Samuel v. State of Kerala and The Superintendent, Central Prison, Viyyur

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 4TH DAY OF AUGUST 2016/13TH SRAVANA, 1938** ## **WP(C).No. 11618 of 2015 (B)** **----------------------------** ## **PETITIONER(S)/PETITIONER:** **------------------------** **SAMUEL, AGED 54 YEARS,** **S/O.DANIEL, KIZHAKKETHIL VEEDU, VANIYAMBARA DESOM. (NOW UNDERGOING IMPRISONMENT AT CENTRAL JAIL, VIYYUR, THRISSUR, AS CONVICT NO C-734)** **BY ADVS.SRI.E.C.POULOSE SMT.BOBBY RAPHEAL.C** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. STATE OF KERALA** **REP BY THE SECRETARY, HOME DEPARTMENT,GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001** ## **2. THE SUPERINTENDENT** **CENTRAL PRISON, VIYYUR, THRISSUR-680001** **BY ADV. GOVERNMENT PLEADER SRI.TOM JOSE PADINJAREKKARA.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 11618 of 2015 (B) ----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------P1:TRUE COPY OF THE JUDGMENT DTD 9/2/2010 IN SC NO 348/2008 OF ADDL.DISTRICT & SESSIONS JUDGE, FAST TRACK COURT I, THRISSUR P2:TRUE COPY OF THE JUDGMENT DTD 14/7/2011 IN CRL.APPEAL NO 589/2010 OF THIS HON'BLE COURT P3:- TRUE COPY OF THE JUDGMENT DTD 13/1/2000 IN SC NO 73/1995 OF ASSISTANT SESSIONS COURT, PALAKKAD DIVISION RESPONDENT(S)' EXHIBITS : NIL -----------------------** ## **//TRUE COPY//** **P.A TO JUDGE.** ## **('CR')** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - W.P.(C). No. 11618 of 2015 - - - - - - - - - - - - - - - - Dated 4[th] August, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** - 1.In this petition filed under Article 226 of the Constitution of India, the petitioner seeks for an order allowing him to suffer the sentence imposed against him in S.C.No.348 of 2008 on the files of the Additional District and Sessions Court, Fast Tract-I, Thrissur and also in S.C.No.73 of 1995 on the files of the Assistant Sessions Court (Principal), Palakkad concurrently after including the set off period in both the cases. - 2.The petitioner got himself involved in several crimes in his hey days and the relief prayed for involves two of such cases, which has ended in conviction. The details are as follows . W.P.(C). No.11618 of 2015 -2- |**Case No**|**Date of**<br>**commission**<br>**of offence**|**Tried by**|**Convicted**<br>**on**|**Sentence**| |---|---|---|---|---| |SC 348<br>of 2008|22/7/2009|Additional District and<br>Sessions Court, Fast<br>Tract I, Thrissur|09/02/10|(I) S 457 r/w 34 – 14<br>years and Rs 5000 ID<br>SI six months<br>(ii)S 307 rw 34 – 10<br>years and Rs 10,000/<br>ID SI for one year<br>(iii) 393 r/w 34 – 7<br>years and Rs 5000 ID<br>six months| |SC 73 /<br>1995|01/07/94|Assistant Sessions Court<br>(Principal), Palakkad|13.1.2000|(I) S. 392 – RI for 10<br>years<br>(ii) S. 397 – RI for 10<br>years| - 3.In so far as S.C.No.348 of 2008 is concerned, the said case was taken up in appeal and by Exhibit P2 judgment, the findings of the trial court except for the offence under section 457 r/w section 34 of the IPC was confirmed. The imprisonment awarded by the trial court under section 457 of the IPC was reduced to a term of 10 years by the Appellate Court . - 4.According to the learned counsel appearing for the petitioner, the petitioner has already undergone 6 years of imprisonment. It is further submitted that if direction is W.P.(C). No.11618 of 2015 -3- not issued by this Court to run the sentence concurrently, the petitioner will have to undergo sentence for the rest of the period consecutively. It is the submission of the learned counsel that the petitioner is now a reformed person and a lenient view is to be taken. 5.The learned counsel relies on a statement submitted by the Superintendent of Central Prison, Viyyur as directed by this Court. In the said statement it is reported that the petitioner herein has already undergone the actual sentence of 6 years 9 months and 2 days of imprisonment as on 9.12.2015. It is also reported that the conduct and character of the petitioner inside the prison is good and no disciplinary action has been initiated against him till date. The said statement is dated 9.12.2015. It is further submitted that the petitioner is at present aged 54 years and is having age related ailments. His wife is living alone as his children has been married off. It is also pointed out that the wife of the petitioner is having various ailments. W.P.(C). No.11618 of 2015 -4- 6.The learned counsel would rely on the judgment of Apex Court as well as this Court in **State of Punjab v. Madan Lal** [2009 (5) SCC 238], **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 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 releasing him from jail W.P.(C). No.11618 of 2015 -5- prematurely will be a menace to the society etc. 7.The submissions of the learned counsel is firmly refuted by Sri. Tom Jose Padinjarekkara, the learned Additional Director General of Prosecution. The learned ADGP refers to the judgment 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) SCC 211] and contends 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 both 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. 8.It is pointed out that in respect of the incident involved in S.C.N.348 of 2008, the allegation was that the petitioner along with other accused had committed lurking house W.P.(C). No.11618 of 2015 -6- trespass by night and after committing theft of gold ornaments had stabbed the injured witnesses mercilessly. In S.C.No 73/1995 , the petitioner and the co-accused are alleged to have entered the house of the injured witnesses wearing masks and thereafter committed robbery of gold ornaments and thereafter they assaulted the occupants with dangerous weapons. The learned ADGP submits that a plain reading of Section 427 of the Code of Criminal Procedure (hereinafter referred to as the “Code”) would indicate that the sentence imposed in different cases unless it satisfies the directives in Section 427 of the Code shall have to run consecutively and not concurrently . - 9.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 W.P.(C). No.11618 of 2015 -7- 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." - 10.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 W.P.(C). No.11618 of 2015 -8- 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 W.P.(C). No.11618 of 2015 -9- previous sentence. 11.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. 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_ W.P.(C). No.11618 of 2015 -10- _the offences is not the same or the facts constituting the two offences are quite different. ( Emphasis supplied)_ 12.In **M.R. Kudva** V **State of A.P.** ( 2007 (2) SCC 772 ) (supra) 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 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.”_ W.P.(C). No.11618 of 2015 -11- 13.The same view was taken by the Apex Court in **V.K. Bansal ,** in which case , the Apex Court, after 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 offenses is not the same or the facts constituting the two offenses are quite different. 14.In Exhibit P1 judgment, the fact that the petitioner is involved in a number of similar crimes were brought to the notice of the learned Sessions Judge. This aspect was also taken note of by this court as is evident from Exhibit P2 judgment. In spite of the above, the trial court or the appellate court did not deem it necessary to pass orders in terms of Section 427 (1) of the Code. It is by now settled that when Section 427 of the Code was not invoked while the proceedings were pending before the trial court or in appeal or revision, separate application filed before the W.P.(C). No.11618 of 2015 -12- High Court cannot be maintained. 15.Having regard to the conviction of the applicants on two distinct and different sets of facts constituting two distinct and different offences committed on two different dates and also the fact that the learned Sessions Judge who had tried S.C.No 348 of 2008, despite having notice of the petitioners conviction in Sessions Case No.73/1995 did not pass an order under S.427 Cr.P.C., I am of the view that the petitioner is not entitled to an order under S.427 of Cr.P.C. Accordingly, this writ petition is dismissed. However, the dismissal of this petition will not prevent the petitioner from moving the Government for appropriate reliefs. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-20.8.16