A.R. Muthukrishnan vs State

G.M. Akbar Ali, J.—This Criminal Original Petition is filed to direct the sentences, as imposed by the trial Court through the judgment dated 27.12.2002 in C.C. Nos. 4, 5 and 6 of 1998 on the file of the Special Judge for CBI Cases, Madurai, to run concurrently by invoking the powers under Section 482 of Cr.P.C. The petitioner is one of the accused in C.C. Nos. 4, 5 and 6 of 1998 for the offences under Sections 120(b), 420, 467, 468, 471 and 381 of I.P.C. In all the three cases, he was tried along with other accused and ultimately, the learned Special Judge for CBI Cases, Madurai found all the accused guilty for the above said charges. The petitioner was imposed the sentence as detailed here:

The judgment was delivered on 27.12.2002. However, the learned trial Judge has not invoked his power under Section 427 of Cr.P.C. to the effect that the sentences to run concurrently. The petitioner preferred an appeal in C.A. Nos. 714, 715 and 716 of 2003 before this Court and the appeals were dismissed, confirming the sentences by an order dated 05.02.2008 and this Court has also not invoked the jurisdiction under Section 427 Cr.P.C. After the lapse of almost 11 years, the petitioner preferred a petition under Section 482 of Cr.P.C., for the similar relief, which was subsequently withdrawn on 24.02.2011. Now the present Criminal Original petition is filed in the year 2012.

Mr. M. Subash Babu, learned counsel for the petitioner relied on a judgment of this Court in Ravi v. State (2011) 2 MLJ (Crl) 338, wherein this Court has invoked the powers under Section 482 Cr.P.C., and ordered the sentences to run concurrently under Section 427 of Cr.P.C.

He has also relied on a Division Bench judgment of this Court in K. Arasan and Rajkumar Vs. The State of Tamil Nadu, . The Division Bench of this Court also is of the view that though the said inherent power under Section 427 was not invoked either before the trial Court or before the appellate Court, the Courts can exercise its jurisdiction under Section 482 of Cr.P.C.

Mr. K.K. Senthil Velan, learned Special Public Prosecutor appearing for the respondent would submit that in M.R. Kudva Vs. State of Andhra Pradesh, , the Hon''ble Supreme Court is of the view that in such cases, the exercise of power under Section 482 of Cr.P.C. is not the appropriate remedy. The learned Special Public Prosecutor also relied on a judgment in V.K. Bansal Vs. State of Haryana and Others etc. etc., , wherein the Honourable Supreme Court has held that the default sentence cannot be ordered to run concurrently.

Heard the learned counsel for the petitioner as well as the learned Special Public Prosecutor and perused the materials available on record.

The question before the Division Bench of this Court in K. Arasan v. State of Tamil Nadu (supra) was a similar question which is before us. The Division Bench of this Court after analysing the entire materials and more particularly, a judgment of the larger Bench of the Hon''ble Supreme Court reported in State of Punjab Vs. Madan Lal, ultimately, in paragraph-16 held as follows:

"16. It is to be stated that invoking the jurisdiction under Section 482 Cr.P.C. in order to grant the relief under Section 427 Cr.P.C. would not amount to altering, varying or modifying the findings of the trial Court or appellate Court. On the other hand, it is always open to this Court to exercise power under Section 482 Cr.P.C. to secure the ends of justice. It is needless to say that this Court has to exercise its judicial discretion for invoking the power under Section 482 Cr.P.C. for granting the relief under Section 427 Cr.P.C., on the basis of the facts and circumstances and gravity of the charge levelled against the accused in each case."

However, in M.R. Kudva v. State of Andhra Pradesh (supra), the Supreme Court was of the different view. Since the Larger Bench was of the view that sentences can be ordered to run concurrently under Section 427 Cr.P.C., by invoking jurisdiction under Section 482 of Cr.P.C., I am not inclined to follow the judgment reported in M.R. Kudva v. State of Andhra Pradesh (supra), which was also been referred to in the Division Bench of this Court. However, in the Judgment of the Supreme Court reported in V.K. Bansal v. State of Haryana and Another etc. (supra), wherein the Honourable Supreme Court has referred to the Full Bench judgment reported in State of Punjab v. Madhan Lal (supra) and in paragraph-17 clarified the position. According to its finding, the provisions of Section 427 of Cr.P.C. do not, permit a direction for the concurrent running of the substantive sentence with sentences awarded in default of payment of fine/compensation.

Section 427 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."

The Supreme Court in State of Punjab v. Madhan Lal (supra) and the Division Bench of this Court in K. Arasan v. State of Tamil Nadu (supra) are of the view that such sentences can be ordered to run concurrently under Section 427(1)(i) of Cr.P.C., by invoking Section 482 of Cr.P.C.

Section 429 reads as follows:

"429. Saving.- (1) Nothing in Section 426 or Section 427 shall be held to excuse any person from any part of the punishable to which he is liable upon his former or subsequent conviction.

(2) When an award of imprisonment in default of payment of a fine is annexed to a substantive sentence of imprisonment and the person undergoing the sentence is after its execution to undergo a further substantive sentence or further substantive sentences of imprisonment, effect shall not be given to the award of imprisonment in default of payment of the fine until the person has undergone the further sentence or sentences."

When an award of imprisonment in default of payment of fine is imposed along with the substantive sentence, the same cannot be ordered to run concurrently and it has to be undergone separately.

Therefore, the default sentence of each of the conviction cannot ordered to be run concurrently, unless he has paid the fine.

In the result, this Criminal original Petition is allowed and the sentences imposed in C.C. Nos. 4, 5 and 6 of 1998 are ordered to run concurrently. However, the default sentence for payment of fine will be commenced from the expiry of such substantive sentence. At this juncture, the learned counsel for the petitioner submitted that the petitioner is in prison for 11 years and 5 months. However, it is for the jail authorities to calculate the sentence as per the present order and decide about the date of release.