Madras High Court
Maruthupandian vs The Superintendant Of Police on 29 January, 2021
Crl.O.P.(MD)No.13487 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.01.2021
CORAM :
THE HONOURABLE Mrs. JUSTICE R. HEMALATHA
Crl.O.P.(MD)No.13487 of 2020
Maruthupandian ... Petitioner
Vs.
1.The Superintendant of Police
Central Prison,
Madurai.
2.The Inspector of Police,
Bodi Town Police Station,
Theni District.
Crime Nos.641/2015 & 938/2016 ... Respondents
Prayer : Criminal Original Petition filed under Section 482 of Code of
Criminal Procedure, to order the sentence to run concurrently passed in
C.C.No.18 of 2016 and C.C.No.29 of 2017 dated 07.01.2019 by the learned
Judicial Magistrate, Bodinayakkanur, against the petitioner.
For Petitioner : Mr.M.Jerin Mathew
For Respondents : Mr.A.Robinson,
Government Advocate (Criminal side)
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Crl.O.P.(MD)No.13487 of 2020
ORDER
The petitioner has filed the present petition under Section 482
of the Code of Criminal Procedure, seeking to order the sentence of
imprisonment imposed on him to run concurrently in C.C.Nos.18 of 2016
and 29 of 2017 dated 07.01.2019 by the learned Judicial Magistrate,
Bodinayakkanur.
2.The main grievance of the petitioner is that the Judicial
Magistrate, Bodinayakkanur, though pronounced judgments in
C.C.Nos.18 of 2016 and 29 of 2017 on the same day ie., 07.01.2019, did not
pass any specific orders as to whether the sentences imposed in both the
cases would run concurrently or consecutively.
3.The learned counsel for the petitioner drew the attention of
this Court to the decision of the Single Bench of this Court in Crl.OP(MD)
No.14056 of 2019 dated 12.05.2020 and would submit that since the order
of the Judicial Magistrate, Bodinayakkanur is silent on the aspect that
whether the sentences imposed in both the cases would run concurrently or
consecutively, an order can be passed by this Court to make both the
sentence to run concurrently.
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Crl.O.P.(MD)No.13487 of 2020
4.Mr.A.Robinson, learned Government Advocate (Criminal
side) who accepts notice on behalf of the respondents, did not raise any
serious objections.
5. A Single Bench of this Court in Crl.OP(MD) No.14056 of
2019 has held that,
"12.Thus, for Section 427 (1) of Cr.Pc 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.PC 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.
13.The expression “undergoing” is also found
in Section 426 of Cr.PC dealing with sentence on
escaped convict. Only a person undergoing
sentence in a prison can escape and that would be an
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Crl.O.P.(MD)No.13487 of 2020
independent offence by itself. Section 428 of
Cr.Pc is about setting off the period of detention
already undergone by the accused against the
sentence of imprisonment.
14.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.
15.In case on hand both the judgments of
conviction and sentence were handed out on the
same day. When the second judgment of conviction
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Crl.O.P.(MD)No.13487 of 2020
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, this Court has to necessarily hold 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.
16.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. I make it
clear that I am not for a moment giving a direction
that the sentences will run concurrently. Even
without a specific direction that would be the result.
Thus, by giving relief to the petitioner I am in no
way transgressing the mandate set out in Section
362 of Cr.PC."
6. In the instant case, a perusal of the sentence of imprisonment
passed by the learned Judicial Magistrate, Bodinayakkanur, in both the
cases in C.C.Nos.18 of 2016 and 29 of 2017 on 07.01.2019, would show
that the learned Judicial Magistrate, did not pass any specific order, as to
whether the sentences have to run concurrently or consecutively. In the
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Crl.O.P.(MD)No.13487 of 2020
absence of the same and in view of the decision cited supra, both the
sentences have to run concurrently.
7.In the circumstances, the Criminal Original Petition is
allowed.
29.01.2021
Index : Yes/No
Internet:Yes/No
rm
Note : 1.Issue order copy on 02.02.2021
2.In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.The Superintendant of Police
Central Prison,
Madurai.
2.The Inspector of Police,
Bodi Town Police Station,
Theni District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.13487 of 2020
R. HEMALATHA, J.,
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Crl.O.P.(MD)No.13487 of 2020
29.01.2021
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