SIVANANDAN v. STATE OF KERALA

**“C.R.”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943** **CRL.MC NO. 2625 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CC 28/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, NORTH PARAVUR, ERNAKULAM** ## **PETITIONER/S:** SIVANANDAN AGED 61 YEARS S/O. VAREETH, THOPPILAKADU, ERAMAM, 3 CENT COLONY, KUDUNGALLUR, MUPPATHADOM, PIN 683110,ERNAKULAM DISTRICT. BY ADVS. V.JOHN SEBASTIAN RALPH K.J.JOSEPH (ERNAKULAM) SRI.V.JOHN THOMAS SHRI. RALPH RETI JOHN SHRI.VISHNU CHANDRAN KUM. KEERTHANA SUDEV ## **RESPONDENT/S:** STATE OF KERALA, REP BY PUBLIC PROSECUTOR AT HIGH COURT OF KERALA. BY SR.PP. SRI.C.S.HRITWIK ## **OTHER PRESENT:** THIS CRL.M.C. HAVING COME UP FOR ADMISSION ON 30.06.2021, ALONG WITH WP(C).27959/2017, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING: _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY, THE 20[TH] DAY OF JULY 2021 / 29TH ASHADHA, 1943 WP(C) NO. 27959 OF 2017** ## **PETITIONER/S:** SIVANANDAN AGED 44 YEARS, S/O. VAREETH, RAMANATT THETTAYIL HOUSE, METHANAM BHAGOM, PANAIKULAM KARA, ALANGAD VILLAGE, ERNAKULAM DISTRICT. BY ADVS. SRI.V.JOHN SEBASTIAN RALPH SRI.JEFRIN MANUEL SRI.K.J.JOSEPH ERNAKULAM SRI.V.JOHN THOMAS ## **RESPONDENT/S:** 1 THE SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, VIYYUR, THRISSUR - 680 010. 2 PRINCIPAL SECRETARY DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. BY SR.PP. SRI.C.S.HRITWIK THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.06.2021, ALONG WITH Crl.MC.2625/2019, THE COURT ON 20.07.2021 DELIVERED THE FOLLOWING: _**“C.R.”**_ ## **JUDGMENT/ORDER** **[Crl.MC Nos.2625/2019, 27959/2017] Dated this the 20[th] of July 2021** The Writ Petition is filed under Article 226 of the Constitution of India; while the Crl.M.C. is filed under Section 482 of the Cr.P.C. 2. The petitioner is a convict undergoing imprisonment as Prisoner No.C.P.6567 in the Central Prison, Viyyur. The petitioner was involved in 14 criminal cases pending before different courts. All the cases pertain to offences like theft, housebreaking, lurking house trespass by night, theft of property from inside the house, etc. He pleaded guilty and was convicted in all the cases for a period ranging between 6 months imprisonment to 5 years imprisonment and fine. The petitioner was arrested on 10.04.2003 and has been in prison ever since. The petitioner was found guilty and convicted in 14 cases, details of which are as herein under: 4 ## _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ |**_Sl._**<br>**_No._**|**_Case No._**|**_Term of_**<br>**_sentence_**|**_Date of_**<br>**_judgment_**|**_Set off_**| |---|---|---|---|---| |1|C.C.No.759/2013<br>JFCM North Paravur|2 years<br>Rs.3000/-<br>ID 9 months|29.12.2007|Not recorded| |2|C.C.No.909/2004<br>JFCM North Paravur|2 years<br>Rs.3000/-<br>ID 9 months|29.12.2007|Not recorded| |3|C.C.No.605/2007<br>JFCM North Paravur|1 year<br>No fine|11/01/08|140 days<br>(24.08.2007 –<br>10.01.2008)| |4|C.C.No. 754/2007<br>JFCM North Paravur|2 years<br>Rs.3000/-<br>ID 9 months|10/01/08|140 days<br>(24.08.2007 –<br>10.01.2008)| |5|C.C.No. 1434/2007<br>JFCM, Perumbavoor|1 year<br>Rs.500<br>5 days|24.05.2008|250 days<br>(17.09.2007-<br>23.05.2008)| |6|C.C.No. 770/2007<br>JFCM-II, Ernakulam|2 years<br>No fine|29.03.2008|196 days<br>(15.09.2007-<br>28.03.2008)| |7|C.C.No. 646/2007<br>JFCM North Paravur|3 years<br>Rs.3000<br>ID 3 months|23.06.2008|250 days<br>(17.10.2007-<br>22.06.2008)| |8|C.C.No. 647/2007<br>JFCM North Paravur|3 years<br>Rs.8000/-<br>ID 9 months|23.06.2008|304 days<br>(24.08.2007-<br>22.06.2008)| |9|C.C.No. 645/2007<br>JFCM North Paravur|3 years<br>Rs.8000/-<br>ID 9 months|23.06.2008|280 days<br>(17.10.2007 –<br>22.06.2008)| |10|C.C.No. 644/2007<br>JFCM North Paravur|3 years<br>Rs.5000/-<br>ID 6 months|23.06.2008|280 days<br>(17.10.2007 –<br>22.06.2008)| |11|C.C.No. 1218/2003<br>JFCM, Aluva|1 year<br>Rs.10000/-<br>ID 4 months|24.09.2009|Not mentioned<br>in the warrant| _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 5 |12|C.C.No. 28/2005<br>JFCM North Paravur|5 years<br>No fine|04/11/09|349 days<br>(20.11.2008 –<br>3011.2009)| |---|---|---|---|---| |13|C.C.No. 1642/2009<br>JFCM, Aluva|1 year<br>No fine|12/08/10|1084 days<br>(24.08.2007 –<br>11.08.2010)| |14|C.C.No. 2098/2008<br>JFCM, Thrissur|6 months<br>No fine|30.09.2010|726 days<br>(04.10.2008 –<br>29.09.2010)| Set off is also allowed in certain cases, not in all cases. 3. Being different cases committed at different periods of time and pending before different courts, none of the courts exercised the discretion under Section 427 Cr.P.C to order the sentences to run concurrently. In such case, the sentences are to run consecutively one after the other, the petitioner will have to remain behind bars for 30 years and 6 months. The total fine amount imposed in all the cases together was ₹ 43,500/-. The petitioner states that he is old and infirm. The continued detention of the petitioner is illegal and therefore, specific orders may be made directing the jail authorities to release the petitioner. _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 6 4. Heard the learned Counsel for the petitioner Sri.John S.Ralph and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor for the State. Records perused. 5. The argument of the learned Counsel for the petitioner is that the Magistrates, who convicted the petitioner should have exercised the jurisdiction granted to the court under Section 427 of the Cr.P.C. He relies on several decisions where the jurisdiction under Section 427 of the Cr.P.C. was exercised by the Apex Court. The learned Counsel has relied on the decision in _**Abdul Rafoor,**_ ## _**v. Abdulla, 2005 KHC 1855 : 2005 (4) KLT 840**_ of this Court, wherein exercising jurisdiction under Section 482 of the Cr.P.C., this Court allowed the sentences in two different cases to run concurrently under Section 427 of the Cr.P.C. The accused therein was convicted for offences punishable under Section 138 of the Negotiable Instruments Act (for short “NI Act”) and substantive sentence of imprisonment was imposed on the petitioner therein in both the cases was directed to run concurrently by this Court. _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 7 6. The Hon'ble Supreme Court was also in several cases directed the sentences to run concurrently when the accused was convicted in more than one cases. In _**State of Punjab v. Madhan Lal, 2009 KHC 455**_ , a three Judge Bench of the Apex Court observed that when different cheques were issued by the accused to the complainant for which the complainant had filed separate complaints and separate cases were registered and punishment of imprisonment was awarded in all the cases, since all the transactions related to the family of the accused and matter related to different cheques issued by the accused to the complainant, sentences have to run concurrently exercising jurisdiction under Sections 427, 428 and 482 of the Cr.P.C. Similarly, the Apex Court has also in _**Shyam Pal vs Dayawati Besoya & another, 2016 (5) KHC 688 : AIR 2016 SC 5021**_ held that when two cheques were dishonoured and court convicted the accused in both the cases under Section 138 of the NI Act, all sentences were awarded in both the cases can run concurrently under Section 427 of the Cr.P.C. The Apex _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 8 Court had in _**Neera Yadav v. CBI, 2017 KHC 6223 : AIR 2017**_ _**SC 3791**_ observed that the power conferred on the court under Section 427 to order concurrent sentence is discretionary. The salutary principle adopted by the court is the totality of the sentences. The maximum sentence awarded in one case against the same accused is relevant while giving concurrent sentence in another case. Only in appropriate cases, considering the facts of the case, can the court make the sentence concurrent with an earlier sentence imposed exercising powers under Section 427 read with Section 31 of the Cr.P.C. 7. For granting the benefit of set off under Section 428 of the Cr.P.C., the pretrial detention of the accused has to be in the same case and not in a different case as is held by the Apex Court in _**State of Maharashtra v.**_ ## _**Najakat Alia Mubarak Ali, 2001 KHC 642 : AIR 2001 SC 2255**_ . 8. In the instance case, the petitioner had pleaded guilty in all the cases and in consequence to that he was awarded different sentences ranging from six months to five 9 ## _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ years of imprisonment and also fine. The petitioner has been in custody now for a period of more than 18 years. A report was filed by the Superintendent of Central Prison & Correctional Home, Viyyur stating that after adjusting the set off granted by the court, the remaining sentences will have to run consecutively and under those circumstances the petitioner has not completed his term of imprisonment in all the cases. 9. In _**Ammavassai & another v. Inspector of Police,**_ ## _**2000 KHC 1708 : AIR 2000 SC 3544**_ , the Apex Court considered several sentences imposed on the same accused for offences under Section 395 of the I.P.C. where he was sentenced to undergo rigorous imprisonment for 7 years in each of the cases. If the benefit conferred under Section 427 of the Cr.P.C. is not extended to him, he may have to undergo imprisonment for a total period of 28 to 35 years in jail and if the benefit is allowed, the accused therein would be out after serving 7 years awarded in one case. Considering the totality of the case and the gravity of the offence 10 ## _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ committed, the Hon'ble Apex Court held that if the appellant would undergo a total period of 14 years of imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice and accordingly after 14 years they were directed to be set free. ## 10. In _**V.K.Bansal v. State of Haryana & others, 2013**_ _**(3) KHC 34 : AIR 2013 SC 3447**_ , the Apex Court had held that when dishonour of cheque and conviction was awarded to an accused in more than one cases, the court has to exercise the discretion which would benefit the accused in cases where the prosecution is based on a single transaction, even if different complaints have been filed in respect of the same transaction and order the sentence to run concurrently. The Apex Court had again the opportunity to consider the scope of Section 427 of the Cr.P.C. In _**Benson**_ _**v. State of Kerala, 2016 KHC 6678**_ wherein this Court had refused to interfere in the case where the accused was sentenced to imprisonment in different theft cases holding 11 ## _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ that it was a discretion of the trial court to exercise jurisdiction under Section 427 of the Cr.P.C. The matter was taken to the Hon'ble Supreme Court and the Apex Court held that the normal rule regarding consecutive running of sentence is subject to a qualification and it is within the power of the court to direct that the subsequent sentence shall run concurrently with the previous sentence and referring to the decision in _**V.K.Bansal**_ ( _supra_ ) it was observed that the maximum sentence in respect of the crimes in which the accused therein was found guilty was two years rigorous imprisonment and the said crimes were committed of the same date and considering these facts, the Apex Court directed that sentences imposed in the said cases shall run concurrently. 11. In most of the decisions that has been relied on by the learned Counsel for the petitioner, the accused were convicted for offences punishable under Section 138 of the NI Act and cheques were issued during a short period, which were all dishonoured, attracting an offence under Section _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 12 138 of the NI Act. It is only in _**Benson v. State of Kerala**_ ( _supra_ ) that the Hon'ble Supreme Court considered that the petitioner is involved in several cases and after taking into consideration the entire facts and circumstances, it was observed that the petitioner would have to undergo imprisonment for three decades in case the sentences were to be undergone consecutively. And therefore, the petitioner was allowed the benefit under Section 427 of the Cr.P.C. and it was ordered that in four cases, where the imprisonment was only for two years, the sentences shall run concurrently. 12. In the instant case, the facts are almost similar and the petitioner had already undergone more than 15 years imprisonment and the maximum imprisonment that was awarded to him in one case is only 5 years in C.C.No.28/2005 on the files of Judicial First Class Magistrate Court, North Paravur as per the table extracted above. In all the remaining cases, he is only been sentenced to lessor imprisonment. Therefore, I find that it will be in the 13 ## _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ interest of justice if the court exercising its jurisdiction under Section 482 of the Cr.P.C. intervened to invoke the powers under Section 427 of the Cr.P.C. The very fact that such power under Section 482 of the Cr.P.C. is vested only in the High Court is a safeguard for the power being not abused and hence utmost care and caution is required while invoking the powers. The object of exercise of power being to prevent abuse of process of court and also to secure the ends of justice, it follows that ends of justice are higher than the ends of mere law - _**Moosa v. Sub Inspector of Police, 2006 KHC 184 (FB)**_ . Atleast in offences coming under Section 138 of the NI Act, this Court has exercised the power under Section 482 of the Cr.P.C. and permitted the accused convicted in another case to run consecutive sentences for the subsequent conviction. In the instant case, I find the petitioner had not even contested the cases and had pleaded guilty, in consequence of which he was sentenced to imprisonment. He is more than 60 years old and has been in prison for more than 18 years _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 14 now. Under the circumstances, exercising the jurisdiction under Section 482 of the Cr.P.C., the Writ Petition as also the Crl.M.C. are allowed and the respondents are directed to release the accused forthwith recording that he has undergone the sentence in all the crimes in which he was convicted. ## **Sd/-** **ASHOK MENON JUDGE** _dkr_ _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 15 ## **APPENDIX OF WP(C) 27959/2017** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN CC 28/2005 DATED 04.09.2009 ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT - I, NORTH PARAVUR. - EXHIBIT P2 THE TRUE COPY OF THE APPLICATION DATED 05.12.2016 FILED UNDER RIGHT TO INFORMATION ACT, 2005. - EXHIBIT P3 THE REPLY GIVEN BY THE SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, VIYYUR. - EXHIBIT P4 THE TABULAR FORM OF THE DETAILS GIVEN BY THE SUPERINTENDENT, CENTRAL PRISON AND CORRECTIONAL HOME, VIYYUR. - EXHIBIT P5 THE MEDICAL CERTIFICATE OF THE MOTHER OF THE PETITIONER DATED 27.05.2017, ISSUED FROM THE GOVT,. MEDICAL COLLEGE ERNAKULAM. _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 16 ## **APPENDIX OF CRL.MC 2625/2019** |PETITIONER ANNEXURE|| |---|---| |ANNEXURE 1|JUDGMENT IN C.C 28/2005 ON THE FILE OF JFCM,| ||NORTH PARAVUR DATED 04-11-2009| |ANNEXURE 2|TRUE COPY OF THE APPLICATION DATED 5-12-2016| ||FILED UNDER RTI ACT 2005| |ANNEXURE 3|REPLY TO APPLICATION DATED 4-12-2016 FILED| ||UNDER RTI ACT 2005| |ANNEXURE 4|TABULAR FORM OF THE DETAILS GIVEN BY THE| ||SUPERINTENDENT,C ENTRAL PRISON AND| ||CORRECTIONAL HOME VIYYUR| |ANNEXURE 5|JUDGMENT DATED 29-12-2007 BY JFCM, NORTH| ||PARAVUR IN C.C 759/2003| |ANNEXURE 6|JUDGMENT DATED 29-12-2007 BY JFCM, NORTH| ||PARAVUR IN C.C 909/2004| |ANNEXURE 7|JUDGMENT DATED 11-01-2008 BY JFCM, NORTH| ||PARAVUR IN C.C 608/2007| |ANNEXURE 8|JUDGMENT DATED 11-01-2008 BY JFCM, NORTH| ||PARAVUR IN C.C 754/2007| |ANNEXURE 9|JUDGMENT DATED 24-05-2008 BY JFCM,| ||PEERUMBAVOOR IN C.C 1434/2007| |ANNEXURE 10|JUDGMENT DATED 23-06-2008 BY JFCM, NORTH| ||PARAVUR IN C.C 646/2007| |ANNEXURE 11|JUDGMENT DATED 23-06-2008 BY JFCM, NORTH| ||PARAVUR IN C.C 647/2007| |ANNEXURE 12|JUDGMENT DATED 23-06-2008 BY JFCM, NORTH| ||PARAVUR IN C.C 645/2007| _**W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019**_ 17 |ANNEXURE|13|JUDGMENT DATED 23-06-2008 BY JFCM, NORTH| |---|---|---| |||PARAVUR IN C.C 644/2007.| |ANNEXURE|14|JUDGMENT DATED 24-09-2009 BY JFCM, ALUVA IN| |||C.C 1218/2013.|