IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 Crl.Rev.Pet.No. 3549 of 2007() ------------------------------ CRA.(JAIL APPEAL)14/2007 of SESSIONS COURT, THRISSUR CC.212/2002 of CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR .................... REVN. PETITIONER(S)/APPELLANT//ACCUSED -------------------------------------------------------------------- AYYAPPAN, C.NO.1455, CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. SRI.SAJEEV.T.P. RESPONDENT(S): RESPONDENT/COMPLAINAT ------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.3549 of 2007 -------------------------------------- Dated this the 4th day of August, 2009. ORDER This revision arises from judgment of learned Sessions Judge, Thrissur in Crl.Appeal (Jail Appeal) No.14 of 2007 confirming conviction and sentence of petitioner in C.C.No.212 of 2002 of the court of learned Chief Judicial Magistrate, Thrissur. Petitioner faced trial for offences punishable under Sections 457, 461 and 380 of the Indian Penal Code (for short, “the IPC”). Case is that on 11.11.1998 at about 7.30 p.m. petitioner committed lurking house trespass in the house of PW1, opened the almirah and committed theft of gold ornaments and other articles. PW1 has given evidence that he locked the house and went for duty on the previous day at 7 p.m. and came back by 8 p.m. the next day. He found the lock of front door broken, steel almirah remaining open and articles lying scattered on the floor. Gold ornaments and other articles were stolen. He identified those articles as MOs 1 to 7. PW6, Circle Inspector claimed to have arrested petitioner on 30.3.1999 at about 4.45 p.m. in Crime No.52 of 1999. Petitioner was questioned and on the information given by him MO1 series were seized from the rented house of petitioner as per Ext.P2, the mahazar. Ext.P5 is the statement of petitioner which led to the discovery. PW3 is an attestor in Ext.P2, mahazar. He did not support the prosecution though admitted signing Ext.P2. PW4, Circle Inspector recorded the statement of PW1 and registered the case. PW5, Head Constable investigated the case. Crl.R.P.No.3549/2007 2 Petitioner gave evidence as DW1 and stated that he is residing with his sister in a rented house. He claimed that he had purchased MOs 1 and 2, ornaments for his sister. He had shown the cash bill for MOs 1 and 2 to the Circle Inspector. But the Circle Inspector destroyed the cash bill. He further claimed that MO7, video cassette of marriage of PW1 was falsely introduced in the case. It is contended that conviction of petitioner is not legal or proper. 2. The seizure of MOs 1 and 2 from the rented premises occupied by petitioner is not in dispute and stated by DW1 also. The seizure of MOs 3 to 7 as per Ext.P2 from the very same premises is proved by evidence of PW6. Petitioner is claiming ownership of MOs 1 and 2. Therefore it is certain that MOs 1 and 2 were in his possession at the time of seizure as per Ext.P2. There is no evidence to show apart from the evidence of DW1 that MOs 1 and 2 belonged to him (petitioner). Courts below were not inclined to accept evidence of DW1. In these circumstances courts below found petitioner guilty. I find no reason to interfere with that finding. 3. Petitioner is sentenced to undergo rigorous imprisonment for one year for offence punishable under Section 461, two years for offence punishable under Section 457 and three years for offence punishable under Section 380 of the IPC. Petitioner is undergoing imprisonment. It is seen from the details submitted by the Superintendent of Central Prison, Thiruvananthapuram that petitioner is undergoing imprisonment in several cases. Having regard to the facts and circumstances of the case I am inclined to think that sentence awarded Crl.R.P.No.3549/2007 3 for offence punishable under Sections 457 and 380 of the IPC can be modified as rigorous imprisonment for one and a half years each. There is however no reason to interfere with the sentence awarded for offence punishable under Section 461 of the IPC. 4. Learned counsel submitted that altogether petitioner has been convicted and sentenced in twenty cases and that since there is no direction to run the sentence awarded in those cases concurrently, it is to run consecutively in view of Section 427 of the Code of Criminal Procedure (for short, “the Code”). According to the learned counsel, petitioner will have to be in prison for a number of years on account of that. Learned counsel requested that sentences may be directed to run concurrently. Learned counsel has placed reliance on the decision of the Supreme Court in Ammavasai v. Inspector of Police, Valliyanur [(2009) 9 SCC 749]. 5. Going by Section 427 of the Code, when there is a sentence of imprisonment in separate cases, unless there is specific direction otherwise such sentence shall run consecutively. As pointed out by counsel no such direction has been issued in the cases in which petitioner has been sentenced to undergo imprisonment. Necessarily therefore sentence has to run consecutively. Now the question is whether in this case this Court can issue a Crl.R.P.No.3549/2007 4 direction that the sentences awarded in all other cases shall run concurrently. According to learned counsel, in the decision referred supra Supreme Court has issued such a direction. 6. The power which this Court can exercise is under Section 482 of the Code. But that provision cannot be used against an express bar as held by the Supreme Court in Madhu Limaye v. State of Maharashtra (AIR 1978 SC 47). A Bench consisting of three Judges held that the power under Section 482 of the Code cannot be exercised as against an express bar of law engrafted in any other provisions of the Code. Section 362 of the Code engrafts an express bar against reviewing or altering a judgment or final order except to correct a clerical or arithmetical error. In this case, it cannot be said that the failure of the courts to direct that the sentence shall run concurrently is a clerical or arithmetical error. There is no challenge to the concluded sentences in those cases. Therefore invoking Section 482 of the Code those concluded sentences cannot be reopened in this revision which arises only from one case. That is the view taken by this Court after referring to all the relevant decisions on the point in Sukumaran v. State of Kerala (2008 (1) KLT 732). As such the request of petitioner cannot be allowed. 7. So far as this case is concerned, it is within the power of this Court to direct that the sentence awarded in this case will run concurrently with any of the cases in which petitioner is undergoing imprisonment. Crl.R.P.No.3549/2007 5 Resultantly, this revision petition is allowed in part to the following extent: i. Sentence awarded to the petitioner for offences punishable under Sections 457 and 380 of the IPC is modified as rigorous imprisonment for one and a half years each. ii. It is directed that sentence awarded in this case shall among themselves run concurrently. ii. It is further directed that sentence awarded in this case shall run concurrently with the sentence awarded to the petitioner in C.C.No.337 of 1999 of the court of learned Judicial First Class Magistrate, Irinjalakuda. In all other respects revision petition will stand dismissed. THOMAS P.JOSEPH, Judge. cks