IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 15TH FEBRUARY, 2008 / 26TH MAGHA, 1929 Crl.MC.No. 3880 of 2005 ------------------------------ (AGAINST THE ORDER DATED 30/08/2005 IN CRA. 530/2005 & CRA.512/2005 of SESSIONS COURT, THRISSUR CC.226/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, THRISSUR) .................... PETITIONER: ---------------- BENSON, S/O.KOZHUKULLIKARAN LONAPPAN, C.NO.3961, CENTRAL PRISON, VIYYUR. BY ADV. PARTY-IN-PRISON RESPONDENT: ----------------- STATE OF KERALA. BY PUBLIC PROSECUTOR SRI.C.M.KAMMAPPU. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,JJ. ----------------------------------------------------- Crl.M.C.No. 3880 OF 2005 ----------------------------------------------------- Dated this the 15th day of February, 2008. O R D E R The above M.C. is filed on the basis of the petition dated 27.10.2005, sent by one Benson, C.No.3961 in the Central Jail, Viyyur which is counter signed by the Superintendent of Central Prison, Viyyur. According to the petitioner, he is now undergoing imprisonment on the basis of the conviction and sentence awarded by the Judicial First Class Magistrate's Court-II, Thrissur in C.C.No.226 of 2004 which was confirmed as per the judgment dated 30.8.2005 of the lower Appellate Court in Crl.Appeal No.512 of 2005 on the file of Sessions Court, Thrissur and on the basis of the judgment dated 14.6.2005 in C.C.No.529 of 2004 of the Judicial First Class Magistrate Court, Thrissur. It is stated by the petitioner that on second conviction and ordering sentence of imprisonment, the court ought to have directed that such sentence of imprisonment has to be undergone on the expiry of the imprisonment of which he is already Crl.M.C NO.3880 of 2005 :-2-: undergoing as per the earlier judgment and in the absence of such declaration, unless and until it is specifically ordered, he need not undergo the imprisonment one after another. According to the petitioner, as per the judgment in C.C.No.226 of 2004 as confirmed by the judgment in Crl.A.No.512 of 2005, he is undergoing imprisonment for two years and also for imprisonment for three years as per judgment in Crl.A.No.561 of 2005. So he prays that he may be ordered to be released from the prison after allowing the set off period which he had already undergone as an under trial prisoner. 2. I have heard the learned Public Prosecutor and also perused the petition of the petitioner/accused, and the entire materials available on record. C.C.No.226 of 2004 is a case registered for the offences punishable under Sections 392, 394 read with Section 34 of I.P.C. and by judgment dated 8.6.2005, the Judicial First Class Magistrate-II, Thrissur found that the petitioner, who is the first accused therein, is guilty and he was sentenced Crl.M.C NO.3880 of 2005 :-3-: to undergo rigorous imprisonment for two years under each count under Sections 392, 394 read with Section 34 I.P.C. It was specifically ordered that the substantive terms of sentence should run concurrently and also the accused was entitled to get the benefit of set off, if any, in respect of the period of detention already undergone. Though the above conviction and sentence are challenged in Crl.A.No.512 of 2005, by judgment dated 30.8.2005, the Sessions Court, Thrissur dismissed the appeal. It is also relevant to note that in C.C.No.529 of 2004, the petitioner is the first accused in which the offence alleged against him and the other accused is under Sections 392, 414 read with 34 I.P.C. where also the petitioner was found guilty and sentenced to undergo rigorous imprisonment for three years under Section 392 I.P.C. and to undergo rigorous imprisonment for one year under Section 414 of I.P.C. There was no order of fine. It was also ordered that the substantive terms of sentence should run consecutively. It was further declared that the petitioner/accused was Crl.M.C NO.3880 of 2005 :-4-: entitled to get the benefit of set off in respect of the period of detention already undergone. Thus, from the above judgment of the trial court, the total period of imprisonment to be undergone by the petitioner/accused is four years. Probably, Crl.A.No.561 of 2005 was filed by the petitioner/accused against the conviction and sentence in C.C.No.529 of 2004. In C.C.No.226 of 2004, the judgment is dated 8.6.2005 whereas in the second case, that is C.C.No.529 of 2004, the judgment is dated 14.6.2005. Though in the first case, the substantive sentence was ordered to run concurrently, in the second case, the substantive sentence was ordered to run consecutively. It is also clear that in both the cases, the period undergone as under trial prisoner is allowed to be set off against the sentence ordered. 3. One of the contentions raised by the petitioner in his petition is that he was not given the benefit of Section 428 whereas on a perusal of the judgment of the trial court as well as the appellate court, it is clear that he was given the benefit of Section 428 of Crl.M.C NO.3880 of 2005 :-5-: the Criminal Procedure Code. Therefore, the above contentions fails. 4. Another contention advanced by the petitioner is that while ordering the second conviction and sentence of imprisonment, the court ought to have imposed such conviction and sentence to the effect that the imprisonment ordered in that case has to be undergone on the expiry of the imprisonment which he is undergoing as per the earlier judgment. It is also his contention that in the absence of such declaration, unless and until it is specifically declared, he need not undergo the imprisonment one after another. 5. Section 427 of the Cr.P.C. 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 a subsequent conviction to 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 Crl.M.C NO.3880 of 2005 :-6-: been sentenced to imprisonment by an order under section 122 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 shall commence immediately. (2) When a 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.” Thus, on a simple reading of the section, it can be seen that unless the court directs that the subsequent sentence shall run concurrently with such previous sentence, the imprisonment on the basis of the subsequent conviction and sentence is to be commenced on the expiry of the previous imprisonment to which he has been previously sentenced. So the section is very clear and mandatory in nature. The contention advanced by the petitioner is untenable as it is opposed to the mandatory provision contained in Section 427 of the Cr.P.C. It is also relevant to note that the petitioner Crl.M.C NO.3880 of 2005 :-7-: herein was convicted and sentenced only to undergo imprisonment for a maximum period of three years under one head. From the terms of imprisonment calculated on the basis of the direction contained in the judgment itself, it can be seen that the maximum period of imprisonment as per the earlier order is only three years and maximum period as per the subsequent case is only four years. In view of Section 427(2) of the Cr.P.C., it can be seen that when a 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. So in order to get the benefit of subsection (2) of Section 427, the previous sentence of imprisonment must be a life imprisonment. Therefore, subsection (2) of Section 427 is not applicable in the case of the petitioner, but he has to undergo the imprisonment as per the provisions contained in Section 427(1) of Cr.P.C. Crl.M.C NO.3880 of 2005 :-8-: 6. In the case of the petitioner, it can be seen that as per the subsequent judgment, which is comparatively latest, the trial court had ordered to run substantive terms of sentence consecutively. Hence, the total period to be undergone is four years. But in the case of the previous conviction, which was as per the judgment dated 8.6.2005, the trial court had directed to run the substantive sentence concurrently. But, subsequently, within a short gap of six days, in the subsequent sentence, the court had even in the same case ordered that the substantive sentence under two heads are to be run consecutively. So the approach and policy of the court regarding sentence in the case of the petitioner is very clear and it was in that background, the court intentionally restrained from passing positive order to run the imprisonment concurrently with previous sentence. 7. In the light of the above facts and circumstances, I am of the view that there is no merit in the contention advanced by the petitioner and Crl.M.C NO.3880 of 2005 :-9-: accordingly, the Crl.M.C. is dismissed. (V.K.MOHANAN) Judge Mbs/