Sivanandan vs The Superintendente, Central ...
2021 Latest Caselaw 15115 Ker

                                                                     "C.R."
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE ASHOK MENON
         TUESDAY, THE 20TH 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

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ASHOK MENON TUESDAY, THE 20TH 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 20th 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:

 W.P.(C) No.27959/2017 &
Crl.M.C.No.2625/2019





 Sl.          Case No.       Term of       Date of       Set off
 No.                        sentence      judgment

1      C.C.No.759/2013    2 years        29.12.2007   Not recorded
       JFCM North Paravur Rs.3000/-
                          ID 9 months
2      C.C.No.909/2004    2 years        29.12.2007   Not recorded
       JFCM North Paravur Rs.3000/-
                          ID 9 months

       JFCM North Paravur No fine                     (24.08.2007 -
                                                      10.01.2008)

       JFCM North Paravur Rs.3000/-                   (24.08.2007 -
                          ID 9 months                 10.01.2008)

       JFCM, Perumbavoor   Rs.500                     (17.09.2007-
                           5 days                     23.05.2008)

       JFCM-II, Ernakulam No fine                     (15.09.2007-
                                                      28.03.2008)

       JFCM North Paravur Rs.3000                     (17.10.2007-
                          ID 3 months                 22.06.2008)

       JFCM North Paravur Rs.8000/-                   (24.08.2007-
                          ID 9 months                 22.06.2008)

       JFCM North Paravur Rs.8000/-                   (17.10.2007 -
                          ID 9 months                 22.06.2008)
10     C.C.No. 644/2007   3 years        23.06.2008   280 days
       JFCM North Paravur Rs.5000/-                   (17.10.2007 -
                          ID 6 months                 22.06.2008)
11     C.C.No. 1218/2003   1 year        24.09.2009   Not mentioned
       JFCM, Aluva         Rs.10000/-                 in the warrant
                           ID 4 months
 W.P.(C) No.27959/2017 &
Crl.M.C.No.2625/2019






       JFCM North Paravur No fine                           (20.11.2008 -
                                                            3011.2009)

       JFCM, Aluva              No fine                     (24.08.2007 -
                                                            11.08.2010)
14     C.C.No. 2098/2008        6 months       30.09.2010   726 days
       JFCM, Thrissur           No fine                     (04.10.2008 -
                                                            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

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

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

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 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 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 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

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 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

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

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

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

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.