively in Crl.Appeal Nos.1914/10 and 1858/10. 3. Crl.Appeal No.1914/10 was allowed by this Court in part and the sentence was reduced to rigorous imprisonment for one year. The fine imposed was maintained, but, the default sentence was reduced to rigorous imprisonment for 3 months. Crl.Appeal No.1858/10 was dismissed by this Court and thereby the judgment of the trial court in S.C. No.221/09 was confirmed. Copies of the judgments of this Court in respective cases are produced alongwith as Annexures I and II. 4. Against the judgment passed in SC No. 221/2009 by Additional Court of Sessions (Adhoc-I), Palakkad, accused Nos.1 and 2 respectively filed Crl.Appeal Nos.1837/2010 and 1858/2010. Crl.Appeal No.1858/2010 was dismissed maintaining the sentence imposed on the 1[st] accused. Crl.Appeal No.1837/10 was allowed in part by maintaining the conviction and modifying the sentence imposed on 2[nd] accused. The sentence imposed on the 2[nd] accused is modified as a sentence of rigorous imprisonment for 3 years and fine of Rs.1,00,000/- and rigorous Crl.M.C. No. 1483 of 2022 -:4:- imprisonment for one year in case of default. The grievance of the petitioner in the present petition was that while imposing sentence in Crl.Appeal No.1914/10, this Court did not specify whether the sentence will run concurrently or not. Therefore, the petitioner was constrained to undergo sentences of imprisonment imposed on him consecutively. The judgment of this Court in Crl.Appeal No.1858/2010 was challenged by filing Crl.Appeal No.695/21 before the Apex Court and by judgment dated 27.07.21, the sentence of imprisonment imposed on him was modified and reduced to 2 years. The fine amount was enhanced to Rs.2,00,000/-. Set-off was also allowed for the period of detention during remand. It is contended that the petitioner has a family for which, he is the sole bread winner and if he is detained inextensively, they would be put to difficulties. As on 26.01.22 he has undergone imprisonment for one year, 5 months and 5 days. Since there was no direction in the judgments that the sentence shall run concurrently, the petitioner has no other way than to undergo detention in prison for a total period of 5 years. The mother of the petitioner is ill and incapable to do things on her own. He being a convict, his Crl.M.C. No. 1483 of 2022 -:5:- relatives are not prepared to look after his mother. He also does not have the financial stability to prefer an appeal. According to him, in the judgment passed in Crl.Appeal No.1457/21, copy of which is produced alongwith as Annexure III, the Apex Court has reminded that the courts are empowered to invoke the discretion under Section 427 Cr.P.C. 5. This is a case wherein the petitioner stands convicted and sentenced to undergo imprisonment by judgments passed by two trial courts. In the appeal preferred separately also two Benches of this Court has passed separate judgments. The prosecution cases were originated from two independent transactions. Section 427 Cr.P.C is the provision relevant in the context, which reads as follows : “ 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 Crl.M.C. No. 1483 of 2022 ## -:6:- 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.” 6. It says that when a person already undergoing a sentence of imprisonment is again sentenced on a subsequent conviction for imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the term of imprisonment, which he was originally sentenced, and is serving, unless the court directs that the subsequent sentence and the sentence previously imposed shall run concurrently. Therefore, when a judgment convicting and sentencing him with reference to a different transaction later in point of time and by that time the convict was serving the sentence imposed in another case, it is for the latter court imposing sentence to mention in the judgment that the sentence shall run concurrently with such previous sentence. Therefore, the sentences imposed against a person to run concurrently, a specific direction of the Crl.M.C. No. 1483 of 2022 -:7:- court must be incorporated in the judgment that was passed later in point of time. 7. Therefore, the general rule is that sentence imposed in two different cases involving separate transactions forming offences, must run consecutively unless the court issues a specific direction in it’s judgment that two sentences imposed shall run concurrently. In the judgment of Crl.Appeal No.1457/21 relied on by the learned counsel, the Apex Court has held in paragraph 9, the principles of law that emerged on the basis of Section 427 Cr.P.C as follows : “9. Thus from the aforesaid decisions of this Court, the principles of law that emerge are as under :- (i) If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced; (ii) Ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence; (iii) the general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 of Cr.P.C. Crl.M.C. No. 1483 of 2022 -:8:- (iv) under Section 427(1) of Cr.P.C the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judiciously depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.” 8. It is apposite to have an idea about the facts of the case dealt with by the Apex Court wherein the above principles have been laid down. The accused in the case had approached the Apex Court contending that he had already undergone sentence for 12 years in a case originated from a crime and therefore, he cannot be punished in a case originated from another crime wherein he had already undergone imprisonment for 6 years and two months. According to him, he thus stands punished for imprisonment twice and that is improper. Accordingly he seeks for a lenient view, by directing that the sentences imposed and he is serving at the relevant time, shall run concurrently. The claim was raised before the High Court but it was declined to pass an order in his favour and accordingly appeals preferred were dismissed. Thereupon the accused preferred appeal before Crl.M.C. No. 1483 of 2022 ## -:9:- the Apex Court. It was submitted by the learned counsel for the appellant that he was aged only 30 years when he was convicted and at present he is 52 years old. It was further contended that his conduct in jail was good and adverse remarks are not made against him by the Superintendent of Jail. Accordingly it was urged to invoke the jurisdiction under Section 427 Cr.P.C and to issue an order to the effect that the sentences shall run concurrently. ## 9. The Apex Court relying on Neera Yadav v. Central Bureau of Investigation [(2017) 8 SCC 757] wherein while interpreting/considering Section 427 Cr.P.C, another bench of it has observed and held that Section 427 Cr.P.C deals with sentence imposed on an offender who stands sentenced for another offence and the exercise of the power under Section 427 Cr.P.C is purely discretionary. It was observed that policy of the Legislature is that normally sentences in different crimes shall run consecutively. It is further observed that only in appropriate cases, considering the facts of the case, the Court can issue a direction that sentences shall run concurrently. It is further observed that the discretion exercised by the sentencing court to Crl.M.C. No. 1483 of 2022 -:10:- direct service of sentences posed by it concurrently will have to be exercised on sound principles and not on whims and fancies. Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed. It was also observed that where there are different transactions, different crime numbers and disposal of those by judgments of different courts, direction to serve the sentences imposed concurrently cannot be issued under Section 427 Cr.P.C. However, it was concluded stating that the general rule can be relaxed by an order passed by the court. 10. In the case on hand as disclosed by the pleadings of the petitioner in the petition on hand, the lastly decided case is Crl.Appeal No.692/21 and judgment was pronounced in it by the Apex Court, whereby the sentence imposed on the petitioner was reduced and modified to imprisonment for two years and fine of Rs.2,00,000/-. The Apex Court has also allowed set off for the period for which the petitioner was in judicial custody. The Apex Court did not issue a direction in the judgment that the sentence modified by it shall run concurrently with the one imposed on him by an earlier judgment. Crl.M.C. No. 1483 of 2022 -:11:- 11. The background of the case on hand being so, this Court is disempowered to issue the direction called for. The Apex Court did not mention while passing the judgment modifying the sentence imposed that, it shall run concurrently with the sentence which the petitioner is serving in a previous case. It can be inferred from the above that the Apex Court did not intend the sentence modified by it to run concurrently with any sentence which the petitioner was then undergoing. In the above context, there is no scope to interfere with. Crl.M.C fails and is dismissed. Sd/MARY JOSEPH, JUDGE. ttb Crl.M.C. No. 1483 of 2022 -:12:- ## **`APPENDIX OF CRL.MC 1483/2022`** ``` PETITIONER’S ANNEXURES : ``` ``` ANNEXURE 1COPY OF JUDGMENT OF THIS HON’BLE COURT DATED 22-08-2017 IN CRL.A NO. 1914/2010 ANNEXURE 2COPY OF COMMON JUDGMENT OF THIS HON’BLE COURT DATED 13-06-2016 IN CRL.A.NO. 1837/2010 AND CRL.A.NO. 1858/2010 ANNEXURE 3COPY OF JUDGMENT DATED 07-12-2021 IN CRL.A. NO. 1457/2021 ``` ``` RESPONDENTS’ ANNEXURES: NIL ``` ``` TRUE COPY ``` ``` P S TO JUDGE ```