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Judgment
The petitioner was the accused in C.C No.969/2011, 775/2011,776/2011, 914/2011, 822/2011 and 819/2011 on the file of the Court of the Judicial First Class Magistrate, Chavakkad ( ‘Trial Court’, for short), which have arisen from Crime Nos.129/2011, 431/20211, 460/2011, 660/2011 registered by the Vadanappally Police Station, and Crime No.651/2010 and 98/2011 registered by the Chavakkad Police Station, respectively, alleging that the petitioner has committed the offence punishable under Section 392 of the Indian Penal Code in all the six cases.
The Trial Court had convicted the petitioner in the above six cases, and sentenced him to undergo rigorous imprisonment for a period of two years in each case. Aggrieved by the conviction and sentences in all the above cases, the petitioner filed Crl.Appeal Nos.227/2012, 225/2012, 206/2012, 204/2012, 205/2012 and 232/2012 before the Additional Sessions Court, Thrissur ( ‘Appellate Court’, for short). However, all the appeals were dismissed confirming the conviction and sentence passed by the Trial Court in the six cases. Assailing the judgments passed in the appeals, the petitioner filed Crl.R.P. Nos.457/2016, 598/2016, 686/2016, 599/2016, 601/2016 and 600/2016 before this Court. By Annexures A1 to A5 orders, this Court confirmed the conviction in five cases, but reduced the sentence to rigorous imprisonment for one year in the said cases, and allowed set off. Crl. R.P. No. 599/2016, challenging the judgment in Crl.Appeal No.204/2012 was allowed, and the petitioner was acquitted. Pursuant to Annexures A1 to A5 orders, the petitioner was arrested on 16.06.2016, and he is now undergoing imprisonment in the Viyyur Central Jail. The petitioner has learnt that he has to undergo the imprisonment consecutively in the five cases, and not concurrently. If that be the case, instead of one year, the petitioner would have to undergo imprisonment for five years after the set off. This Court reduced the sentence on the finding that there was a chance of the petitioner getting reformed. All the crimes are of the years 2010 and 2011. Actually, the petitioner was living peacefully along with his wife and two sons. Now, the petitioner’s son has attained the marriageable age. After the set off for a period more than six months in all the cases, and the sentences are ordered to run concurrently, the petitioner can get released from jail immediately, if not the petitioner and his family would suffer irreparable hardship and prejudice. Hence, this petition is filed to order that the sentences imposed on the petitioner as per Annexure A1 to A5 orders to run concurrently.
I have heard the learned counsel for the petitioner and the learned Public Prosecutor.
By Annexures A1 to A5 orders, this Court has convicted the petitioner for allegedly committing the offence under Section 392 of the IPC and has ordered him to undergo rigorous imprisonment for a period of one year each in the five cases. The orders have apparently attained finality.
The petitioner’s request in this petition that the sentences imposed in the five cases be ordered to run concurrently.
In the above context, it is necessary to refer to Section 427 of the Code of Criminal Procedure, which is pari materia to Section 467 of the Bharatiya Nagarik Suraksha Sanhita, 2023( BNSS) and the latter provision reads as follows :
“Section 467 :-
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 141 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.”
Interpreting the erstwhile Section 427 of the Cr.P.C, in Samuel v. State of Kerala [2016 KHC 1028], , this Court held as follows:-
“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, sub- section (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 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.
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 the offences is not the same or the facts constituting the two offences are quite different. ( emphasis supplied)
This Court, while considering an identical question in Chandran v. State of Kerala [2020 (3) KLT 208], has held as follows:
“10.It is manifest from Section 427(1) of the Code that the Court has the power and the discretion to issue a direction that the subsequent sentence of imprisonment shall run concurrently with the previous sentence of imprisonment. But, in the very nature of the power so conferred upon the Court, the discretionary power shall have to be exercised along judicial lines and not in a mechanical or pedantic manner. The legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction.”
In M.R.Kudva v. State of Andhra Pradesh [(2007) 2 SCC 772], the Hon'ble Supreme Court, while considering Section 427 of the Code of Criminal Procedure, has held thus:
“12.However, in this case the provision of Section 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. Section 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 Section 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.”
On an overall consideration of the facts, the materials on record and the principles laid down in the afore-cited decisions, particularly the fact that the petitioner has been convicted and sentenced to undergo imprisonment in separate crimes in respect of different incidents by this Court and the orders have attained finality, I am of the firm view that the petitioner is not entitled to invoke the inherent powers of this Court under Section 528 of the BNSS for an order that the sentences are to run concurrently. This petition is meritless and is consequently dismissed. Nonetheless, it is clarified that, this order of dismissal shall not stand in the way of the petitioner moving the Government for appropriate reliefs. If such application is filed, the competent authority of the Government shall consider the application in accordance with law, notwithstanding this order.