MANIKANDAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 13TH DAY OF OCTOBER 2016/21ST ASWINA, 1938** **Crl.MC.No. 2588 of 2016 () ---------------------------** **AGAINST THE JUDGMENT IN CC NOS.455/2010,454/2010, 448/2010, 452/2010, 384/2010 AND 451/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM AND CC NOS.123/2010 & 124/2010 OF CHIEF JUDICIAL MAGISTRAGE COURT, ALAPPUZHA, FOR AN ORDER OF CONCURRENCY IN UNDERGOING IMPRISONMENT** **CRIME NO. 215/2010 OF KAYAMKULAM POLICE STATION** **PETITIONER/ACCUSED:** **------------------** **MANIKANDAN, CONVICT NO.5721, CENTRAL PRISON, THIRUVANANTHAPURAM.** **BY ADV. SRI.JOSE JACOB (STATE BRIEF)** ## **RESPONDENT/COMPLAINANT: ----------------------** ## **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** **BY PUBLIC PROSECUTOR STRI T.R.RANJITH** **THIS CRIMINAL MISC.CASE HAVING COME UP FOR ADMISSION ON 13-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Crl.MC.No. 2588 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** |**ANNEXURE A1 :**|**COPY OF JUDGMENT DATED 11TH AUGUST, 2011 IN CC**| |---|---| ||**NO.455/2010 OF the JUDICIAL FIRST CLASS MAGISTRATE,**| ||**KAYAMKULAM**| |**ANNEXURE A2 :**|**COPY OF the JUDGMENT DATED 18.08.2011 IN CC**| ||**NO.454/2010 OF the JUDICIAL FIRST CLASS MAGISTRATE**| ||**COURT KAYAMKULAM**| |**ANNEUXRE A3 :**|**COPY OF THE JUDGMENT DATED 11.08.2011 IN CC**| ||**NO.448/2010 OF THE JUDICIAL FIRST CLASS MAGISRATE**| ||**COURT, KAYAMKULAM**| |**ANNEXURE A4 :**|**COPY OF JUDGMENT DATED 26.05.2011 IN CC NO.452/2010**| ||**OF THE JFCM COURT, KAYAMKULAM**| |**ANNEXURE A5 :**|**COPY OF THE JUDGMENT DATED 22.08.2011 IN CC**| ||**NO.384/2010 OF JFCM COURT, KAYAMKULAM**| |**ANNEXURE A6 :**|**COPY OF THE JUDGMENT DATED 09.06.2011 IN CC**| ||**NO.451/2010 OF JFCM COURT, KAYAMKULAM**| |**ANNEXURE A7 :**|**COPY OF THE JUDGMENT DATED 7.02.2011 IN CC**| ||**NO.123/2010 OF CJM COURT, ALAPPUZHA**| |**ANNEUXRE A8 :**|**COPY OF THE JUDGMENT DATED 04.02.2011 IN CC**| ||**NO.124/2010 OF CHIEF JUDICIAL MAGISRATE COURT,**| ||**ALAPPUZHA**| |**RESPONDENTS' **|**ANNEXURE:**<br> **N I L**| ## **//TRUE COPY//** **PA TO JUDGE** **JV** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 2588 of 2016 - - - - - - - - - - - - - - - - Dated 13[th] October, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** 1.The petitioner during the year 2009 and 2010 got himself involved in not less than eight cases for house trespass and burglary. In all these cases he was found guilty and was sentenced to various terms of imprisonment. In six cases which were tried before the court of the Judicial Magistrate, Kayamkulam, he was convicted on all counts, however the sentences were ordered to run concurrently. However in two cases which were tried in the court of the Chief Judicial Magistrate Court, Alappuzha, taking note of the antecedents of the petitioner, he was directed to undergo imprisonment on both the counts consecutively. More specifically in C.C. No 123/2010, the petitioner was convicted under section 457 and 380 of the IPC and he Crl.M.C. No.2588 of 2016 -2- was sentenced to undergo 2 years under section 457 and 2 years for the offence under 380 of the IPC. In the same manner in C.C. No.124 of 2010 he was convicted under section 457 and 394 of the IPC and he was sentenced to undergo rigorous imprisonment for 3 years for the offence under section 457 and rigorous imprisonment for 3 years under section 394 of the IPC. However, the sentences were ordered to run concurrently. - 2.The prayer in this petition is issue an order to enable the petitioner to undergo the imprisonment in all these cases concurrently. - 3.Since the petition was filed from Jail, a legal aid counsel was appointed as State brief to prosecute this petition. - 4.The learned counsel appearing for the petitioner would persuasively argue relying on the judgment of the Apex Court in **State of Punjab v. Madan Lal** [2009 (5) SCC 238], of this Court in **Ulahannan V. State of Kerala** - [2002 (3) KLT 357] and **Benson v State of Kerala and** Crl.M.C. No.2588 of 2016 -3- **Another** [2014 KHC 596] that this is a fit case in which the sentence imposed on the petitioner be ordered to run concurrently. Referring to para 23 of the judgment in **Benson** (supra) it is pointed out by the learned counsel that in appropriate cases some 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, depending upon the nature of offence or offences committed, the conduct of the accused, possibility of reformation, the circumstances under which the offence was committed, whether the premature release of the accused will be welcomed by the society and also the fact as to whether the releasing of the petitioner from jail prematurely will be a menace to the society etc. Crl.M.C. No.2588 of 2016 -4- 5.According to the learned Counsel, the petitioner is aged 30 years and if he is to undergo sentence imposed in all these cases, he will have to undergo imprisonment for a total period of 16 years and 3 months. However if leniency is shown in the peculiar facts and circumstances and it is ordered that the sentence shall run concurrently, the petitioner can be released from incarceration. It is also submitted that in so far as the sentence in C.C.Nos.123 and 124 of 2010 in which cases consecutive sentences have been ordered, if the same is directed to run consecutively, the total period will stand reduced to 11 years and 3 months. - 6.The submissions of the learned counsel is firmly refuted by the learned Public Prosecutor . Referring to the decision 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 and Another** [2013 (7) Crl.M.C. No.2588 of 2016 -5- SCC 211] it is contended that what is to be taken note of by this Court while considering the petition is the single transaction rule. 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, the petition is liable to be dismissed. - 7.I have considered the rival submissions and gone through the precedents cited by the opposing counsel. It will be relevant to refer to section 427 of the Code of Criminal Procedure at this juncture . "Section 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 Crl.M.C. No.2588 of 2016 -6- 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." 8.While sub-section (2) of S.427 Cr.P.C. provides that when a person 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 with such previous sentence. Subsection (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 Crl.M.C. No.2588 of 2016 -7- 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. 9.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 that since Section 427 Cr.P.C. Crl.M.C. No.2588 of 2016 -8- 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. ( Emphasis supplied)_ - 10.The same view was taken by the Apex Court in **V.K. Bansal** (supra), in which case, the Apex Court, after Crl.M.C. No.2588 of 2016 -9- referring to **Mohd. Akhtar Hussain** (supra), it was observed that the 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 offenses are quite different. - 11.The learned counsel appearing for the petitioner would submit that the petitioner has not challenged the finding of guilt passed by the courts below and therefore, the principle laid down by the Apex Court in **M. R. Kuduva** ( supra ) will not apply. However taking note of the single transaction rule, I am of the view that the prayer of the petitioner that the sentences in all the cases should be directed to run concurrently cannot be sustained. - 12.The learned counsel appearing for the petitioner at this stage would submit that he would limit his prayer to the sentence ordered by the Chief Judicial Magistrate, Crl.M.C. No.2588 of 2016 -10- Alappuzha in C.C.No.123/10 and C.C.No.124/10. It is submitted that the petitioner has been directed to suffer the imprisonment consecutively on two counts in these two cases. Much reliance is placed by the learned counsel on various decisions to contend that in the peculiar facts of the instant case, this court will be justified in interfering with the sentence in these 2 cases to secure the ends of Justice. 13.I have anxiously considered the submission of the learned counsel. The petitioner is aged 30 years at present and if he is to undergo sentence imposed in all these cases, he will have to undergo imprisonment for a total period of 16 years and 3 months. In so far as the sentence in C.C.Nos.123 and 124 of 2010 is concerned, he has been ordered to undergo consecutive sentences. If said sentences ordered on two counts in both the said cases are ordered to run concurrently, the total period will stand reduced to 11 years and 3 months is the Crl.M.C. No.2588 of 2016 -11- submission. In the aforesaid cases , as has been stated above, the petitioner has been found guilty for the offence of theft/dacoity and criminal trespass and the imprisonment ordered on both counts has been ordered to run consecutively. ## 14.In State of **Maharashtra v. Najakat Ali Mubarak** (2001) 6 SCC 311 it was held by the apex Court in paragraph No.17 as follows: _“17. In the above context, it is apposite to point out that very often it happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well”_ 15.Having regard to the age of the petitioner at the time of committing the offences, I am of the considered view that it will be only just and proper to allow the sentences on two counts in C.C.Nos.123 and 124 of 2010 to run Crl.M.C. No.2588 of 2016 -12- concurrently. In respect of other cases mentioned above are concerned, no reliefs are required to be granted. The petitioner has not challenged the said sentence in appeal and therefore the directions in **M.R. Kuduva** (supra) that this Court shall not interfere under section 482 of the Code of Criminal Procedure, cannot be said to apply. 16.In the result, this petition will stand disposed off as follows: a)The separate sentence of imprisonment ordered for the offence under Section 457 and 380 of the IPC by judgment dated 7.2.2011 in C.C.No.123 of 2010 is ordered to run concurrently. b) The separate sentence of imprisonment ordered for the offence under Section 457 and 394 of the IPC by judgment dated 7.2.2011 in C.C.No.124 of 2010 is ordered to run concurrently. Registry is directed to communicate the order to the prison authorities and to the petitioner who is now Crl.M.C. No.2588 of 2016 -13- undergoing sentence in the Poojappura Central Jail, Thiruvananthapuram. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-15.10.16