IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.03.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN Crl.O.P.No.1309 of 2010 A.Palanisamy @ Kaithan .... Petitioner Vs. 1.The Inspector of Police B1, Police Station Kadaiveethi, Coimbatore(Crime No.2121/97) 2.The Inspector of Police Veriety Hall Police Station Coimbatore (Crime No.341/2000) 3.The Inspector General of Prisons Chennai ..... Respondents Prayer : Criminal Original Petition filed under Section 427 r/w 482 of the Code of Criminal Procedure, to direct the sentence of seven years R.I. in C.A.No.484 of 2002 in S.C.No.186 of 2001, on the file of the learned Principal Sessions Judge, Coimbatore to run concurrently with the sentence of 10 years R.I. in C.A.No.99 of 2000 in S.C.No.120 of 1999, on the file of the Principal Sessions Judge, Coimbatore. For Petitioner : Mr.R.John Sathiyan for Mr.S.Suresh For Respondents : Mr.R.Muniyapparaj Govt.Advocate (Crl.side) ***** O R D E R Invoking the inherent jurisdiction of this Court under Section 482 of Cr.P.C. the petitioner has preferred this petition to direct the sentence of seven years of rigorous imprisonment imposed on him in C.A.No.484 of 2002 in S.C.No.186 of 2001, on the file of the learned Principal Sessions Court, Coimbatore to run concurrently with the sentence of ten years of rigorous imprisonment imposed on him in C.A.No.99 of 2000 in S.C.No.120 of 1989 on the file of the Sessions Court, Coimbatore. 2.The petitioner had been facing the trial in two sessions cases viz. S.C.No.120 of 1999 and 186 of 2001, for the offence under Section 302 of I.P.C. respectively, on the file of the learned Principal Sessions Court, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 3.In the Sessions Case No.120 of 1999, after the completion of trial, he was found guilty under Section 304(i) of I.P.C. convicted thereunder and sentenced to suffer ten years of rigorous imprisonment on 30.07.1999. Challenging the order of conviction, he had preferred an appeal in C.A.No.99 of 2000 along with a petition for suspension of sentence. 4.While admitting the appeal, the sentence was also ordered to be suspended. On final hearing, the appeal in C.A.No.999 of 2000 was dismissed on 25.10.2002, after confirming the conviction and sentence imposed on the petitioner by the trial Court. 5.While he was on suspension of sentence in appeal in C.A.No.99 of 2000, he was charged for an offence under Section 302 of I.P.C. in connection with the case in Crime No.341 of 2000, on the file of the second respondent herein. In the meantime, the trial proceedings were initiated in S.C.No.186 of 2001 in respect of the case in Crime No.341 of 2000, on the file of the learned Principal Sessions Court, Coimbatore and on completion of trial, the petitioner was found guilty under Section 302 I.P.C. convicted thereunder on 10.10.2001 and sentenced to suffer life imprisonment. Challenging the order of conviction, the petitioner had also filed an appeal before this Court in C.A.No.484 of 2002 and on final hearing the petitioner was found guilty under Section 304(i) I.P.C. instead of 302 I.P.C. and sentenced to suffer seven years of rigorous imprisonment by the Judgment dated 28.10.2004. 6.Under this background, the petitioner has comeforward with this petition under Section 427 r/w 482 Cr.P.C. 7.Heard bothsides. 8.Mr.R.John Sathiyan, learned counsel appearing for the petitioner has submitted that the petitioner has been in incarceration for nearly about ten years and that he is having family and children and he has to feed their family by doing coolie work. Since he has been languishing in prison for about ten years, his family has been suffering without the presence of sole breadwinner. He has also maintained that the petitioner has also felt remorse and willing to join with the main stream of the society and therefore he has urged that both the sentences, which were imposed on the petitioner might be ordered to run concurrently. 9.In support of his arguments, the learned counsel has placed reliance upon the following decisions: i. Lakshmi @ Mookkayee @ Marudayee vs. Inspector General of Prisons, reported in 1996-2-L.W.(Crl.)716, ii.K.Arunachalam vs. State, etc. & Others, reported in 2001-1-L.W.(Crl.)439, https://hcservices.ecourts.gov.in/hcservices/ Further, he has also placed reliance upon two unreported Judgments of this Court in C.A.Nos.99 of 2000 and 484 of 2002. 10.In the case of Lakshmi @ Mookkayee @ Marudayee vs. Inspector General of Prisons, reported in 1996-2-L.W.(Crl.)716, a question was arisen before this Court as to whether the High Court under Section 482 Cr.P.C. is competent to direct the sentences to run concurrently when the convictions and sentences have been passed by two Sessions Court. The petitioner was convicted by the Assistant Sessions Judge at Vridhachalam for an offence under Section 395 I.P.C. for a period of three years on 07.12.1982 in S.C.No.170 of 1982. While undergoing the sentence, the petitioner was convicted by the learned District and Sessions Judge at Trichirappalli to undergo imprisonment for life for an offence under Section 302 I.P.C. in C.C.No.65 of 1982 on 31.03.1983. It was the case of the petitioner that she had been languishing in prison for last 12 years and that the learned District and Sessions Judge did not direct the sentences to run concurrently. 11.Under the above circumstances, the petitioner therein had comeforward with that petition under Section 482 and 427(i) Cr.P.C. to direct the sentence passed in S.C.No.65 of 1982, dated 31.03.2003 to run concurrently with the remaining sentence awarded in S.C.No.170 of 1982, dated 07.12.1982. 12.while advancing arguments in the above cited case, the following four cases were placed reliance upon by the learned counsel appearing for the petitioner therein: i. Mohammed Giasuddin v. State of A.P. (1977 (3) SCC 287 at P.289) : (1977 Crl.L.J.1557 at P.1559), ii. Shivaprasad v. State of Kerala (1969) Ker.L.T.862), iii.Ram Narain v. State of U.P. (1973-2 SCC 86 at P.91) : (1973 Crl.L.J. 1187 at P.1190), iv. Mohemed Akhta Hussain v. Assistant Collector of Customs (1988 4 SCC 183) : (1989 Cr.L.J.283), After hearing bothsides, the learned single Judge of this Court has held that the concensus of judicial opinion of different High Courts seems to be that inherent powers of the High Court can be invoked under Section 482 Cr.P.C., even if the trial Court or Appellate or Revisional Court has not exercised its discretion under 427(1) of the Code. The inherent power of the High Court is not in any way fettered by the provisions of Section 427(1) of the Code. It is also observed that it is equally well-established that the inherent power is to be exercised to do right and undo a wrong in the course of administration of justice and this power ought to be exercised https://hcservices.ecourts.gov.in/hcservices/ sparingly only when the court feels that the ends of justice requires it and not as a matter of routine. Exercise of discretion depends on the facts and circumstances of each case. The nature or character of the offences committed, the prior criminal record of the offender, age, sex, family background, interest of the dependents and urge to reform, are factors to be taken into consideration. 13.The learned single Judge has also observed that the punishment should not be retaliatory but reformatory, that too when the petitioner seeks for a chance to return to the mainstream of life, giving a direction to run the sentences concurrently, it would be providing a chance to make effort to adopt herself to the society in a meaningful and a new possible manner. Eventually, the sentence passed in S.C.No.65 of 1982 on 31.03.1983 was directed to run concurrently with the remaining sentence awarded in S.C.No.170 of 1982 on 07.12.1982. 14.In the case of K.Arunachalam vs. State, etc. & Others, reported in 2001-1-L.W.(Crl.)439, a petition was filed to serve the sentence concurrently passed in S.C.No.37 of 1986, on the file of the learned VI Additional Sessions Judge, Madras Division, Madras, dated 22.09.1986 with the sentence imposed in S.C.No.56 of 1988 on the file of the learned VIII Additional Sessions Judge, Madras by its Judgment dated 23.08.1988. 15.In this case, the petitioner was previously sentenced to undergo imprisonment for five years. While undergoing such imprisonment, he was also sentenced to undergo imprisonment for life for an offence of murder. Under this circumstance, the petitioner had filed a petition before this Court under Section 482 and 427(1) Cr.P.C. to direct these two sentences to run concurrently. The learned Judge of this Court after hearing both sides has observed that in so far as the imprisonment for life is concerned the moment sentence is passed, the sentence starts running. The starting of life imprisonment cannot be postponed after the expiry of the first term of imprisonment to which the petitioner was sentenced for a different offence. Therefore, the earlier sentence has to necessarily merge with the latter sentence. In case, both the cases should have been tried by one and the same Court, there is every possibility of the trial Court to have invoked the last limb of Section 427(i) to order the sentence to run concurrently. It is in unfortunate case where both the cases were tried by different courts and judgments were delivered by this Court at different points of time. Therefore, there was no opportunity for the courts to decide as to whether concurrent sentence can be ordered. On hearing both sides, the learned single Judge of this Court has held that with a view to secure ends of justice, it would be just and reasonable to order both the sentences to run concurrently. 16.The learned counsel for the petitioner has also placed https://hcservices.ecourts.gov.in/hcservices/ reliance upon an unreported order of this Court dated 25.08.2010 made in Crl.O.P.No.151 of 2009 (Ravi @ Steel Ravi vs. State represented by Inspector of Police, Erode South Police Station and Another). In this petition also the petitioner had sought for a direction that the sentences imposed on him in S.C.No.32 of 2001 by the learned Additional Sessions Judge (Fast Track Court-I), Erode, by the Judgment dated 10.12.2001 to run concurrently with the another sentence imposed pursuant to his conviction in S.C.No.7 of 2001, on the file of the learned Additional Sessions Judge (Fast Track Court No.I), Erode on the same date ie.10.12.2001. 17.It was argued in this case that as the petitioner stood convicted in two different cases on the same day, he was unable to get the benefit of the subsequent sentence running concurrently with the earlier sentence and therefore interest of justice would require this Court to exercise power under Section 482 Cr.P.C. to direct both sentences to run concurrently. Reliance was placed on the judgment of this Court reported in G.Rangarajan v. State by Inspector of Police, SPE/CID/CBI, Chennai, 2010(2) C.L.T.572. On considering the circumstances, which warranted the petitioner to file the petition, the learned Judge of this Court has directed that the sentence imposed on the petitioner in S.C.No.32 of 2010, dated 10.12.2001 to run concurrently with the sentence imposed pursuant to his conviction in S.C.No.7 of 2001, on the file of the learned Additional Sessions Judge (Fast Track Court No.I), Erode, on the same date. 18.Countering the arguments advanced on behalf of the petitioner, the learned Government Advocate (Crl.Side) has contended that the inherent jurisdiction of this Court conferred under Section 482 Cr.P.C. cannot be invariably invoked and it must be pressed into service sparingly under rare circumstances. He has also submitted that since the proviso to Section 427 Cr.P.C. was not invoked in the original sessions cases or in the appeals, a separate application filed before this Court under Section 482 Cr.P.C. is not maintainable. He has also canvassed that the relief under Section 482 Cr.P.C. is not an appropriate remedy as neither trial Judge nor High Court while convicting and sentencing the appellant indicated that sentences passed against him in both the cases shall run concurrently. In support of his argument, he has also placed reliance upon the decision made in M.R.Kudva v. State of A.P. reported in (2007) 1 SCC (Cri) 648. In this case, the proviso to Section 427 Cr.P.C. was brought to the notice of the Hon'ble Supreme Court for consideration of an application of the appellant, who was a bank employee. Two cases came to be registered against him by the Central Bureau of Investigation (CBI); one being Criminal Case No.9 of 1992 and another being Criminal Case No.5 of 1993. In the first case, he was convicted for commission of offences punishable under Sections 120-B/420, 468 and 471 I.P.C. read with Section 5(1) of the Prevention of Corruption Act, 1947 and https://hcservices.ecourts.gov.in/hcservices/ he was sentenced to undergo 18 months rigorous imprisonment, with different amounts of fines for offences punishable under the above said sections. In the second case, he was found guilty for commission of offences punishable under Sections 120- B/420, 468 and 471 I.P.C. read with Section 5(1) of the Prevention of Corruption Act, 1947 and sentenced him to undergo rigorous imprisonment for two years, with different amounts of fines for offences punishable under the above said sections. 19.Appeals preferred challenging the conviction and sentence before High Court were dismissed by the Judgments dated 30.12.2004 and 20.01.2005 respectively. Special leave petitions filed theragainst were also dismissed by the Hon'ble Supreme Court. In this background, the appellant thereafter filed an application before the High Court under Sections 482 and 427 Cr.P.C. with a prayer that the sentences imposed upon him in both the cases be directed to run concurrently. While advancing his arguments, the learned counsel for the appellant therein in support of his arguments had placed reliance upon the following two decisions: i. Mohammed Akhtar Hussain v. Assistant Collector of Customs (Prevention) (1988), 4 SCC 183 : 1988 SCC (Cri) 921, ii. Ammavasai v. Inspector of Police, (2000) 9 SCC 749 : 2001 SCC (Cri) 1477 : AIR 2000 SC 3544, After giving consideration, his Lordship has held that the said decisions, therefore, are not the authorities for the proposition that it is incumbent upon the court to direct in a case of this nature that both the sentences shall run concurrently and not consecutively. 20.Ultimately, his Lordship has held that in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature as it had not exercised such jurisdiction while passing the judgments in appeal, Section 482 of the Code was, therefore, not an appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. 21.On coming to the instant case on hand, the facts and circumstances of the present petition resembles the facts and circumstances narrated in the above cited decision. In the https://hcservices.ecourts.gov.in/hcservices/ given case on hand, the petitioner was tried in the case in S.C.No.120 of 1999 for the offence under Section 302 I.P.C. After completion of the trial, the learned Principal Sessions Judge, Coimbatore had found him guilty under Section 304(i) and sentenced to suffer ten years of rigorous imprisonment by his Judgment dated 30.07.1999. 22.Challenging the conviction and sentence, the petitioner had preferred an appeal before this Court in C.A.No.99 of 2000. When the petitioner was on suspension of sentence in the appeal in C.A.No.99 of 2000, he was charged for an offence under Section 302 I.P.C. and tried in another sessions case in S.C.No.186 of 2001. After completion of the trial, the learned Principal Sessions Judge, Coimbatore had found him guilty under Section 302 I.P.C. and sentenced him to suffer life imprisonment by his Judgment dated 10.10.2001. Thereafter, he filed an appeal before this Court in C.A.No.484 of 2002. On final hearing, this Court has found him guilty under Section 304(i) I.P.C. instead of 302 I.P.C. and sentenced him to undergo seven years rigorous imprisonment by the Judgment dated 28.10.2004. 23.It is apparent from the face of the records that while imposing life imprisonment in the case in S.C.No.186 of 2001, the petitioner had not requested the learned trial Judge to invoke the proviso to Section 427(i) Cr.P.C. to direct the previous sentence passed in S.C.No.120 of 1999, dated 30.07.1999 to run concurrently with the subsequent sentence imposed on him by the Judgment dated 10.10.2001. Even before this Court, while deciding the appeals in C.A.No.484 of 2002, he had not requested the Court to direct the previous sentence imposed on him by the Judgment dated 30.07.1999, which was confirmed in appeal in C.A.No.99 of 2000 by this Court to run concurrently with the subsequent sentence imposed on him by the Judgment dated 25.10.2002 by this Court in C.A.No.484 of 2002 in S.C.No.186 of 2001. 24.It was argued on behalf of the petitioner that the petitioner has been languishing in jail for the past ten years. It is pertinent to note here that proviso to Section 427 Cr.P.C. was not invoked by the learned Principal Sessions Judge, Coimbatore while imposing sentence on the petitioner in S.C.No.186 of 2001, by the Judgment dated 10.10.2001. Even this Court has also not invoked the proviso to Section 427 Cr.P.C., while imposing sentence in appeal in C.A.No.484 of 2002 on 28.10.2004. Now the petitioner has come forward with this petition under Section 427 r/w 482 Cr.P.C. after a long gap with the prayer to direct the sentences of seven years of rigorous imprisonment imposed in C.A.No.484 of 2002 in S.C.No.186 of 2001 on the file of the learned Principal Sessions Judge, Coimbatore to run concurrently with the sentence of ten years of rigorous imprisonment imposed on him on 30.07.1999 in S.C.No.120 of 1999, on the file of the learned Principal Sessions Judge, Coimbatore, https://hcservices.ecourts.gov.in/hcservices/ which was confirmed by this Court in C.A.No.99 of 2000. 25.This Court has carefully considered the submissions made on either side. This Court has also sympathetically considered the averments of the petition. 26.In M.R.Kudva v. State of A.P. reported in (2007) 1 SCC (Cri) 648, the Apex Court has held that Section 482 Cr.P.C. is, therefore, not an appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 Cr.P.C. would be attracted. 27.In the instant case on hand also, the provision of Section 427 Cr.P.C. was not invoked either in the original cases or in the appeals. Under the above said circumstances, Section 427 Cr.P.C. cannot be applied in a separate and independent proceedings by this Court in exercising the inherent jurisdiction under Section 482 Cr.P.C. 28.Keeping in view of the above observations, this criminal original petition is dismissed. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar krk To 1.The Inspector of Police B1, Police Station Kadaiveethi, Coimbatore 2.The Inspector of Police Veriety Hall Police Station Coimbatore 3.The Inspector General of Prisons Chennai 4.The Principal Sessions Judge, Coimbatore. 5.The Public Prosecutor, High Court, Madras – 600 104. +1 cc to Mr.S.Suresh Advocate SR No.18096. MG(CO) DD 21.04.2011. https://hcservices.ecourts.gov.in/hcservices/