Madras High Court
Kannan vs The Inspector Of Police on 23 November, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.11.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.17093 of 2018
and
Crl.MP(MD)No.7574 of 2018
Kannan : Petitioner
Vs.
The Inspector of Police,
District Crime Branch,
Trichy.
(Crime No.1 of 2000) : Respondent
Prayer: Criminal Original Petition is filed under Section 482
Cr.P.C., to direct that the sentences imposed on the petitioner by
the learned 1st Additional District Judge, PCR cases, Tiruchirappalli,
vide the judgment in Crl.A Nos.42, 43, 44 and 45 of 2008, dated
27.07.2017 to run concurrently.
For Petitioner : Mr.C.Jeganathan
M/s.Veera Associates
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
https://www.mhc.tn.gov.in/judis
2
ORDER
This petition is filed seeking for a direction to order the
sentences that has been imposed upon the petitioner by the I
Additional District Judge, (PCR), Trichy, in Crl.A Nos.42, 43, 45 of
2008, dated 27.07.2017 to run concurrently.
2.The case of the petitioner in brief:-
The petitioner was working as Assistant in Kathi and
Handloom Departments during the period 1993 to 1998 at
Karungulam Hadloom Unit and per the allegation that has been
made by the prosecution, he has stated to have misappropriated a
sum of Rs.5,86,367.35 paise. Totally, 4 accused persons have been
charge sheeted. After investigation, final report was filed before
the Judicial Magistrate, Manaparai, by splitting the charges into
four cases, namely CC Nos.327, 328, 329 and 330 of 2008. By
order, dated 17.08.2016, the petitioner was convicted and
sentenced to undergo one year RI and a fine of Rs.1,000/- was
imposed for the offence under se6ction 409 IPC. Similarly, he was
sentenced to undergo for the offence under section 477(A) IPC. It
was ordered to run concurrently. The fine amount was paid and the
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period of detention during trial was also ordered to set aside, under
section 428 of Cr.P.C. In respect of 4 cases also, very same
sentence have been imposed and against which, this petitioner
preferred 4 appeals in C.A Nos.42, 43, 44 and 45 of 2016 before
the Additional District Judge (PCR), Trichy. By judgment, dated
27.07.2017, the sentence was modified to undergo 3 months of RI
by reducing one year of RI period. But failed to order the
concurrent running of sentence period of 3 months. The appellate
court has erroneously ordered that the sentence must run
separately, this petition is filed seeking for a direction to order the
sentence to run concurrently, since all the cases have been tried
jointly and the appeals have also been heard jointly. The prayer
now sought for is perfectly legal. On that ground, this petition is
filed.
3.Heard both sides.
4.It is not in dispute that the petitioner was charged for the
offence under section 409, 477(A) r/w 39 & 109 IPC along with the
co-accused before the trial court in 4 separate cases viz., CC Nos.
327, 328, 329 and 330 of 2008. In all cases, the petitioner was
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convicted and sentenced to undergo 1 year RI for the offence 409
and Section 477(A) IPC. Against which, he has also filed separate
criminal appeals before the Additional District Judge, Trichy in
Crl.A Nos.42, 43, 44 and 45 of 2016 and that came to be modified
to reduce the RI period of one year to 3 months.
5.Now the only point arises for consideration before this
court is whether the petitioner can express any grievance or not.
So during the appeal proceedings, the only argument that has been
advanced is that the petitioner is aged about 70 years and the date
of occurrence is stated to be the year 1997-98. When the appeal
was ultimately taken up in 2009, considering the 20 years period,
age of the petitioner and the period of detention during trial
process, a modification was requested and that was accepted by
the appellate court. So that the sentence was modified to 3 months
SI and the period of detention already undergone during the period
investigation was ordered to be set aside under section 428 of
Cr.P.C. and the sentence under section 409 and 477-A IPC was
ordered to run concurrently. But as pointed by the learned counsel
appearing for the petitioner, there is no specific order by the
appellate court to the effect that the petitioner must undergo the
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sentence of 3 months that has been imposed upon him in all the
four cases must run consecutively or concurrently. There is no such
specific order. So in the absence of any such specific order by the
appellate court, now the question arises for consideration is
whether this court by exercising the jurisdiction under 482 Cr.P.C
can order to run all the sentence period concurrently in all four
cases.
6.The learned counsel appearing for the petitioner would
straightaway relied upon the judgment of this court rendered in
K.Arasan Vs. The State of Tamil Nadu [2012(6) CTC 510]
wherein the Division Bench of this court on reference made by a
civil judgment decided the issue whether this court can exercise its
jurisdiction under section 482 Cr.P.C to issue a direction under
section 427 Cr.P.C. The Hon'ble Division Bench answered the
reference to the effect that inherent power can very well be
extended to issue such a direction. So the power of this court is
now being clarified and conferred.
7.The Hon'ble Supreme court in the case of State of Punjab
Vs. Madhan Lal [(2009)5 SCC 238] has also clarified the
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position to the effect that such a power can be exercised by the
High Court. The Hon'ble Supreme Court in the case of State of
Panjab Vs. Madhan Lal [(2009)5 SCC 238] has observed as
follows:-
“16.It is to be stated that invoking the
jurisdiction under Section 482 Cr.P.C in order to
grant the relief under Section 427 Cr.P.C would
not amount to altering, varying or modifying the
findings of the trial Court or appellate Court. On
the other hand, it is always open to this Court to
exercise power under Section 482 Cr.P.C to secure
the ends of justice. It is needless to say that this
Court has to exercise its judicial discretion for
invoking the power under Section 482 Cr.P.C for
granting the relief under Section 427 Cr.P.C., on
the basis of the facts and circumstances and
gravity of the charge levelled against the accused
in each case.”
8.So, in the opinion of the Hon'ble Supreme Court, what is
required is that the ends of justice must demand such a direction.
Now the question narrows down to a single point whether under
the facts and circumstances, such a power can be exercised by this
court. For that purpose, as mentioned earlier, the facts and
circumstances of the case as well as the other mitigating
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circumstances are the criteria, which are required to be taken into
account. So as mentioned earlier, the offence had taken place in
the year 1997-98, when the petitioner was working as Assistant in
Kadhi and Handloom Cooperative Department and he was also
undergoing the detention during the pretrial period for more than 3
months ik.e., from 13.12.2000 to 09.04.2001. So he was about 70
years when the appeal was heard by the appellate court. Now five
years lapsed from the date of appeal. Now the petitioner would
have been 74 or 75 years At the advance of life, I am of the
considered view that sending back to prison to undergo consecutive
sentence will not be fair. So considering the age of the petitioner
and the period of detention that has been undergone during
pretrial process, I am of the considered view that this is the fittest
case to exercise the jurisdiction of 482 Cr.P.C to meet the ends of
justice.
9.In view of the above, this criminal original petition is
allowed, directing the sentence of 3 months imposed upon the
petitioner in Crl.A Nos.42 to 45 of 2008, dated 27.07.2017 to run
concurrently. Since concurrent order has been passed and the
period of sentence undergone is already over, the petitioner need
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not surrender before the authorities for serving out the sentences.
Consequently, connected Miscellaneous Petition is closed.
23.11.2021
Index:Yes/No
Internet:Yes/No
er
Note :
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.
https://www.mhc.tn.gov.in/judis
G.ILANGOVAN, J
er
1.The I Additional District Judge,
PCR cases,
Trichy.
2.The Inspector of Police,
District Crime Branch,
Trichy.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
Crl.OP(MD)No.17093 of 2018
23.11.2021
https://www.mhc.tn.gov.in/judis
