Kerala High Court
Selvaraj vs State Of Kerala on 21 May, 2024
CRL.A No.207/2021 1/8
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
Tuesday, the 21st day of May 2024 / 31st Vaisakha, 1946
CRL.M.APPL.NO.1/2024 IN CRL.A NO.207 OF 2021
SC NO.541/2017 OF THE ADDITIONAL SESSIONS COURT-II (SPECIAL), KOTTAYAM
APPLICANTS/APPELLANTS:
1. SELVARAJ, AGED 57 YEARS, S/O RAMAN, BEHIND RAJA HIGH SCHOOL,
SIVAGANGA POLICE STATION LIMIT, SIVAGANGA DISTRICT, TAMIL NADU
STATE.
2. RAJKUMAR, AGED 26 YEARS, S/O RAJ, MADEENA NAGAR, KAMMA BHAGOM,
CHICKAL, RAMANADU DISTRICT, TAMIL NADU STATE.
RESPONDENT/RESPONDENT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM-682 031.
Application praying that in the circumstances stated therein the
High Court be pleased to invoke power under section 427 of Criminal
Procedure Code in Crl.Appeal No.207/2021 and order the sentence comfirmed
in the appeal shall run concurrently with the punishment confirmed by this
Hon'ble court in Crl.Appeal No.464/2021, interest of justice.
This Application coming on for orders upon perusing the application
and this court's Judgment dated 23.02.2024 in Crl.Appeal No.207/2021 and
upon hearing the arguments of M/S.P.MOHAMED SABAH, SAIPOOJA, Advocates for
the petitioners and of the PUBLIC PROSECUTOR for the respondent, the court
passed the following:
P.T.O.
CRL.A No.207/2021 2/8
P.G. AJITHKUMAR, J.
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Crl.M.A.No.1 of 2024
in
Crl.Appeal No.207 of 2021
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Dated this the 21st day of May, 2024
ORDER
Appellants have filed this petition under Section 427 of
the Code of Criminal Procedure, 1973. He seeks an order
directing to run the sentence imposed in this case
concurrently with the sentence imposed on the petitioner in
Crl.A.No. 464 of 2021.
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor.
3. Petitioners were the accused in Sessions Case No.541
of 2017 of the Additional Sessions Court (Special Court-II),
Kottayam. They were convicted for the offences punishable
under Sections 450, 325, 394 and 397 read with Section 34 of
the Indian Penal Code, 1860(IPC). The period of sentence
imposed on the appellants for the offence under Section 397
of the Indian Penal Code was 7 years; the lesser terms of
sentence imposed for the other offences have to run
concurrently. The appeal they have filed as Crl.A.No. 207 of
Crl.M.A.No.1 of 2024 in
2021 was disposed of by judgment dated 23.02.2024.
Conviction and sentence were confirmed except for reducing
the amount of fine.
4. The petitioners were also the accused in Sessions
Case No.542 of 2017 before the Additional Sessions Court-II,
Kottayam. As per the judgment dated 15.10.2019, they were
convicted in that case of the offence punishable under Section
450 and 394 of the IPC. They were sentenced to undergo
imprisonment for a period of 5 years each. The terms of the
sentence were directed to run concurrently.
5. The petitioners now seek to direct the sentences
imposed in both those cases to run concurrently by virtue of
the provisions under Section 427 of the code. The learned
counsel for the petitioner invited my attention to the
judgment of this Court in Crl.Appeal No.1040 of 2018 and
1302 of 2018. In both those cases, this Court ordered
punishments imposed in two different cases to run
concurrently.
6. The appellant in Crl.A. No. 1040 of 2018, was
Crl.M.A.No.1 of 2024 in
convicted in two sessions cases namely S.C.No.700 of 2016
an 701 of 2016. The prosecutions were for committing
penetrative sexual assault on two girl children who are
siblings. In sessions case No.700 of 2016 the sentence was to
undergo imprisonment for life. The accused is the father.
Taking those aspects into account, especially, that the
punishment in one of the cases was imprisonment for life, this
Court applied the provisions of Secion 427 of the Code and
directed to run the sentences imposed in Sessions Case
No.700 of 2016 and 701 of 2016 which was confirmed in
Crl.Appeal No.1040 of 2018 concurrently.
7. In Crl.Appeal No.1302 of 2018, the accused was
convicted and sentenced for an offence of rape and cognate
offences. He was also convicted and sentenced for a similar
offence in Crl.Appeal No.677 of 2019. This Court taking into
account the fact that the victim in both the cases was the
same person, ordered punishments imposed in both the cases
to run concurrently.
8. Here, Sessions Case No.542 of 2017, on which
Crl.M.A.No.1 of 2024 in
Crl.Appeal No.464 of 2021 arose, relates to an offence of
house breaking and robbery committed at 12.15 a.m on
06.06.2017. Sessions Case No.541 of 2017, on which Crl.
Appeal No. 207 of 2021 arose, relates to an offence of
housebreaking and robbery committed at 12.45 a.m on
06.06.2017. The victims of offence and places of occurence
are totally different. In otherwards the offences are totally
distinct.
9. In V.K. Bansal v. State of Haryana and
another[(2013) 7 SCC 211], it was held that though it is
manifest from Section 427(1), that the Court has the power
and discretion to issue a direction that a subsequent sentence
shall run concurrently with the previous sentences, the very
nature of the power so conferred, predicates that the
discretion, would have to be exercised along judicial lines or
not in a mechanical or pedantic manner. It was underlined
that there is no cut and dried formula for the court to follow,
in the exercise of such power and that the justifiability or
otherwise of the same, would depend on the nature of the
Crl.M.A.No.1 of 2024 in
offence or offences committed and the attendant facts and
circumstances. It was however postulated, that the legal
position favours the exercise of the discretion to the benefit of
the prisoners in cases where the prosecution is based on a
single transaction, no matter even if different complaints in
relation thereto might have been filed. The caveat as well was
that such a concession cannot be extended to transactions
which are distinctly different, separate and independent of
each other and amongst others where the parties are not the
same. This principle was reiterated by the Apex Court in
Shyam Pal v. Dayawati Besoya and another [(2016) 10
SCC 761].
10. The imperative that the cases should relate to a
single transaction for enabling the court to direct the
subsequent sentence to run concurrently with the previous
one was thus underscored. It was expounded as well that the
direction for concurrent running of sentences would be limited
to the substantive sentence alone.
11. In view of the law laid down in the aforesaid
Crl.M.A.No.1 of 2024 in
decisions, benefit of Section 427 of the Code can be extended
to a prisoner ordinarily where the prosecutions are based on a
single transaction. Where the prosecutions are regarding
distinct and independent transactions, the concession under
Section 427 of the Code cannot be extended to a prisoner. The
transactions involved in Crl. Appeal No.207 of 2021 and
Crl.Appeal No.464 of 2021 are totally different and distinct.
True, the same persons committed similar offences on the
same day. But when such serious offences were committed
against different victims at different places, the offences
become totally distinct. The petitioners are therefore not
entitled to get the benefit of Section 427 of the Code.
This petition is accordingly dismissed.
Sd/-
P.G. AJITHKUMAR, JUDGE
PV
21-05-2024 /True Copy/ Assistant Registrar
Annexure A1 TRUE COPY OF THE JUDGMENT DATED 16.03.2023 IN CRL.
21-05-2024 /True Copy/ Assistant Registrar
