CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 Crl.MC.No. 2623 of 2010() ------------------------- SC.315/1998 of ADDL. SESSIONS COURT (FAST TRACK COURT-I) THIRUVANANTHAPURAM .................... PETITIONER(S): ACCUSED NOS.1& 3 ------------------------------- 1. SHIBU S/O.SURENDRA, SHIBU SADANAM, KAZHAVOOR, KANJIRAMKULAM VILLAGE, 2. SIVADASA @ DASAN, S/O.SIVARAJAN, CHARIVILAPUTHEN VEEDU, KAZHAVOOR DESOM, KANJIRAMKULAM VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUATOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.S. HRITHWIK THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28-07-2010, THE COURT ON 14/09/2010 PASSED THE FOLLOWING: C R V. RAMKUMAR, J. ............................................. Crl.M.C..No.2623 of 2010 ............................................. Dated: 14th September, 2010 ORDER In this petition filed under Section 482 Cr.P.C, the petitioners who were accused Nos.1 and 3 in S.C.No.315 of 1998 on the file of the Additional Sessions Court (Fast Track Court-I), Thiruvananthapuram seek a direction that the substantive sentences of imprisonment for life and rigorous imprisonment for five years imposed on them under Sections 302 and 449 IPC may be directed to run concurrently and not consecutively. The petitioners are now serving the sentence in the Open Prison, Nettukaltheri in Thiruvananthapuram district. THE BACKGROUND FACTS 2. The facts leading to this petition can be summarised as follows:- S.C.No.315 of 1998 before the Additional Sessions Court (Fast Track Court-I), Trivandrum was a case charge-sheeted by the Crl. M.C. No.2623 of 2010 2 Kanjiramkulam Police in Crime No.51 of 1997 against nine accused persons for offences punishable under Sections 143, 147, 148, 427,449 and 302 read with Section 149 IPC. The nine persons who were charge-sheeted were:- 1. Shibu (1st petitioner herein) 2. Suresh Babu @ Thambu 3. Sivadasan @ Dasan (2nd petitioner herein) 4. Sivarajan @ Sivadasan 5. Shemi @ Sohan 6. Kumar @ Kappakka 7. Santhosh 8. Sasi 9. Anil Kumar @ Ani Out of the nine accused persons, A5 was absconding and the case against him was split up and refiled. The remaining 8 accused persons faced trial. The learned Additional Sessions Judge after trial as per judgment dated 6.07.2004 acquitted A2, A4 and A6 to A9 of all the offences and A1 and A3 of the offences Crl. M.C. No.2623 of 2010 3 punishable under Sections 143,147,148,427 and 149 IPC, but convicted A1 and A3 of the offences punishable under Sections 302 and 449 read with 34 IPC. For the above conviction the trial Judge sentenced A1 and A3 (the petitioners herein) as follows:- “So I sentence A1 and A3 for their conviction u/s 302 r/w 34 IPC to undergo imprisonment for life each and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) each, in default of payment of fine, to undergo R.I for 3 (three) years each. I further sentence A1 and A3 for their conviction u/s 449 r/w 34 IPC to undergo R.I for 5(five) years each and to pay fine of Rs.10,00/-(Ten thousand only) each, in default of payment of fine, to undergo R.I for 2(two) years each. The substantive sentences shall run consecutively.” The petitioners preferred Crl. Appeal No.1484/2004 before this Court challenging the conviction entered and the sentence passed against them. As per judgment dated 29.10.2007, this Court dismissed the appeal, confirming the conviction entered and the sentence passed. The 2nd petitioner herein (A3) preferred S.L.P(Crl.)No.4749 of 2009 before the Supreme Court of India challenging the judgment passed by this Court. As per Crl. M.C. No.2623 of 2010 4 order dated 7.07.2009, the Hon'ble Supreme Court of India dismissed the S.L.P on the ground of delay as also on merits. Eventhough the 2nd petitioner preferred a review petition as Review Petition (Crl.) No.656 of 2009 in S.L.P(Crl.)No.4749/2009 contending that by virtue of the statutory mandate under Section 427(2) Cr.P.C, the substantive sentence of imprisonment under Section 449 IPC should have been directed to run only concurrently and not consecutively with the sentence of imprisonment for life, the said Review Petition was dismissed by the Supreme Court on 9.12.2009. It is thereafter that the petitioners have filed the present petition under Section 482 Cr.P.C seeking the aforesaid direction. 3. I heard Advocate Sri.Revikrishnan, the learned counsel appearing for the petitioners and Advocate Sri.C.S.Hrithwik the learned Public Prosecutor who defended the State. The Stand of the Prosecution 4. Sri. Hrithwik, the learned Public Prosecutor made the following submissions before me opposing the prayer of the Crl. M.C. No.2623 of 2010 5 petitioners:- The trial court had specifically directed that the sentences imposed on the petitioners under Section 302 and 449 IPC shall run consecutively. The said direction was not challenged by the petitioners in Crl. Appeal 1284/2004 filed before this Court. On the contrary, they were concentrating on the merits of the case so as to secure an order of acquittal. In the Special Leave Petition also the 2nd petitioner was challenging before the Supreme Court the conviction entered against him on the merits. In the Review Petition filed by the 2nd petitioner before the Supreme Court he had specifically relied on Section 427(2) Cr.P.C to seek concurrency in the sentence and failed. It is, therefore, not open to both the petitioners to seek a direction for concurrency in the sentence by filing this petition under Section 482 Cr.P.C. Reliance placed by the petitioners on Chacko v. State of Kerala (2003(2) KLT 964) is of no avail to them since in that case, the Division Bench was considering the statutory mandate under Section 427(2) Cr.P.C in separate trials and not Crl. M.C. No.2623 of 2010 6 in the same trial. Ranjith Singh v. Union Territory of Chandigarh ( AIR 1991 SC 2296) was also a case involving separate trials falling under Section 427(2) Cr.P.C. Section 427 (2) Cr.P.C has no application to the present case which does not involve two or more separate trials. Ravindra Trimbak Chouthmal v. State of Maharashtra - (1996)4 SCC 148) was a case of dowry death in which the Apex Court after commuting the death sentence awarded to the husband of the deceased under section 302 IPC into a sentence of imprisonment for life and after confirming the sentence of rigorous imprisonment for seven years under section 201 IPC directed that the sentence of rigorous imprisonment awarded under section 201 IPC would start running only after the life imprisonment has run its course as per law. In M.R.Kudva v. State of Andhra Pradesh (2007)2 SCC 772 the Apex Court has held that if the benefit under Section 427 Cr.P.C was not claimed either before the trial court or before the High Court in Appeal or before the Supreme Court in S.L.P., it is not open to the convict to claim the benefit Crl. M.C. No.2623 of 2010 7 under Section 427 Cr.P.C by filing a petition before the High Court under Section 482 Cr.P.C. To the same effect is the decision of a Division Bench of this Court in Sukumaran v. State of Kerala (2008 (1) KLT 732). The present case does not fall under any of the categories enumerated by the three Judges' Bench of the Supreme Court in R.P.Kapur v. State of Punjab (AIR 1960 SC 866) for the exercise of the inherent power of the High Court. When there is an express provision in the Cr.P.C governing a particular situation, then there is no scope for invoking or exercising the inherent power of the High Court under Section 482 Cr.P.C. If this Court were to direct that the sentences should run concurrently, then it would amount to review of the judgment of this Court in appeal wherein this Court did not interfere with the direction of the trial court that the sentences shall run consecutively. There is no scope for invoking or exercising the power under Section 482 Cr.P.C. if there is an express provision governing the particular subject matter (vide Palaniappa Gounder v. State of Tamil Nadu - Crl. M.C. No.2623 of 2010 8 AIR 1977 SC 1323). The High Court has no jurisdiction to alter or review its own judgment by recourse to power under Section 482 Cr.P.C. (vide State of Orissa v. Ram Chandar Agarwala - AIR 1979 SC 87, Hari Singh Mann v. Harbhajan Singh Bajwah - (2001)1 SCC 169 and State of Kerala v. Manikandan Nair - 2001(3) KLT 80 (SC) In Penchil Rao v. State of Kerala (2005 (4) KLT (SN) 40) a Division Bench of this Court held that when the direction by the trial court that two or more sentences of imprisonment imposed in the same trial shall run consecutively was not interfered with in appeal before this Court or before the Supreme Court, this Court was not entitled to order that the sentences shall run concurrently by exercising its inherent power under Section 482 Cr.P.C since it would amount to review of the earlier judgment. In view of the above legal position, this Court cannot entertain this petition, much less, alter the direction of the trial court that the substantive sentences shall run consecutively and which direction was not interfered with in appeal by this Court or in S.L.P. by the Crl. M.C. No.2623 of 2010 9 Supreme Court. JUDICIAL EVALUATION 5. While in the case of the 2nd petitioner (A3), I see considerable force in the submission made by the learned Public Prosecutor since the Supreme Court had expressly dismissed the review petition filed by A3 who had pointedly invoked section 427(2) Cr.P.C seeking a direction for concurrency of sentence, I am afraid that I find myself unable to agree with the Public Prosecutor's submission with regard to the 1st petitioner (A1). This is a case in which after awarding the sentence of imprisonment for life under section 302 read with section 34 IPC, the learned Additional Sessions Judge awarded a sentence of rigorous imprisonment for five years on each of the petitioners under section 449 read with 34 IPC. The only direction regarding the operation of the sentences of imprisonment issued by the trial judge was that the substantive sentences shall run consecutively without indicating as to which of the sentence would commence after the expiration of which sentence. The Crl. M.C. No.2623 of 2010 10 only provision in the Cr.P.C laying down the rule of commencement of sentences of imprisonment imposed at the same trial is section 31 which reads as follows:- (1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such a order as the Court may direct, unless the Court directs that such punishments shall run concurrently. (2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that- (a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years; Crl. M.C. No.2623 of 2010 11 (b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence. Section 427 on the other hand deals with a situation where an offender already undergoing a sentence of imprisonment is again sentenced to imprisonment on a subsequent conviction. Section 427 Cr.P.C reads as follows:- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such 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 been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst Crl. M.C. No.2623 of 2010 12 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. Section 31 Cr.P.C speaks of punishment consisting of “imprisonment”. Section 427 Cr.P.C also uses the expression “imprisonment” in addition to the expression “imprisonment for life”. Under Section 53 of the Indian Penal Code, “imprisonment for life” and “imprisonment” (either rigorous or simple) for a term are two distinct punishments to which an offender can be made liable. In other words, a sentence of “imprisonment for life” is distinct and different from a sentence of “imprisonment” for a term. Imprisonment for life has always been understood as imprisonment or incarceration till the last breath or until the death or for the whole of the remaining period of the natural life of the convicted person (vide Gopal Vinayak Godse v. State of Crl. M.C. No.2623 of 2010 13 Maharashtra - AIR 1961 SC 600, Sambha Ji v. State of Maharashtra - AIR 1974 SC 147, State of Madhya Pradesh v. Rathan Singh- AIR 1976 SC 1582, Maru Ram v. Union of India - AIR 1980 SC 2147 and Ranjith Singh v. Union Territory of Chandigarh - AIR 1991 SC 2296). Unless and until the appropriate Government passes an order of remission under Section 432 Cr.P.C or commutation under Section 433 Cr.P.C or an order of remission or commutation under Articles 72 or 161 of the Constitution of India, a sentence of imprisonment for life operates for an indeterminate period until the death of the life convict. Section 31(1) Cr.P.C lays down the rule regarding the commencement of operation of the sentences of imprisonment in the case of conviction of a person of several offences at one trial. Section 427(1), on the other hand, lays down the rule regarding the commencement of operation of the sentence of imprisonment for a term or a sentence of imprisonment for life imposed in a subsequent conviction on a person already undergoing a sentence of imprisonment for a Crl. M.C. No.2623 of 2010 14 term in a previous conviction. A closer scrutiny of section 427(1) Cr.P.C will reveal that the expression “imprisonment” used therein is imprisonment for a term only in contradistinction with the expression “imprisonment for life”. Both under Section 31(1) and Section 427(1) Cr.P.C the rule is consecutive sentence of imprisonment (i.e. one sentence to commence after the expiration of the other) unless the court directs that the sentences shall run concurrently. Section 31(1) does not seem to cover a sentence of imprisonment for life because, by the very nature of that sentence it runs till the death of the life convict and, therefore, no direction can be given by the Court that a sentence of imprisonment for a term awarded in the same trial shall commence only after the expiration of the sentence of imprisonment for life awarded in the same trial. Even assuming that the expression “imprisonment” used in Section 31(1) Cr.P.C is wide enough to take in imprisonment for life as well, still it is not as if in the absence of a direction by the court to the effect that the sentences shall run concurrently, the sentences will Crl. M.C. No.2623 of 2010 15 automatically run consecutively. This is because section 31(1) envisages a further direction by the court regarding the order in which each sentence shall commence after the expiration of the other. Or else, in a case as the present one, if imprisonment for life and imprisonments for fixed term are awarded in the same trial and if the sentence of imprisonment for life happens to be passed as the first sentence, then, unless otherwise indicated, the sentences for imprisonment for fixed terms will become inoperative if they are to be served after the sentence of imprisonment for life. For the same reason, the ordinary rule of consecutive sentence under section 427(1) Cr.P.C also cannot apply to a person already undergoing a sentence of imprisonment for life and that is why a rule of concurrency is statutorily enjoined under section 427(2) Cr.P.C. Section 427(1) will be attracted only if the person is already undergoing a sentence of imprisonment for a term in a previous trial. The case of a person already undergoing a sentence of imprisonment for life is covered only by Section 427(2) Cr.P.C which, however, is Crl. M.C. No.2623 of 2010 16 attracted only if such person is sentenced to imprisonment for a term or imprisonment for life on a subsequent conviction . In such a case, the above provision mandates that such subsequent sentence of imprisonment , whether for life or for a term, shall run concurrently with the previous sentence of imprisonment for life. Since it is in the form of a statutory mandate, no court direction is necessary for the subsequent sentence of imprisonment to run concurrently (See Ranjith Singh v. Union Territory of Chandigarh - AIR 1991 SC 2296), Chacko v. State of Kerala 2003(2) KLT 964 and Gopakumar v. State of Kerala - 2008(2) KLT 246). Section 427(2) Cr.P.C does not lay down the rule to be applied in a case, as the present one, where a sentence of imprisonment for a term is imposed on a person on whom a sentence of imprisonment for life is imposed in the same trial. One essential distinction between Section 427(1) and Section 427(2) is that in the former a direction by the court is called for in order to make the sentence of imprisonment to run concurrently whereas in the latter, concurrent sentence is the Crl. M.C. No.2623 of 2010 17 only rule and it applies by operation of law and no court direction is necessary. Thus, in cases falling under Section 31(1) Cr.P.C the commencement of the concurrent or contemporaneous sentences imposed in the same trial and in cases falling under section 427(1) the commencement of the subsequent sentences of imprisonment are both postponed till the expiration of the other sentence or the earlier sentence, as the case may be, unless the court directs that such other sentence or subsequent sentence shall run concurrently with the contemporaneous or earlier sentence, as the case may be. 6. As mentioned earlier, there is no provision of law laying down the commencement of operation of a sentence of imprisonment of life awarded along with sentences of imprisonment for a term imposed in the same trial. It is well settled that a sentence of imprisonment awarded to a person will commence from the very moment such sentence is passed and it is not necessary that as a consequence of the passing of the sentence, the accused/convict should pass into the portals of Crl. M.C. No.2623 of 2010 18 the jail so as to be treated as a person undergoing a sentence of imprisonment( See Gulzar Muhammed v. The Crown - 1951 Crl.L.J.238 (Lahore) and State v. Nabin Chandra Khandapani - 1968 Crl.L.J 1152 (Orissa). In Surendra Singh and others v. State of Uttar Pradesh - AIR 1954 SC 194 a three Judges' Bench of the Supreme Court observed as follows:- “ Delivery of judgment is a solemn act which carries with it serious consequences for the person or persons involved. In a criminal case it often means the difference between freedom and jail, and when there is a conviction with a sentence of imprisonment , it alters the status of a prisoner from an undertrial to that of a convict; also the term of his sentence starts from the moment the judgment is delivered.” (emphasis applied) 7. Thus, in the case of a perso n on whom after passing a sentence of imprisonment for life, another sentence of imprisonment for a term is passed in the same trial and subsequent in point of time, then there is no reason why the principle of Section 427(2) Cr.P.C should not be applied to hold Crl. M.C. No.2623 of 2010 19 that the subsequent sentence in the same trial will run only concurrently and not consecutively, as was done by the Rajasthan High Court in Surja Ram' s case to be adverted to hereafter. If the subsequent sentence of imprisonment for a term imposed in the same trial were to be held to commence only after the convict has served the sentence of imprisonment for life passed in the same trial, then it would be an unworkable sentence. In the present case, the sentence of rigorous imprisonment for 5 years was passed subsequent in point of time to the sentence of imprisonment for life although passed in the same trial. So, technically, it could be said that the sentence for imprisonment for 5 years was passed on the petitioners at a time when they were undergoing a sentence of imprisonment for life so as to apply, at least, the principle behind section 427(2) Cr.P.C. That was precisely what the Division Bench of the Rajasthan High Court did in Surja Ram v. The State - AIR 1963 Rajasthan 202). The Division Bench observed as follows in paragraph 6 of the reported decision:- Crl. M.C. No.2623 of 2010 20 “(6) Section 397, Criminal Procedure Code does not directly apply to this case for the simple reason that the convictions earned by the accused were in respect of offences for which he had been tried jointly at one trial. However, the principle underlying section 397(2), Criminal Procedure Code deserves to be applied to this case. Section 35 Criminal Procedure Code would have applied to it but for the reason that he was sentenced to death under section 302 and not to life imprisonment, and the occasion for the court to make an order under Section 35 Criminal Procedure Code lapsed by the time the sentence of death was commuted. This case has, therefore, become an unusual one and cannot fall either under Section 35 or under Section 397 of the Criminal Procedure Code and we shall have to decide it with reference to the principles underlying the said provisions of the Criminal Procedure Code. It is also significant that when a person is sentenced to imprisonment for life, it cannot be conceived that he shall be made to undergo sentences of various terms of imprisonment that may have been passed at the same trial under other sections after serving the term of life imprisonment. After the life of a convict is finished there cannot remain any opportunity for enforcing other terms of imprisonment Crl. M.C. No.2623 of 2010 21 against him. That is why the provision under Section 397 (2) Criminal Procedure Code has been so enacted. In this view of the matter, we think that the imprisonments under section 307 and 309, Bikaner Penal Code passed against the petitioner could not be conceived to have been enforced after the expiry of the life imprisonment passed against him. The only answer, therefore, which can be given to the question is that the two terms of imprisonments under Section 307 and 309 shall have to be enforced concurrently with the life imprisonment. The order of the Session Judge of Ganganagar dated 4 th of January, 1949, does not appear to be consistent with the principles underlying section 35 and section 397 Criminal Procedure Code and deserves to be vacated” (emphasis supplied) The Rajasthan High Court was considering in that case the scope and applicability of Sections 35 and 397 of the Code of Criminal Procedure, 1898 (Old Code) corresponding to sections 31 and