Sebastian @ Yesudas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** ## **MONDAY, THE 9TH DAY OF JANUARY 2012/19TH POUSHA 1933** ## **CRRP.No. 504 of 2011 ( )** **==================== CRA.246/2003 of ADDITIONAL SESSIONS COURT (ADHOC -I), ERNAKULAM** **.........** ## **REVISION PETITIONER(S)** **======================** **SEBASTIAN @ YESUDAS,S/O.ANTHAPPAN, CONVICT NO.2961, CENTRAL PRISON VIYYUR,THRISSUR.** **BY ADV SRI.THOMSTINE K.AUGUSTINE (STATE BRIEF)** ## **COMPLAINANT(S)** **==============** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM** **PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 25-11-2011 , THE COURT ON 09/01/2012 PASSED THE FOLLOWING:** **tss** **C.R.** ## **S.S.SATHEESACHANDRAN, J. ------------------------------Crl.R.P.NO.504 OF 2011 ----------------------------------Dated this the 9[th] day of January, 2012** ## **O R D E R** The revision numbered as above was taken on file on a petition sent from jail by a convict namely, Sebastian @ Yesudas, who is undergoing sentence imposed in various cases for different terms. He has sent the petition requesting for setting aside his conviction or in the alternative to allow him to undergo concurrently the sentences imposed, in four cases, C.C.Nos.541/1998, 802/1998, 874/1998 and 875/1998 on the file of the Chief Judicial Magistrate Court, Ernakulam. In all the aforesaid cases, after separate trial, he has been convicted of similar offences, as under Sections 457, 380 and 461 of the Indian Penal Code. 2. In C.C.No.874 of 1998, on his conviction, the magistrate has sentenced him to undergo simple imprisonment for two years each under Sections 457 and 380 of the IPC and six **Crl.R.P.NO.504/2011** **2** months under Section 461 of the IPC. Set off was allowed to him from 12.8.2002 till the date of the judgment, 26.11.2002. Sentences were directed to be undergone consecutively. His appeal Crl.A.No.902 of 2002 from the above case was dismissed by the Additional Sessions Judge with the modification of allowing him to undergo the sentences imposed concurrently. In C.C.No.875 of 1998, on his conviction, he was sentenced to undergo rigorous imprisonment for two years each for the offences under Sections 457 and 380 of the IPC with direction to undergo the sentences consecutively. Set off was declined holding that his detention during trial was not in connection with that case. He was acquitted of the offence under Section 461 of the IPC. His appeal, Crl.A.No.246 of 2003 against the conviction in the above case was turned down affirming the sentence also with the modification of allowing him to undergo the sentences imposed concurrently. In C.C.No.541 of 1998, the magistrate, on his conviction, has sentenced him to undergo rigorous imprisonment for two years each for the offences under Sections 457 and 380 of the IPC directing him to undergo such sentences **Crl.R.P.NO.504/2011** **3** concurrently. Set off was allowed to him for the period from 29.07.1997 to 09.12.1998 in the above case. He was found not guilty of the offence under Section 461 of the IPC in the above case and acquitted of that offence. The appeal preferred by him against the conviction in the above case numbered as Crl.A.No.191 of 2004 was turned down by the Additional Sessions Judge, Ernakulam, who affirmed the conviction and also sentence without modification. In C.C.No.802 of 1998, he was sentenced to undergo simple imprisonment for two years each for the offences under Sections 457 and 380 of the IPC and one year for the offence under Section 461 of the IPC with direction to undergo the sentences concurrently. No set off was allowed in this case. His appeal, Crl.A.No.193 of 2004 was dismissed by the Additional Sessions Judge. 3. A common revision in respect of four cases is not entertainable as separate revision in each case is the rule. However, taking note that the petitioner is a convict and the petition has been sent by him from jail, to canvass the reliefs **Crl.R.P.NO.504/2011** **4** urged for in respect of more than one case, I find, a disposal of his petition numbered as a revision and taken as such on merits not adhering to strict technical rules is called for to meet the ends of justice. So much so, I have considered the revision on its merits. 4. A counsel on State Brief, namely, Adv.Sri.Thomstine K. Augustine was appointed to address arguments on the revision numbered on the petition by the aforesaid convict. 5. I heard the learned counsel appointed as State Brief and also the learned Public prosecutor. 6. Nominal roll of the petitioner/convict forwarded by the Superintendent of Central Prison, Viyyur where the convict is now undergoing the sentences imposed disclose that on his conviction in 14 cases, all of them for offences of house breaking and theft, and, if no remission is allowed, sentences awarded for various terms under the cases would extent his imprisonment **Crl.R.P.NO.504/2011** **5** upto 13.07.2030. His age, as shown in the above roll sent on 12.10.2010, is 37 years. In the present revision, the conviction and sentence imposed against him in four cases, referred to above, alone arise for consideration, with the request made by him to undergo the sentences imposed in such cases to be suffered together. 7. The learned counsel appointed as State Brief rightly and correctly refrained from impeaching the conviction imposed against the accused in the four cases as his conviction concurrently entered in such cases is founded on unimpeachable legal evidence. In fact, in the petition sent by the convict also he has not raised any ground to assail his conviction passed in the aforesaid cases by the magistrate, as affirmed by the Sessions Judge turning down his appeals. 8. The learned counsel for the petitioner relying on **Ammavasai and another v. Inspector of Police, Valliyanur and others ((2000 9 SCC 749)** contended that since the **Crl.R.P.NO.504/2011** **6** offences for which the petitioner was convicted in all the cases are common, this Court can permit him to undergo the sentence imposed in all the four cases together. The counsel also relied on **State of Punjab v. Madan Lal ((2009) 5 SCC 238)** to support the argument that sentences awarded for various terms on conviction in a number of cases tried separately can be allowed to be undergone by the accused concurrently. In **Ammavasai and others case (cited supra)** , the plea made for undergoing the sentences imposed concurrently, in fact, was turned down; but, the Apex Court in exercise of its plenary power taking note of the total period of sentence awarded on the appellants extended to 35 years reduced the period of imprisonment to 14 years holding that it will be sufficient to meet the ends of justice. No proposition, leave alone, any guideline has been given in the aforesaid decision over the granting of modification of sentences, imposed in various cases, allowing them to be undergone concurrently. Needless to point out that the Apex Court under its plenary power enjoined under Section 143 of the Constitution can pass such orders as may be **Crl.R.P.NO.504/2011** **7** necessary to secure the ends of justice in any case. In the other decision cited by the counsel **State of Punjab's case (cited supra)** , challenge by the State was against the direction of the High Court allowing the accused/convict in three cheque cases to undergo the sentences imposed separately in such cases, concurrently. Complainant in all the three cheque cases was the same party and the transactions covered by the cheques related to the family of the respondent were taken note of by the High Court to permit the accused to undergo the sentences imposed concurrently in the three cases. The Apex Court in that case repelled the challenge raised against the direction of the High Court permitting the accused to undergo the sentences concurrently in the three cases. The transactions relating to the offences, which related to the family of the respondent, in all the three cheque cases, and, the complainant was common also, persuaded the High Court to allow the convict/accused to run the sentences concurrently, and it was found to be proper and correct requiring no interference by the Apex Court. However, in the present case, the transactions giving rise to the conviction **Crl.R.P.NO.504/2011** **8** of the accused in the four cases relate to commission of theft after house breaking over buildings situate at different places on different dates, having no connection other than that the offences thereof committed by him fall under the common sections of the Penal Code. When that be so, for the reason that the offences with which he was convicted, that alone, are common, but, arising from different transactions, he cannot be permitted to undergo concurrently the sentences imposed, separately, in such cases. The aforesaid decision also does not in any way assist the petitioner to seek suffering the sentences imposed in the cases concurrently. 9. Nominal roll of the petitioner/convict sent by the Superintendent of Central Prisons, Viyyur, as already indicated, disclose that the term of imprisonment awarded to him in various cases, 14 in number, would extend his imprisonment upto 13.07.2030. I have also taken note that the magistrate, on his conviction in the four cases covered by the revision, which granted him set off for the whole period of his detention during **Crl.R.P.NO.504/2011** **9** trial in only one case, that is, C.C.No.874 of 1998, for the period from 12.08.2002 till the date of judgment 26.11.2002. In C.C.No.802 of 1998, he was declined set off holding that his detention during trial was not in connection with such case. In C.C.No.541 of 1998, set off allowed was limited to the period from 29.07.1997 to 09.12.1998. Section 428 of the Code provides for setting off against the term of imprisonment imposed against the accused on his conviction, the period of detention, if any, undergone by him during the trial of the same case. The words “same case” have been considered and interpreted, as to how it has to be understood and given effect to, by the Apex Court in **State of Maharashtra and another v. Najakat @ Mubarak Ali (AIR 2001 SC 2255)** overruling the decision in **Raghbir Singh v. State of Haryana (AIR 1984 SC 1796)** , whereunder, it has held that set off could be allowed if only detention of the accused was in respect of the case he was convicted. A larger bench of the Apex Court in the aforesaid decision has held that the period during which the accused was in prison subsequent to the inception of the case in which he was **Crl.R.P.NO.504/2011** **10** convicted should be credited towards the period of imprisonment awarded as sentence in that particular case. The Apex Court has held thus: _“Reading Section 428 of the Code in the above perspective, the words “of the same case” are not to be understood as suggesting that the set off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words “of the same case” were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words. It must therefore be held that Section 428 of the Code permits the accused to have the period undergone by him in jail as an under-trial prisoner set off against the period of sentence imposed on him irrespective of whether he was in jail in connection with the same case during that period.”_ Such being the position of law, explained to by the Apex Court with respect to set off as under Section 428 of the Code, the magistrate was not justified in not allowing set off to the accused for the sentence awarded in two cases C.C.No.541 of 1998 and **Crl.R.P.NO.504/2011** **11** C.C.No.874 of 1998 restricting and limiting the period in another case holding that his detention in prison during the trial of such cases was as a convicted accused, in another case. Petitioner/accused is entitled to have set off the whole period of detention during the investigation/trial in the above cases in the sentences imposing substantive terms of imprisonment imposed in such cases as well. Relief of set off in the above cases, as indicated above, in modification of the order of the court below, is granted to him. The Apex Court in **Suraj Bhan v. Om Prakash and another (AIR 1976 SC 648)** pointing out that Section 428 of the Code confers a benefit on a convict reducing his liability to undergo imprisonment out of the sentence imposed for the period which he had already served as undertrial prisoner, has held the benefit thereunder could be invoked by him by way of a miscellaneous application to the court at any time while the sentence runs against him, to have appropriate orders. The procedure to invoke Section 428 of the Code by way of miscellaneous application as indicated even long after the passing of conviction but while the sentence imposed against the **Crl.R.P.NO.504/2011** **12** accused remains in force and continues to be suffered by him, has to be appreciated in the backdrop of the mandate of the Section for passing an appropriate order for reducing the term of imprisonment awarded taking into account the period of detention already suffered by him during investigation/trial of the case. In case the jail authorities face any difficulty in reckoning the period to be provided as set off in the above cases, it is open to them or even the accused to move the magistrate, before which he was tried and convicted, for issuing appropriate orders after perusal of the records and such enquiry as required to fix and determine the period of set off allowable to the accused in the above three cases. Except to the extent of granting the period of set off in the three cases as indicated above, the revision is meritless in all other respects and it is disposed of accordingly. ## **S.S.SATHEESACHANDRAN JUDGE** prp