1. The petition is filed to issue a direction to permit the petitioner to serve all the sentence imposed in C.C. No. 113 of 1998 dated 28.6.2007 on the file of the learned Judicial Magistrate, Padmanabhapuram, Kanyakumari District, C.C. No. 297 of 1998 dated 18.1.2008 on the file of the Judicial Magistrate No. 2, Kuzhithurai, Kanyakumari District which was confirmed in C.A. No. 17 of 2002 dated 21.7.2006 on the file of the Sessions Court, Nagercoil, Kanyakumari District, C.C. No. 343 of 2000 dated 23.2.2007 which was confirmed in C.A. No. 26 of 2009 dated 8.1.2010 on the file of the Sessions Court, Nagercoil, Kanyakumari District, C.C. No. 23 of 2002 dated 12.1.2007 on the file of the District Munsiff cum Judicial Magistrate, Eraniel, Kanyakumari District, C.C. No. 119 of 1999 dated 22.12.2006 on the file of the Judicial Magistrate No. I, Kuzhithurai, Kanyakumari District and C.C. No. 120 of 1999 dated 22.12.2006 on the file of the Judicial Magistrate No. I, Kuzhithurai, Kanyakumari District to run the imprisonment concurrently with C.C. No. 21571 of 2006.
2. The petitioner, who was convicted in 11 different cases filed under Section 138 of Negotiable Instrument Act for different periods, has approached this Court to invoke the jurisdiction under Section 482 Cr.P.C. read with 427 Cr.P.C. for a direction to permit the petitioner to serve all the sentences concurrently.
3. On 15.11.2006, the petitioner was convicted in S.T.C. No. 2157 of 2006 on the file of the Judicial Magistrate No. I, Tirunelveli, Tiruneveli District for the alleged offence under section 138 of n.i. act and two years simple imprisonment was imposed.
4. On 2.12.2006, the petitioner was convicted in C.C. No. 2642 of 2004 on the file of the Judicial Magistrate No. II, Nagercoil, Kanyakumari District for the alleged offence under section 138 of n.i. act and one year imprisonment was imposed and further directed to undergo sentence concurrent with S.T.C. No. 2157 of 2006 on the file of the Judicial Magistrate No. I, Tirunelveli dated 15.11.2006.
5. On 25.4.2007, the petitioner was convicted in C.C. No. 367 of 1999 on the file of the Judicial Magistrate No. I, Kuzhithurai, Kanyakumari District on 7.6.2004 for the alleged offence under section 138 of n.i. act imposing two years rigorous imprisonment with fine amount of Rs. 5000/- and on default in payment, the petitioner has to undergo another one month of simple imprisonment which was confirmed in C.A. No. 142 of 2004 on the file of the Sessions Court, Kanyakumari Division at Nagercoil and further directed to undergo sentence concurrent with S.T.C. No. 2157 of 2006 on the file of the Judicial Magistrate No. I, Tirunelveli, dated 15.11.2006.
6. On 29.6.2007, the petitioner was convicted in C.C. No. 123 of 2002 on the file of the Judicial Magistrate No. III, Nagercoil, Kanyakumari District oh 12.3.2005 for the alleged offence under section 138 of n.i. act imposing one year rigorous imprisonment with, fine amount of Rs. 2500/- and on default in payment, the petitioner has to undergo one month of simple imprisonment which was confirmed in C.A. No. 96 of 2005 on the file of the Sessions Court, Kanyakumari Division at Nagercoil, and further directed to undergo sentence concurrent with S.T.C. No. 2157 of 2006 on the file of the Judicial Magistrate No. I, Tirunelveli dated 15.11.2006.
7. On 29.6.2007, the petitioner was convicted in C.C. No. 110 of 2002 on the file of the Judicial Magistrate No. III, Nagercoil, Kanyakumari District on 12.3.2005 for the; alleged offence under section 138 of n.i. act imposing one year rigorous imprisonment with fine amount of Rs. 2500/- and on default in payment, the petitioner has to undergo one month of simple imprisonment which was confirmed in C.A. No. 95 of 2005 on the file of the Sessions Court, Kanyakumari Division at Nagercoil and further directed to undergo sentence concurrent with S.T.C. No. 2157 of 2006 on the file of the Judicial Magistrate No. I, Tirunelveli, dated 15.11.2006.
8. On 21.7.2006, the petitioner was convicted in C.C. No. 297 of 1998 on the file of the Judicial Magistrate No. II, Kuzhithurai, Kanyakumari District on 18.1.2008 for the alleged offence under section 138 of n.i. act imposing 6 months imprisonment and fine amount of Rs. 5000/- and on default in payment, the petitioner has to undergo another three months of simple imprisonment which was confirmed in C.A. No. 17 of 2002 on the file of the Sessions Court, Kanyakumari District at Nagercoil.
9. On 22.12.2006, the petitioner was convicted in C.C. No. 119 of 1999 on the file of the Judicial Magistrate No. I, Kuzhithurai, Kanyakumari District for the alleged offence under section 138 of n.i. act.
10. On 22.12.2006, the petitioner was convicted in C.C. No. 120 of 1999 on the file of the Judicial Magistrate No. I, Kuzhithurai, Kanyakumari District for the alleged offence under Section 13-B of N.I.Act.
11. On 12.1.2007, the petitioner was convicted in C.C. No. 23 of 2002 on the file of the District Munsiff-cum-Judicial Magistrate, Eraniel, Kanyakumari District for the alleged, offence, under section 138 of n.i. act imposing 1 year imprisonment with compensation of 7 lakhs.
12. On 28.6.2007, the petitioner was convicted in C.C. No. 113 of 1998 on the file of the Judicial Magistrate, Padmanabhapuram, Kanyakumri District for the alleged offence, under section 138 of n.i. act, imposing 6 months imprisonment and fine amount of Rs. 5000/-, if the petitioner failed to pay fine amount, the petitioner has to undergo another two months of simple imprisonment. The petitioner was under judicial custody between 15.2.2007 and 28.6.2007 and that period of 134 days was to be treated as conviction period.
13. On 8.1.2010, the petitioner was convicted in C.C. No. 343 of 2000 on the file of the Judicial Magistrate, Padmanabhapuram, Kanyakumari District on 23.2.2007 for the alleged offence under section 138 of n.i. act, imposing 1 year imprisonment and fine amount of Rs. 5000/- and on default in payment, the petitioner has to undergo another one month of simple imprisonment which was confirmed in C.A. No. 26 of 2009 on the file of the Sessions Court, Kanyakumari Division at Nagercoil.
14. As it is seen from the above orders of the various Courts, the earliest conviction was in S.T.C. No. 2157 of 2006 for an offence under Section 138 of the Act and the petitioner was imposed 2 years imprisonment. This conviction was followed by four subsequent convictions and they were ordered to undergo concurrently with a sentence imposed in S.T.C. No. 2157 of 2006. However, 6 other subsequent convictions were imposed on various dates, for which, there is no order under Section 427 of Cr.P.C.
15. Mr. S. Xavier Rajini, learned counsel for the petitioner would submit that if the petitioner is not permitted to undergo the sentences concurrently, he will be languishing in the jail to undergo the imprisonment one after another and therefore, he is entitled for the benefit under Section 427 Cr.P.C. The learned counsel also relied on two orders passed by this Court in Crl. O.P. Nos. 3558 of 2010 and 8430 of 2010 invoking jurisdiction under Section 482 Cr.P.C. The learned counsel also relied State of Punjab v. Madan Lal (2009) 5 SCC 238 : 2009 (2) CTC 459 : LNIND 2009 SC 529, wherein the Supreme Court has considered the conviction of an accused for a different dishonoured cheques issued and different complaints filed and different sentences passed to run concurrently.
16. On the contrary, Mr.G.Kasinathadurai, learned counsel for the 11th respondent relied on M.S. Kudva v. State of Andhra Pradesh AIR 2007 SC 568 : (2007) 1 SCC (Cr) 648 : LNIND 2006 SC 1164 wherein the Supreme Court has held invoking jurisdiction under Section 482 Cr.P.C. is not an appropriate remedy.
17. Heard the learned counsel for the petitioner and the learned counsel for the respondent Nos. 11 and 14 and perused the materials available on record.
18. The mute point to be considered is that in a conviction under Section 138 of the Act, for different cheques, in different transactions, while executing punishment, whether the High Court can direct the sentences imposed, were to run concurrently.
19. sections 427 and 428 sections 427 and 428 of 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, 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 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.
428. Period of detention undergone by the accused to be set of against the sentence of imprisonment -
Where an accused person has, on conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him.
Provided that in cases referred to in Section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that Section.”
20. Section 428 is applicable in a case where a) during the stage of investigation, inquiry or trial of a particular case, the prisoner should have been in jail at least for a certain period and b) he should have been sentenced for a term in that case.
If these two conditions are satisfied, the convicted person needs to undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. However, Section 427 of the Code stipulates, when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment (in a different case), such imprisonment shall commence at the expiration of the previous sentence i.e., it would run consecutively. However, the Court can direct the subsequent sentence to run concurrently.
21. In Mohd. Akthar alias Ibrahim Ahamed Bhatti v. Assistant Collector of Customs (Prevention) Ahmedabad and Others. AIR 1998 SC 2143 : (1998) SCC (Cr) 254 the Apex Court considered the principle of sentencing of an offender, who is already undergoing a sentence of imprisonment. It was the case where the appellant/accused was found guilty for two offences and the trial Court has convicted the appellant and, passed an order (this sentence is to be undergone on expiration/of sentence in criminal Case No. 1674 of 1982) against the order of conviction and sentence, there were appeals and counter appeals before, the High Court. The High Court dismissed the appeal of the accused/appellant. The result is that he has to serve in all 14 years imprisonment. The Supreme Court considered Section 427 of Cr.P.C. and held as follows:
“8. Section 427. Cr.P.C incorporates the principle of sentencing an offender who is already undergoing a sentence of imprisonment.
The relevant portion of the-Section reads:
“427(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.”
9. The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing Court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive.
10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences, are quite different.”
22. In State of Maharashtra v. Najakat alias Mubarak Ali AIR 2001 SC 2255 : 2001 SCC (Cr) 1106 : (2001) 6 SCC 311 : LNIND 2001 SC 1222 , Section 428 Cr.P.C. (set off) was considered by the Supreme Court and the majority view was expressed in paras 14 to 18, which are as follows:
“14. The purpose of section 428 of the code is also for advancing amelioration to the prisoner. We may point out that the Section does not contain any indication that if the prisoner was in jail as an under trial prisoner in a second case the benefit envisaged in the Section would be denied to him in respect of the second case. However, learned counsel for the appellant contended that the words “of the same case” in the Section would afford sufficient indication that the benefit is intended to cover only one case and not more than that. It must be remembered that the ideology enshrined in Section 428 was introduced for the first time only in the Code of Criminal Procedure, 1973. For understanding the contours of the legislative measure involved in that Section, it is advantageous to have a look at the objects and reasons for bringing the above legislative provision. We therefore extract the same here:
“The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as undertrial prisoner. Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes Courts do take into account the period of detention undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided, in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are undertrial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting-off of the period of detention as an undertrial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause would go a long way to mitigate the evil.”
(emphasis supplied)
15. The purpose is therefore clear that the convicted person is given the right to reckon the period of his sentence of imprisonment from the date he was in jail as an undertrial prisoner. In other words, the period of his being in jail as an undertrial prisoner would be added as a part of the period of imprisonment to which he is sentenced. We may now decipher the two requisites postulated in section 428 of the code:
(1)During the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period.
(2)He should have been sentenced to a term of imprisonment in that case.
16. If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words “if any” in the Section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, enquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him.
17. In the above context, it is apposite to point out that very often it happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect, be imprisonment for other counts as well.
18. Reading section 428 of the code in the above perspective, the words “of the same case” are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words “of the same case” “were used to refer to the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words.”
23. The above principle was followed in State of Punjab v. Madan Lal (supra) which was a case where a conviction in an appeal by the State of Punjab against the decision of the single Judge of Punjab & Haryana Court allowing an application filed under Section 482 Cr.P.C. read with Section 427 of Cr.P.C. The prayer was to the effect that the quantum of punishment awarded may be permitted to run concurrently in respect of three convictions and sentences imposed. The conviction were in terms of Section 133 of Negotiable Instrument Act, which is related to different cheques issued by the accused to the complainant party. The High Court allowed the application and the State preferred an appeal and the Supreme Court citing the majority view taken in State of Maharashtra v. Najakat alias Mubarak Ali (supra) dismissed the appeal.
24. However, one of the respondent/complainant had relied on M.S. Kudva v. State of Andhra Pradesh (supra) where the Supreme Court had held in para 12 which reads as follows:
“12. However, in this case the provision of Section 427 of the Code was not invoiced 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. The appeal being “devoid of any merit is dismissed.”
25. However, a single Judge of this Court in Crl. O.P. No. 3558 of 2010 and 8430 of 2010 dated 30.7.2010 had followed the judgment of the Supreme Court Stateof Punjab v. Madan Lal (supra) and has permitted the petitioner to undergo the sentence concurrently.
26. Since the Larger Bench of the Supreme Court State of Punjab v. Madan Lal (supra) had considered on application filed, under Section 482 Cr.P.C, the decision rendered in M.S. Kudva v. State of Andhra Pradesh (supra) may not be applicable and invoicing jurisdiction under Section 482 Cr.P.C. is indeed available to the be petitioner.
27. In a similar circumstances, the Supreme Court has upheld the order of the High Court directing the sentences to run concurrently in a case arising out of 3 convictions under Section 138 Negotiable Instrument Act. Therefore, it is appropriate to allow this application. Hence, the criminal original petition is allowed.
Comments