Sundaram @ Vellian v. Secretary, State of Tamilnadu
2014-01-09
P.N.PRAKASH, S.RAJESWARAN
body2014
DigiLaw.ai
JUDGMENT P.N. Prakash, J. 1. The petitioner / detenu herein has moved the extraordinary original Habeas Corpus jurisdiction of this Court to direct the two life sentences imposed upon him in SC.No.50/1994 and SC.No.175/1997 to run concurrently. 2. The petitioner was tried in SC.No.50/1994 by the learned Principal District Judge, Tiruvannamalai and was convicted for offences u/s.457[2], 398, 302 read with 34 IPC and was sentenced to undergo 5 years rigorous imprisonment; 7 years rigorous imprisonment and imprisonment for life respectively, on 11.01.1996. The smaller sentences were directed to run concurrently with life imprisonment in terms of section 31 Cr.P.C. The appeal preferred by the petitioner [detenu] before this Court in Crl.A.No.142/1996 came to be dismissed on 23.09.2002, thereby the conviction and sentence imposed upon him by the trial court was confirmed by this Court. 3. The petitioner was also tried in SC.No.175/1997 by the learned I Additional Sessions Judge cum Chief Judicial Magistrate, Salem, for offences u/s.302, 457, 494 read with 34, 397, 392 read with 34 IPC. After due trial, the petitioner was convicted and sentenced by the learned Judge as follows:- Sl.No. Conviction under section Sentence Awarded 1 302 IPC To undergo life imprisonment and to pay a fine of Rs.2000/-, in default, to undergo 3 months RI 2 457 IPC To undergo 2 years RI and to pay a fine of Rs.1000/-, in default, to undergo 2 months RI 3 394 read with 34 IPC and 397 IPC To undergo 7 years RI and to pay a fine of Rs.2000/-, in default, to undergo 3 months RI 4 392 read with 34 IPC To undergo 2 years RI and to pay a fine of Rs.1000/- and in default, to undergo 2 months RI The petitioner’s appeal in CA.No.1143/2000 before this Court against the judgment in SC.No.175/1997 was also dismissed on 06.08.2002, thereby the conviction and sentence imposed upon him by the trial court was confirmed. In short, the petitioner has been sentenced to undergo two life imprisonments in two different cases by two different trial courts. 4.
In short, the petitioner has been sentenced to undergo two life imprisonments in two different cases by two different trial courts. 4. It is the grievance of the petitioner [detenu] that the two life sentences should have been directed to run concurrently in terms of Section 427[2] Cr.P.C. It appears from the records that this petitioner had made a similar request by filing an application by invoking the jurisdiction of this Court u/s.482 Cr.P.C., in Crl.MP.No.170/2009 in Crl.A.No.142/1996, before this Court, which came to be dismissed on 15.03.2010. This Court had relied upon the judgment of the Hon’ble Apex Court in M.R.KUDUVA Vs. STATE OF ANDHRA PRADESH [2007 [1] SCC [Crl.] 648] and had dismissed the prayer on the ground that this plea should have been taken only before the trial court and cannot be taken up by way of a petition u/s.482 Cr.P.C. It may be relevant to state here that a Three Judge Bench of the Hon'ble Apex Court in STATE OF PUNJAB Vs. MADHANLAL [ 2009 (5) SCC 238 ] has refused to interfere with an order of Punjab and Haryana High Court passed under Section 482 Cr.P.C., whereby the sentences were directed to run concurrently under Section 427 Cr.P.C., in a matter relating to an accused who was convicted and sentenced for offences under Section 138 of the Negotiable Instruments Act in three different cases. The conflicting views between the judgment in Kuduva's case [which is by a two Judge Bench] and Madhanlal's case [which is by a three Judge Bench] was considered by a Division Bench of this Court in K.ARASAN Vs. STATE OF TAMIL NADU [ 2012 (6) CTC 510 ] and this Court held that a prisoner can invoke the jurisdiction of this Court under Section 482 Cr.P.C. in a case where both the trial Court and the First Appellate Court or the Revision Court, as the case may be, had failed to give the benefits under Section 427(1) Cr.P.C. in the judgment.
Had, either the trial Court, appellate Court or revisional Court, consciously applied its mind under Section 427(1) Cr.P.C. and denied the benefits to a prisoner, then the prisoner cannot invoke Section 482 Cr.P.C. to once again review that portion in the judgment, for, that would be a bar under Section 362 Cr.P.C. This Court further held that, while granting the discretionary relief, the Court should bear in mind the gravity of the charge levelled against the accused in each case. In the present case, Section 427(1) Cr.P.C. will have no application and therefore, neither Kuduva's case nor Madhanlal's case will have any bearing. In the facts of this case, Section 427(2) Cr.P.C. will apply. Section 427(2) Cr.P.C. reads as under: "427. Sentence on offender already sentenced for another offence:- [1]....... [2] When person already undergoing a sentence of imprisonment for 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." This Section, in no uncertain terms shows that a prisoner will be entitled to have two life sentences, imposed on him in different cases, to run concurrently. This provision stands to commonsense and logic. There is a subtle distinction between section 427[1] and 427[2] Cr.P.C. Under section 427[1] Cr.P.C., if the life sentence is awarded to a prisoner already undergoing a lesser sentence, then the subsequent life sentence will start running only after the expiry of the lesser sentence unless directed by the Court otherwise. Under section 427[2] Cr.P.C., if the life sentence or lesser sentence is awarded to a person who is already undergoing life sentence, then the subsequent sentence, be it life or lesser, shall run concurrently with the earlier life sentence. In Gopal Vinayak Gotse v. State of Maharashtra [AIR (1961) SC 600] the Constitution Bench of the Supreme Court held that a sentence for imprisonment for life means imprisonment for the whole of the remaining period of the convicted person's natural life. The concept of consecutive running of two or more life sentences has received judicial imprimatur at the hands of the Supreme Court of India in KAMALANANDA AND OTHERS Vs. STATE OF TAMIL NADU [ AIR 2005 SC 2132 ], where the consecutive life sentences awarded on the accused by the trial court was confirmed by this Court in appeal as well by the Apex Court.
STATE OF TAMIL NADU [ AIR 2005 SC 2132 ], where the consecutive life sentences awarded on the accused by the trial court was confirmed by this Court in appeal as well by the Apex Court. That was a case where, in the same trial the accused therein were charged for various offences like sections 376 and 302 IPC and were awarded life imprisonment, which were directed to run consecutively under section 31 Cr.P.C. In this case, the prisoner herein, was awarded life imprisonment by two different Courts in two different cases and therefore, section 31 Cr.P.C. will not apply. 5. Section 427(2) Cr.P.C. is a direction to the prison authorities to treat two life imprisonments as concurrent and there is no scope for Court's charity here, because it is a legislative guarantee. The Courts cannot take away this right nor the jail authorities deny the prisoner this right. It is manifestly clear that the prisoner need not have to invoke any jurisdiction, be it under Section 482 Cr.P.C. or under Article 226 of the Constitution of India, and cringe for mercy to have two life sentences run concurrently. Unfortunately in this case, the prisoner filed application in M.P.No.170/2009 in Crl.A.No.142/1996 without understanding the scope of Section 427[2] Cr.P.C., and obtained negative order from this Court on 15.03.2010. One can understand that the detenu may not be conversant with the nuances of law. Ignorantia juris non excusat [Ignorance of law is not an excuse] applies rigorously to the learned than to the lay. Even the prison authorities, who would have otherwise given the benefits of Section 427(2) Cr.P.C. automatically, will now remain hands tied and will be wondering as to when and where the prisoner will be undergoing the second life sentence after completing the first stint. 6. We ask this question to ourselves as to how we can now cut the Gordian knot to release the prisoner from this legal mess?
6. We ask this question to ourselves as to how we can now cut the Gordian knot to release the prisoner from this legal mess? In our opinion, the order dated 15.03.2010 passed by this Court in M.P.No.170/2009 in Crl.A.No.142/1996 is per incuriam, because it has ignored the mandates of Section 427(2) Cr.P.C. and had relied upon the Apex Court judgment in Kuduva's case, which was one under Section 427(1) Cr.P.C. In A.R.Antulay vs. R.S.Nayak and another reported in [ (1988) 2 SCC 602 ] the Constitution Bench of the Supreme Court explained the concept in the following words: "'Per incuriam' are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong." 7. The maxim Actus Curiae Neminem Gravabit [An act of the Court shall prejudice no man] will surely come to our rescue in this case. Section 362 Cr.P.C. will not hinder us, because we are not in any way altering the substantive portion of the trial Court judgment or the appellate Court judgment that imposed the second life sentence on the prisoner. Sitting in the HCP jurisdiction, we have as our hand tool Article 226 of the Constitution of India with which we propose to do justice to the prisoner by simply saying that he will be entitled to the benefits of Section 427(2) Cr.P.C. We are not conferring any new benefit on him and we are only re-stating the legal position in order to dispel confusion in the minds of the prison authorities on account of the order dated 15.03.2010 passed by this Court. 8. To sum up we hold that the prisoner will be entitled to the benefits of Section 427(2) Cr.P.C. and the two life sentences suffered by him will have to run concurrently in terms of Section 427(2) Cr.P.C. This Habeas Corpus Petition is disposed of accordingly.