Renjith @ Munna vs State Of Kerala
2023 Latest Caselaw 5747 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                       CRL.MC NO. 2533 OF 2021
       [ARISING OUT OF C.C.NO.1683/2018, C.C.NO.1684/2018,
      C.C.NO.1685/2018, C.C.NO.1686/2018, C.C.NO.1687/2018 &
C.C.NO.2096/2018 OF CHENGANNUR POLICE STATION, ALAPPUZHA DISTRICT]
PETITIONER/ACCUSED NO.1:

            RENJITH @ MUNNA
            AGED 34 YEARS
            S/O.RAVEENDRANATH, MANGALATHU VEETIL, AREEKKARA MURI,
            MULAKUZHA VILLAGE, ALAPPUZHA DISTRICT, PIN 689 505
            BY ADV V.A.AJIVAS


RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
            ERNAKULAM.

            SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR


     THIS   CRIMINAL   MISC.   CASE   HAVING   BEEN   FINALLY   HEARD   ON
23.05.2023, THE COURT ON 24.05.2023 PASSED THE FOLLOWING:
 CRL.MC No.2533 of 2021              2


                              ORDER

The petitioner is a person who was found guilty by the

Judicial First Class Magistrate Court-1, Chengannur, in six

Calendar Cases for the offences punishable under Sections 379

and 511 of 379 of the Indian Penal Code (IPC). He approached

this Court, seeking a direction that the sentences imposed by the

learned Magistrate in the said Calendar Cases shall run

concurrently.

2. The facts which led to the filing of this Crl.M.C. are as

follows: The petitioner was implicated as the 1 st accused in

C.C.Nos.1683/2018, 1684/2018, 1685/2018, 1686/2018,

1687/2018 and 2096/2018 on the file of the Judicial First Class

Magistrate Court-1, Chengannur. The offence involved in all the

aforesaid Calendar Cases except C.C.No.1687/2018 was under

section 379 IPC. In C.C.No.1687/2018, the offence alleged was

under section 511 of 379 of IPC. All these cases were tried by

the learned Magistrate and disposed of as per Annexure A series of

judgments passed on the same day, ie. on 25.06.2018. In all the

aforesaid cases except in C.C.No.1687/2018, the petitioner was

sentenced to undergo simple imprisonment for three years,

whereas in C.C.No.1687/2018, the petitioner was sentenced to

undergo simple imprisonment for one year. The petitioner has

been in custody since 18.01.2018. In all the aforesaid cases, the

petitioner pleaded guilty, and the orders of conviction and

sentence were passed accordingly.

3. The grievance highlighted by the petitioner was that, in

the judgments rendered by the learned Magistrate, even though it

was observed that, the period undergone in judicial custody as an

under-trial prisoner shall be set off against the period of

imprisonment, it was not specifically observed that the different

sentences imposed on those cases should run concurrently. Since

it was not specifically made as concurrent sentences, by the

operation of section 427(1) of Code of Criminal Procedure, the

petitioner had to undergo imprisonment as per the separate

judgments for the said cases consecutively. It is pointed out that,

if the sentences imposed by the learned Magistrate are to be

undergone consecutively, ie. one after the other, the petitioner will

have to undergo incarceration for a period of 16 years. According

to him, compelling the petitioner to undergo imprisonment for

such a long period is against the principles enshrined under Article

21 of the Constitution of India and therefore, liable to be interfered

with. It is pointed out that, the maximum punishment that can be

imposed for an offence under section 379 of IPC is imprisonment

for only three years. As of now, the petitioner has already

undergone imprisonment for more than five years. This Crl.M.C.

is submitted in such circumstances.

4. Heard Sri. V.A. Ajivass, the learned counsel for the

petitioner and Sri. C.S. Hrithwik, the learned Public Prosecutor for

the State.

5. The crucial contention that the petitioner raises in this

case is the prejudice that is caused to the petitioner because,

Annexure-A series of judgments rendered by the learned

Magistrate are silent with regard to the manner in which the

petitioner had to undergo the said separate sentences i.e. whether

to run concurrently or consecutively.

6. In response to the averments contained in the Crl.M.C,

a statement was submitted by the Superintendent, Central Prison

and Correctional Home, Thiruvananthapuram, showing the details

of the sentences of the petitioner who is now imprisoned as C.

No.2817, which are as follows:

CONVICTION DETAILS OF C.NO.2817 RENJITH @ MUNNA

Sl. No. CASE DETAILS SENTENCE SET OFF RELEASE DATE FINE ALLOWED RELEASE DATE 1 C.C. 1683/2018 Simple Imprisonment 158 days set off 17.01.2021 NA Hon: Judicial First Class for 3 years u/s 379 allowed from Magistrate-1, Chengannur r/w 34 IPC 18.01.2018 to Ex Wrnt 29/2018 dated 24.06.2018 25.06.2018

2 C.C. 1684/2018 Hon: Simple Imprisonment 158 days set off 12.08.2023 NA Judicial First Class for 3 years u/s 379 allowed from Magistrate-1, Chengannur r/w. 34 IPC 18.01.2018 to Ex Wrnt 30/2018 dated 24.06.2018 25.06.2018 3 CC 1685/2018 Hon: Simple Imprisonment 158 days st off 07.03.2026 NA Judicial First Class for 3 years u/s 379 allowed from Magistrate-1, Chengannur r/w. 34 IPC 18.01.2018 to Ex Wr nt 31/2018 dated 24.06.2018 25.06.2018 4 CC 1686/2018 Simple Imprisonment 158 days set off 30.09.2028 NA Hon: Judicial First Class for 3 years u/s 379 allowed from Magistrate-I, Chengannur r/w 34 IPC 18.01.2018 to Ex Wr nt 32/2018 dated 24.06.2018 25.06.2018 5 CC 1687/2018 Simple Imprisonment 158 days set off 25.04.2029 NA Hon: Judicial First Class for 1 year u/s 511 of allowed from Magistrate-1, Chengannur 379 IPC 18.01.2018 to Ex Wr nt 33/2018 dated 24.06.2018 25.06.2018 6 CC 2096/2018 Simple Imprisonment 158 days set off 19.11.2031 NA Hon: Judicial First Class for 3 years u/s 379 allowed from Magistrate-I, Chengannur r/w 34 IPC 18.01.2018 to

Ex Wr nt 34/2018 dated 24.06.2018 25.06.2018 7 CC 609/2018 Rigorous 361 days set off 23.05.2032 7.6.2032 Hon: Judicial First Class Imprisonment for 1 allowed from Magistrate (temp), Attingal year and 6 months 08.02.2018 to Ex Wr nt 35/2018 dated and to pay fine of 03.02.2019 04.02.2019 Rs.2000 i/d SI for 15 days u/s 379, 34 IPC 8 CC 293/2018 Rigorous 542 days set off 27.11.2032 12.12.2032 Hon: Judicial First Class Imprisonment for 2 allowed from (Default Magistrate-II, Kottarakkara years u/s 379 IPC. 20.02.2018 to sentence as Ex Wr nt 20/2018 dated 15.08.2019 per CC 16.8.2019 609/2018 of JFCM, Attingal)

In the said statement, it was also averred that, besides the crimes

referred to above, the petitioner was also found guilty in two other

cases, namely C.C.No.609/2018 by the Judicial First Class

Magistrate (Temp), Attingal and C.C.No.293/2018 by the Judicial

First Class Magistrate-II, Kottarakkara. The offences alleged

therein are also under section 379 of IPC. The sentences imposed

therein are rigorous imprisonment for one year and six months and

also to pay a fine of Rs.2000 with a default sentence of Simple

Imprisonment for 15 days and rigorous imprisonment for two

years, respectively. As per the details furnished by the learned

Public Prosecutor, which are extracted above, if the sentences are

to run consecutively, the petitioner has to be under incarceration

till 19.11.2031, in respect of the sentences passed as per six cases

referred to in this Crl.M.C, including the period of set off which

he is entitled to. (The period of final release of the petitioner shall be

27.11.2032, if the sentences imposed as per C.C No 609/2018 and C.C No

293/2018 are taken into consideration). In this factual background, the

relief sought for by the petitioner is to be considered.

7. Section 427 of Cr.PC deals with the manner in which the

convict has to undergo the sentence of imprisonment, and the said

provision reads as follows:

427. 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 122 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.

As per sub-section (1) of Section 427, if 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 it shall run concurrently .

Therefore, it is evident that the mandate that the subsequent

sentence shall commence at the expiration of the previous

imprisonment, is not absolute, but instead, the court concerned is

vested with ample power to order that the sentences shall run

concurrently. In the aforesaid provision, the expression used is

only 'Court', and it does not indicate that, the court referred to

therein is the court which convicted the accused (trial court) alone.

Going by the language used in section 427 Cr.PC, it can be seen

that the order directing running of sentences concurrently can be

passed by the High Court invoking the power under section 226 of

the Constitution of India or by exercising its inherent power under

section 482 Cr.PC. Nothing would preclude the High Court from

exercising such powers if it is found from the materials placed on

record that, the direction to undergo separate sentences

consecutively would cause serious prejudice to the accused.

8. In Benson v. State of Kerala [2016 (10) SCC 307], a

similar question was considered by the Hon'ble Supreme Court

wherein the appellant therein was convicted for the offences

punishable under section 379 IPC in several cases. After

considering all the relevant aspects and after noticing that all the

crimes were committed on the same day, the Hon'ble Supreme

Court directed that the sentence imposed in each of the said cases

should run concurrently.

9. In Iqram v. State of Uttar Pradesh [2022 (6) KLT

OnLine 1169 (SC) = 2022 SCC OnLine SC 1735], the said

question again came up for consideration in respect of a person

who was found guilty in nine cases under the Electricity Act. As

per the sentence imposed upon the petitioner, he was supposed to

undergo incarceration for a period of 18 years. After considering

the facts and circumstances of the case, the Hon'ble Supreme

Court passed an order directing that the sentences shall run

concurrently. It was observed by the Hon'ble Supreme Court in

paragraph 13 of the same in the manner as follows:

"13. Once the petitioner espoused the remedy of moving a Writ Petition under Article 226 of the Constitution, the High Court ought to have noticed the serious miscarriage of justice which would occur consequent upon the trial court not having exercised specifically its discretion within the ambit of Section 427(1). When the appellant moved the High Court, he was aggrieved by the conduct of the jail authorities in construing the direction of the trial court to mean that each of the sentences would run consecutively at the end of the term of previous sentence and conviction. The High Court ought to have intervened in the exercise of its jurisdiction by setting right the miscarriage of justice which would occur in the above manner, leaving the appellant to remain incarceration for a period of 18 years in respect of his conviction and sentence in the nine sessions trials for offences essentially under the Electricity Act."

10. In the said decision, it was categorically observed by the

Hon'ble Supreme Court that, the failure to order the running of the

sentences concurrently caused serious miscarriage of justice, and

the Apex Court being the protector of the fundamental right to life

and personal liberty of every citizen was bound to exercise its

powers to rectify the said miscarriage.

11. In Mohd Zahid v. State through NCB [2021(1)KLT SN 7

(C.No.7) SC, the Hon'ble Supreme Court framed the guidelines to

be applied while taking a decision under section 427 Cr.PC,

relevant portions of the same are as follows:

"33. Thus from the aforesaid decision of this Court, the principles of law that emerges are as under:

(i) If a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent

term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced;

(ii) ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence;

(iii) The general rule is that where there are different transactions, different crime numbers and cases have been decided by the different judgments, concurrent sentence cannot be awarded under Section 427 Cr.PC.

(iv) under Section 427(1) of Cr.PC the court has the power and discretion to issue a direction that all the subsequent sentences run concurrently with the previous sentence, however discretion has to be exercised judicially depending upon the nature of the offence or the offences committed and the facts in situation. However, there must be a specific direction or order by the court that the subsequent sentence to run concurrently with the previous sentence.".

Thus, from the principles laid down by the Hon'ble Supreme

Court, it can be seen that the general rule is that where there are

different transactions, different crime numbers and the cases have

been decided by different judgments, concurrent sentence cannot

be awarded under section 427 Cr.PC, but the court has the power

and discretion to issue a direction that all or any of the subsequent

sentences shall run concurrently with the previous sentences. It is

true that the aforesaid discretion has to be exercised judiciously,

depending upon the nature of offences and other relevant factual

situations of each case.

12. In such circumstances, the facts of this case have to be

evaluated carefully to find out whether the benefit of the

concurrent sentence is to be granted to the petitioner or not. While

carrying out such an exercise, it can be seen that, the petitioner

was found guilty of the offence under section 379 of IPC. The

aforesaid crimes were committed on different dates, but the

petitioner pleaded guilty when it came up before the court and

accordingly in all the said cases, vide the judgments which are

produced as Annexure-A series, the petitioner was found guilty

and convicted on the same day, ie. on 25.06.2018. The maximum

punishment imposed is imprisonment for three years. It is to be

noted that as per section 379 IPC, the maximum sentence to be

imposed is three years only. The petitioner is now undergoing

imprisonment since 18.01.2018 ie. for a period of five years.

Going by the statements submitted by the respondent, the

petitioner has to undergo imprisonment till 27.11.2032, if separate

sentences are to run one after the other. In the light of the

principles laid down by the Hon'ble Supreme Court in Benson's

case & Iqram's case (supra), I find that such a course taken by the

court is too harsh and is affecting the personal liberty guaranteed

under Article 21 of the Constitution of India. Since the maximum

punishment to be imposed in respect of the offence under section

379 of the IPC is only three years, compelling the petitioner to

undergo imprisonment for 16 years may not be proper unless there

are compelling reasons justifying the same and, therefore,

interference is required by this Court in the light of the principles

laid down by the Hon'ble Supreme Court.

13. Going by the statement submitted by the respondent, the

petitioner is currently undergoing imprisonment in tune with the

sentence imposed in C.C.No.1684/2018, and the release date of

the same is on 12.8.2023. The prayer sought in this Crl.M.C. is to

pass an order to run the sentences of imprisonment in C.C.Nos.

1683/2018, 1684/2018, 1685/2018, 1686/2018, 1687/2018 and

2096/2018, concurrently. As per the details furnished by the

respondent, the petitioner has to undergo imprisonment pertaining

to the sentences passed in Annexure A series judgments, till

19.11.2031, and the last sentence among them is that of

C.C.No.2096/2018. In such circumstances, taking note of the

serious prejudice that is likely to cause to the petitioner and also

considering the fact that the maximum punishment that can be

imposed under section 379 is only three years, I am inclined to

pass an order protecting the personal liberty of the petitioner. As

observed above, section 427(1) of Cr.PC empowers the court to

pass an order directing that separate sentences imposed upon the

accused shall run concurrently. In this case, after examining the

entire materials placed on record, I find that this is a fit case in

which the aforesaid discretion can be exercised in favour of the

petitioner/accused. The view I am taking in this case is fortified by

the observations made by the Hon'ble Supreme Court in Benson's

case & Iqram's case (supra) which were passed in similar

circumstances.

In the result, this Crl.M.C. is allowed. Since the petitioner

had already undergone the sentence in C.C.1683/2018, no orders

with respect to the same can be passed. At present, the sentence

passed in C.C.1684/2018 is in progress, which shall be completed

on 12.08.2023. Hence, it is ordered that, the sentences imposed

upon the petitioner in C.C.No. 1685/2018, 1686/2018, 1687/2018

and 2096/2018 shall run concurrently along with

C.C.No.1684/2018. Thus the petitioner shall be released on

12.08.2023, by treating that the petitioner had undergone the

sentences pertaining to the cases mentioned above, if his further

incarceration is not necessary in connection with any other cases.

Since the sentences passed in C.C.No 609/2018 and C.C No

293/2018 by Judicial First Class Magistrate (Temporary), Attingal

and Judicial First Class Magistrate-II, Kottarakara respectively are

not covered as per the prayer sought in this Crl.M.C, I am not

passing any orders with respect to the sentences passed in the said

cases, and it shall be open for the petitioner to invoke his legal

remedies with respect to the same. The authorities concerned

shall take necessary steps in tune with the directions issued in this

order.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk

APPENDIX OF CRL.MC 2533/2021

PETITIONER'S ANNEXURES ANNEXURE A THE TRUE COPY OF THE JUDGMENT PASSED BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHENGANNUR DATED 25.6.2018.