Madras High Court
Kannan vs The Superintendent Of Prison on 7 July, 2023
Crl.O.P.No.27695 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.07.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Orders Reserved On Orders Pronounced On
30.06.2023 07.07.2023
Crl.O.P.No.27695 of 2022
Kannan ... Petitioner
Vs.
State rep. by:
1.The Superintendent of Prison,
Central Prison, Coimbatore.
2.The Superintendent of Prison,
Central Prison, Salem.
3.The Inspector of Police,
Rasipuram Police Station,
Namakkal. ... Respondents
PRAYER: Criminal Original Petition is filed under Section 482 of the Code
of Criminal Procedure, to direct the respondent to consider the
representation dated 26.10.2022 and further direct the respondents 1 and 2
to order the sentences imposed in C.C.Nos.290/2014, 291/2014 and
339/2014 on the file of the Judicial Magistrate, Rasipuram, to run
1/9
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Crl.O.P.No.27695 of 2022
concurrently to secure the ends of justice.
For Petitioner : Mr.R.Sankarasubbu
For Respondents : Mr.A.Gokulakrishnan
Additional Public Prosecutor
ORDER
This petition has been filed to consider the representation sent by the
petitioner's wife dated 26.10.2022 and to direct the respondents 1 and 2 to
order the sentence imposed in C.C.Nos.290/2014, 291/2014 and 339/2014
by the learned Judicial Magistrate, Rasipuram, to run concurrently.
2.The contention of the petitioner is that the petitioner's wife sent a
representation on 26.10.2022 to the respondents 1 and 2 stating that her
husband was charged for offences under Sections 392 and 393 of IPC, the
learned Judicial Magistrate, Rasipuram, convicted the petitioner in
C.C.Nos.290/2014, 291/2014 and 339/2014 and sentenced to three years
rigorous imprisonment by judgment dated 15.11.2021 separately in each
case but on the same day. Further, the representation sent by the petitioner's
wife is that within a span of one year i.e. 16.04.2014 to 13.06.2014 the
occurrence took place, investigation conducted by the same police, namely,
Inspector of Police, Rasipuram, the offences are one and the same under
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Crl.O.P.No.27695 of 2022
Sections 392 and 393 IPC. Thus, one charge sheet ought to have laid
following Section 219 Cr.P.C. but the Inspector of Police, Rasipuram, filed
separate charge sheet for each of the cases showing as a separate transaction
before the learned Judicial Magistrate, Rasipuram, and a single trial ought to
have been conducted, but now three judgments were rendered convicting
the petitioner and sentencing him to undergo three years rigorous
imprisonment consecutively under Section 31(2) of Cr.P.C. The occurrence
in all the three cases were within a span of one year, conviction was passed
on the same day i.e., 15.11.2021, the petitioner's husband was in prison for
over two years and in view of the same, she prayed that it is just and
necessary that these sentences to run concurrently.
3.Learned counsel appearing for the petitioner referring to the
judgments of all the three cases in C.C.Nos.290/2014, 291/2014 and
339/2014 submitted that it was brought to the notice of the Trial Court
about the pendency of three cases against the petitioner and sought benefit
under the Probation of Offenders Act. The Trial Court recorded that the
petitioner is not entitled to avail the benefit under the Probation of
Offenders Act and thereafter convicted the petitioner in all the three cases
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Crl.O.P.No.27695 of 2022
on the same day one after other. He would submit that the Lower Appellate
Court dismissed the three appeals filed by the petitioner against the
judgment of the Trial Court in C.A.Nos.116/2021, 117/2021 and 118/2021
confirming the conviction and sentence imposed by the Trial Court. The
learned counsel further referring to Section 427 Cr.P.C. submitted that
unless there is a specific order that the previous sentence to run
concurrently, subsequent sentence by the Court cannot be run concurrently
and it shall be consecutively, only in case where the previous sentence is
imprisonment for life, subsequent sentence shall run concurrently with
previous sentence. He further relied on the decision of the Apex Court in
the case of Iqram vs. The State of Uttar Pradesh and others [Crl.Appeal
No.2319 of 2022 in SLP[Crl.] No.8238 of 2022], wherein it was observed
that when there is no specific direction issued by the Trial Court under
Section 427(1) Cr.P.C., and the convict compelled to undergo subsequent
sentence concurrently, the High Court ought to have noticed serious
miscarriage of justice. Thus, in the absence of any specific order under
Section 427(1) Cr.P.C., it cannot be straight away construed the sentence to
run consecutively more so when the judgments were rendered by the Court
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Crl.O.P.No.27695 of 2022
on the same day. Hence, he prayed this Court to issue appropriate
directions.
4.Learned Additional Public Prosecutor submits that the petitioner is
a regular offender involved in the offence of Section 392 IPC. He would
submit that during investigation it was found that the petitioner involved in
three cases, on his arrest, properties were recovered and after investigation,
charge sheet filed against the petitioner in C.C.Nos.290/2014, 291/2014 and
339/2014. He would further submit that all the three cases were tried by the
learned Judicial Magistrate, Rasipuram, and on completion of trial, the Trial
Court found the petitioner guilty, convicted and sentenced him to undergo
three years rigorous imprisonment and to pay a fine of Rs.1,000/- in all the
three cases. He further submitted that the judgment in all the three cases
were rendered on the same day one after other and it is true that in the
judgments, no order under Section 427(1) Cr.P.C. has been passed. In the
absence of any specific order that the sentence to run concurrently, then, the
sentence to be construed to run consecutively. He further submitted that the
petitioner also sought for relief under the Probation of Offenders Act.
Further, the petitioner preferred an appeal in C.A.Nos.116/2021, 117/2021
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Crl.O.P.No.27695 of 2022
and 118/2021 and the Lower Appellate Court dismissed the appeals and
confirmed the judgment of the Trial Court. Learned Additional Public
Prosecutor relied upon the judgment of the Apex Court in the case of State
of Madhya Pradesh vs. Man Singh reported in [2019] 10 SCC 161 and the
decision of the Madurai Bench of this Court in the case of G.Saravanan vs.
J.Sankaranarayanan reported in 2020 [3] CTC 818.
5.Considering the submissions and on perusal of the materials, it is
seen that the petitioner is an accused in three Calender Cases in
C.C.No.290/2014, C.C.No.291/2014 and C.C.No,339/2014 and all the three
cases were tried by the learned Judicial Magistrate, Rasipuram. On
conclusion of trial, the Trial Court found the petitioner guilty, convicted and
sentenced him to undergo three years rigorous imprisonment and to pay a
fine of Rs.1,000/- in all the three cases. The judgment in all the three
cases were rendered separately one after other on the same day. It is
recorded in the judgments that the petitioner had sought benefit under the
Probation of Offenders Act which was rejected and in each judgment, the
other two cases were recorded. Thus, the Trial Court was very much aware
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Crl.O.P.No.27695 of 2022
about the pendency of the petitioner facing trial in three cases. When the
Trial Court convicting and sentencing the accused in three cases, it ought to
have followed Section 427(1) of Cr.P.C., in the absence of specific order it
cannot be construed the each of the sentence to run consecutively. The
Apex Court in a similar situation in the case of Iqram [cited supra] held that
the Trial Court having failed to exercise specifically its discretion within the
ambit of Section 427(1) of Cr.P.C. and when the same is questioned and
brought to the notice of the High Court, the High Court ought to have
intervened in exercise of its jurisdiction and to set aside the wrong notion of
the jail authorities in construing the sentence to run consecutively. In the
present case, the petitioner has been sentenced to three years rigorous
imprisonment in three cases on the same day without any reference to
Section 427(1) Cr.P.C. Now the petitioner's apprehension and grievance is
that the jail authorities may detain him to undergo the sentence
consecutively one after other, i.e. for nine years.
6.Following the judgment of the Apex Court, this Court holds that the
conviction and sentence imposed on the petitioner by the Trial Court are to
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Crl.O.P.No.27695 of 2022
run concurrently and not consecutively. The respondents 1 and 2 to release
the petitioner after he serves the sentence of three years, unless he is not
required in connection with any other case.
7.The Criminal Original Petition is allowed accordingly.
07.07.2023
Index : Yes/No
Internet: Yes/No
Neutral Citation: Yes/No
cse
To
1.The Superintendent of Prison,
Central Prison, Coimbatore.
2.The Superintendent of Prison,
Central Prison, Salem.
3.The Inspector of Police,
Rasipuram Police Station,
Namakkal.
4.The Public Prosecutor,
High Court, Madras.
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Crl.O.P.No.27695 of 2022
M.NIRMAL KUMAR, J.
cse/smn2
Pre-delivery order made in
Crl.O.P.No.27695 of 2022
07.07.2023
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