IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 10TH JUNE 2009 / 20TH JYAISHTA 1931 Crl.MC.No. 938 of 2009() ------------------------ AGAINST THE ORDER DATED 17/07/1996 IN CC 5/1995 IN CC.4/1994 of ENQUIRY COMMR. & SPL. JUDGE, TRIVANDRUM .................... PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------- JOSEPH THEVALAKKAT, FORMERLY DEPUTY DIRECTOR, JERSEY FARM, VITHURA, THEVALAKKAT HOUSE, RAMAPURAM BAZAAR P.O., PALAI, KOTTAYAM. BY ADV. MR.T.G.RAJENDRAN RESPONDENT(S): COMPLAINANT/STATE: -------------------------------------------------------------- 1. THE SUPERINTENDENT OF CENTRAL PRISON, TRIVANDRUM. 2. STATE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY PUBLIC PROSECUTOR MR. GIKKU JACOB THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.A.NO.1334/2009 IN CRMC.NO.938/2009 DISMISSED 10/06/2009 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No. 938 OF 2009 =========================== Dated this the 10th day of June,2009 ORDER Petitioner was convicted and sentenced for the offence under sections 5(1)(c) & (d) read with section 5(2) of Prevention of Corruption Act as well as offence under section 409, 465, 471 and 477-A of Indian Penal Code in C.C.4/1995 and 5/1995 by Special Judge, Thiruvananthapuram. The conviction was confirmed and sentence was modified in the appeal. This petition is filed under section 482 of Code of Criminal Procedure contending that as per the sentence as modified in Crl.A.525/1996 is two years rigorous imprisonment and in Crl.A.495/1996 one year rigorous imprisonment. Case of the petitioner is that as the incident in both the cases had taken place within a period of one year and petitioner could have been jointly tried for the offences in one case, the sentence should be run concurrently and invoking the inherent jurisdiction of this court under section 482 of Code of Criminal Procedure, it is to be held that the sentence in both the cases shall run concurrently. Crl.M.C.938/2009 2 2. Learned counsel has relied on the decision of this court in Subramonian v. State of Kerala (1983 KLT 452) where it is held that the power under section 482 can be invoked for giving direction to run concurrently the sentence awarded in two cases. Learned counsel would therefore argue that a direction is to be issued to run the sentences concurrently. 3. Later Division Bench of this Court in Penchil Rao v. State of Kerala (2005(4) KLT SN 53) considered this question in the light of the decision of the Apex Court and held that court is not entitled to order that the sentence shall run concurrently, by exercising the inherent powers under section 482, when the conviction was confirmed in appeal and further by the Apex Court as otherwise it would amount to review of the earlier judgment. Moreover, even if the principles accepted by this Court in Subramonian's case (supra) is to be followed, the question is whether the extra ordinary powers of this court under section 482 of the Code of Criminal Procedure is to be exercised in favour of an accused who is convicted for an offence under the Prevention of Corruption Act. I cannot agree with the submission of the learned counsel that even in such a case the extra ordinary power is to be exercised. The power Crl.M.C.938/2009 3 under section 482 is to be exercised in rare cases where interest of justice ends warrants to secure justice. If that be so, it cannot be exercised in favour of petitioner who is convicted for the offence under the Prevention of Corruption Act. Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006