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2002 DIGILAW 426 (KER)

Anti @ Antony v. State of Kerala

2002-07-04

M.R.HARIHARAN NAIR

body2002
Judgment :- M.R.Hariharan Nair, J. The question posed before this court by the revision petitioner, who is the accused in C.C.No. 62/1997 of the Judicial first Class Magistrate’s Court, Irinjalakuda, is the scope and ambit of Sec. 427 of the Code of Criminal Procedure and the propriety of making the sentences suffered by him in different cases to be concurrent. The accused was charged with the offence of house breaking committed at 4.30 a.m. on 26-5-1996 into the dwelling house of P.W.1 and theft of gold chain weighing 40 grams kept under the pillow of P.W.2 and another gold chain weighing 23.930 grams worn by P.W.3. Offences under Secs. 457, 380 and 379 of the Indian Penal Code were alleged against him. He was found guilty, convinced and ultimately sentenced to undergo rigorous imprisonment for two years under Sec. 457 and rigorous imprisonment for one year under Sec. 380 of the IPC. No separate sentence was imposed under Sec. 379. The learned Magistrate added that these sentences should run consecutively. Smt. Sahana Karthikeyan, who represented the revision petition on State Brief, submitted that the learned Magistrate went wrong in making a direction that the sentences should run consecutively and that in the nature of the case they should have been made concurrent. In the revision petition the prayer of the petitioner is not merely that the two sentences imposed in the case should be made concurrent; but also that the sentences imposed on him in C.C.Nos.54/97, 65/97 and 160/97 which were cases charged by the Kodungallur Police as also in C.C.Nos. 2/97, 5/97, 7/97, 8/97 and 9/97 initiated by the Irinjalakuda Police might also be made concurrent. The learned Government Pleader submits that the prayer is absolutely untenable and that this court should not exercise its discretion in favour of a habitual offender like the revision petitioner and that the revision is hence liable to be dismissed. Two questions that arise in the case, in the circumstances, are:- (i) Whether the sentence imposed in the present case should be made concurrent with the sentences suffered in the various other cases pointed out by the revision petitioner and (ii) whether the two sentences imposed in the case itself should be made concurrent. Point No. 1:- It is Sec. 427 of the Cr.P.C. which governs the matter. It reads as follows: “427. Sentence on offender already sentenced for another offence. Point No. 1:- It is Sec. 427 of the Cr.P.C. which governs the matter. It 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 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 Sec. 22 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, 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 of 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.” In the present case, we are not concerned with the proviso to Sec.427(1) because no one has a case that the revision petitioner was ever imprisoned under Sec. 122 of the Cr.P.C. A reading of the aforesaid provision makes it clear that the normal rule is that the sentences should run consequently and what is available to the Court is only a discretion to specify otherwise. Under sub-sec. (1), the date of expiry of the first sentence that the offender undergoes shall be the starting point of the subsequence sentence and so on. Without the court’s discretion being exercised the subsequent sentence will not run concurrently. The only situation in which no direction of the court is needed to make the subsequent sentence run concurrently with the previous sentence, is the situation contemplated in Sec. 427(2) of the Cr.P.C. which is not applicable in the present case. Sooraj v. State of Kerala (1994 (1) KLJ 559) is authority for the proposition that the High Court is competent, while dealing with an appeal filed by the accused, to direct that the subsequent sentence awarded shall run concurrently with the previous awarded shall run concurrently with the previous sentence. Sooraj v. State of Kerala (1994 (1) KLJ 559) is authority for the proposition that the High Court is competent, while dealing with an appeal filed by the accused, to direct that the subsequent sentence awarded shall run concurrently with the previous awarded shall run concurrently with the previous sentence. It was further found therein that the power available to the Court under Sec. 427(1) of the Cr.P.C. is a discretionary power guided by judicial framework. The Court has to consider the totality of the sentences which the accused has to undergo if they are top run consecutively. In Mohdd. Akhtar Hussain v. Assistant Collector of Customs ((1988) 4 SCC 183), the Apex Court held that though the enormity of the crime committed by the accused is relevant for measuring the sentence, the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. It is for the Court to decide what are the relevant considerations in a particular case to be taken note of while exercising the judicial discretion available to it in the matter. Though the discretion available to the court is very wide in the matter, unprincipled exercise or unregulated benevolence may work out injustice. The discretion has to be exercised with due care and caution, lest the effect would result in injustice to the society as a whole. The aspects to be considered by the court in this regard would definitely include the facts and circumstances and the nature of the crimes committed by the accused; the sex, age, character and previous criminal record of the offender etc. The possibility of the accused returning to a normal life, the possible danger to the society if he returns to his misdeeds and persists in his criminal activities etc., are also matters to be taken note of. I shall now deal with the question whether the present accused deserves to be shown leniency in the matter as claimed by him. Pursuant to the directions of this Court, the learned Government Pleader has made available to the Court, during hearing, a report from the Central prison, Viyyur, where the petitioner is presently undergoing imprisonment (bearing date 25-6-2002) according to which the accused is presently aged 42 years. He has so far been involved in 17 different criminal cases. Pursuant to the directions of this Court, the learned Government Pleader has made available to the Court, during hearing, a report from the Central prison, Viyyur, where the petitioner is presently undergoing imprisonment (bearing date 25-6-2002) according to which the accused is presently aged 42 years. He has so far been involved in 17 different criminal cases. In one case he has already undergone the full term. The benefit of set off was extended to him in two other cases. In three cases, the conviction entered against him were set aside. There is one more case viz., C.C. No. 288/97 of the Judicial First Class Magistrate’s Court, Irinjalakuda, still pending trial against him. As per the various judgments already rendered, the total number of years he has to spend in the prison even hereafter extends to 11 years and 6 months. What is obvious is that the petitioner is a habitual offender. Making of the sentences concurrent would be to do justice neither to the accused nor to the society at large. The record of the accused shows that there is every possibility that he would continue to perpetrate similar crimes once he gets out of the prison. In these circumstances, I am of the view that this is not at all a fit case where the discretion available to the Court under Sec. 427 of the Cr.P.C. should be exercised in his favour. This finding, however, will apply only with regard to the prayer in the revision that the sentences imposed in the present case should be made concurrent with the sentence imposed in the present case should be made concurrent with the sentences in the other cases already mentioned above. As regards the two sentences imposed in the present case, I think the matter stands on a different footing. It was after house breaking that the offence of theft involved in the present case was committed. Both the transactions were simultaneous. In such circumstances, there is every reason to direct the two sentences imposed for the offence under Secs. 457 and 380 of the IPC to run concurrently. It is therefore directed that the direction contained in the impugned judgment that the sentences for the offences under Secs. 457 and 380 of the IPC should run consecutively would stand set aside and the two sentences should run concurrently. Subject to this modification, the revision is disposed of. 457 and 380 of the IPC to run concurrently. It is therefore directed that the direction contained in the impugned judgment that the sentences for the offences under Secs. 457 and 380 of the IPC should run consecutively would stand set aside and the two sentences should run concurrently. Subject to this modification, the revision is disposed of. The trial court shall issue a fresh warrant incorporating the above change in sentence.