The Madurai Bench of the Madras High Court was dealing with a Criminal Original Petition filed under Section 482 of the Criminal Procedure Code, praying for issuance of a direction confirming that the sentences of imprisonment passed in two cheque bounce cases are to be undergone concurrently and not consecutively.
Facts:
The petitioner was prosecuted for the offences under Section 138 of the Negotiable Instruments Act, 1881, before the Judicial Magistrate, upon complainants filed by 2 complainants. The petitioner who was accused in both the cases was acquitted by the trial Magistrate. Aggrieved by the same, the complainants filed Criminal Appeals before the Additional District and Sessions Judge. The appellate Judge set aside the orders passed by the trial court and found the petitioner guilty and sentenced him to undergo one-year Simple Imprisonment in each case. The petitioner thereupon filed Criminal Revision Cases before the Madurai Bench of the Madras HC. Both the revision cases were dismissed and the judgments of conviction and sentence passed by the Sessions Judge were confirmed. Pursuantly the petitioner was taken to custody.
This Criminal Original Petition was filed before the HC for seeking a direction that the sentences passed and confirmed in both the cases shall run concurrently.
High Court’s observations:
The High Court noted that the appellate Judge did not specifically give a direction that the sentence of one-year Simple Imprisonment imposed in one case will run concurrently along with the sentence imposed in the other. While dismissing the Revision Cases no such direction was issued in favour of the petitioner. The HC had merely confirmed the conviction and sentence passed by the appellate Court. Therefore, the effect of consecutiveness set out in Section 427 of Cr.P.C., seems to kick in.
The bench parsed Section 427 of Cr.P.C. into its component parts:
- A person is already undergoing a sentence of imprisonment.
- he 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.
The aforesaid provision states that if the sentencing court fails to give a specific direction that the subsequent sentence shall run concurrently with the previous sentence, it would run only consecutively.
The High Court observed that,
“A closer reading of the provision would indicate that the condition precedent for the application of Section 427 of Cr.P.C is that the person must be already undergoing a sentence of imprisonment when he is convicted on a subsequent occasion and sentenced. The whole issue turns on the expression “already undergoing a sentence of imprisonment”. “Already” means “before a particular time in the past or before now”. “Undergoing” means “experiencing something” (Oxford Advanced Learner's Dictionary, New 9th Edition). One cannot be said to be undergoing a sentence of imprisonment unless warrant for its execution had been issued under Section 425 of Cr.P.C and it had taken effect. Only if the convict had been physically detained pursuant to such warrant, he can be said to be undergoing a sentence of imprisonment and not otherwise.”
Thus, the bench expounded that for Section 427 (1) of Cr.P.C to apply, the condition precedent must be that, “the person convicted and sentenced on the subsequent occasion was already undergoing a sentence of imprisonment in the previous case. If he was not so undergoing a sentence in the previous case, Section 427 (1) will not apply at all. I must emphasize that Section 427 of Cr.P.C does not talk of a person already sentenced to a term of imprisonment being sentenced on a subsequent conviction to a term of imprisonment. The legislature has carefully added the words “already undergoing”. This is significant. No word occurring in a statutory provision can be ignored. Each expression has to be given its full effect.”
The Court further explained,
“Suppose on a single day, an accused is found guilty in more than one case and sentenced. It is for the court concerned to clarify as to when the sentence in the subsequent case will take effect. If the court is silent on this aspect, the sentences will start running from the date when they were given effect to. Section 427 (1) has prescribed the manner in which the sentence will run. It states that if the court is silent and had not given any direction that the sentence given in the subsequent case will run concurrently, it will run only consecutively. Such an adverse consequence emanating from the silence of the court has a serious implication for personal liberty. The Constitution attaches a very high value to personal liberty. Therefore, such a provision must be construed in a manner that is at once fair, just and reasonable. Only by giving full effect to the expression “already undergoing” such a result can be obtained.”
High Court held:
The Court observed that in the present case, both the judgments of conviction and sentence were handed out on the same day, so, when the second judgment of conviction and sentence was pronounced, the petitioner had only been sentenced to a term of imprisonment and he was not undergoing a sentence of imprisonment. Therefore, the High Court held that the effect of consecutiveness provided for Section 427(1) of Cr.P.C., will not kick in, because the petitioner was not undergoing any sentence of imprisonment when he was found guilty in the second case.
Thus, as a result of the silence on the part of the appellate court or the revisional court in the case on hand, the petitioner cannot be made to undergo the two sentences consecutively. However, the Court made it clear that it is not for a moment giving a direction that the sentences will run concurrently, though even without a specific direction that would be the result. Thus, by giving relief to the petitioner, the Court stated that it was in no way transgressing the mandate set out in Section 362 of Cr.PC.
The High Court allowed the Criminal Original Petition and ordered the petitioner pays a sum of ₹75,000 each as cost to the complainants.
Bench: Justice G.R. Swaminathan
Case Title: G. Saravanan v. J. Sankaranarayanan
Case Details: Crl.O.P(MD)No.14056 of 2019
Counsel for Petitioner: Adv. N. Dilip Kumar
Counsel for Respondent: Adv. J. Jeyakumaran
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