Mohammed Iliyas vs Government of Madras

R. Mala, J.—This Crl. O.P. was already disposed of on 30.7.2010 and is listed under the caption ''for being mentioned'' at the instance of

the learned Special Public Prosecutor for CBI cases appearing for the 1st Respondent.

Heard both sides.

This Criminal Original Petition is filed by the Petitioner/A.2 with a prayer to direct the Respondents, that the sentence imposed in C.C. No. 4 of

1999, dated 30.03.2001 on the file of the Principal Special Judge for CBI Cases, Madurai and C.C. No. 5 of 1999, dated 30.03.2001 on the file

of the Principal Special Judge for 2 CBI Cases, Madurai, shall run concurrently.

When the case came up for hearing, this Court heard the learned Counsel appearing for the Petitioner/A.2 in both the cases, and the learned

Government Advocate (Criminal Side) appearing for the second Respondent-Superintendent of Central Prison, Madurai and reserved the case

''For Orders''; thereafter, on 30.07.2010, this Court pronounced the verdict by allowing this petition.

Thereafter, the learned Special Public Prosecutor appearing for CBI cases/first Respondent-Inspector of Police, SPE:CBI, ACB, Chennai,

submitted that he has not advanced any arguments in this case and without hearing his arguments, after hearing the arguments made on behalf of the

second Respondent-Superintendent of Central Prison, Madurai, this Court passed the orders and hence, he requested that the case be heard

afresh and orders be passed on merits.

Hence, thereafter, this Court heard afresh the learned Counsel appearing for the Petitioner; the learned Special Public Prosecutor for CBI

cases/first Respondent and the learned Government Advocate (Criminal Side) appearing for the second Respondent/Superintendent, Central

Prison, Madurai and perused the entire materials available on record.

The learned Counsel appearing for the Petitioner submitted that the Petitioner was convicted under the following cases:

(i) C.C. No. 4 of 1999 on the file of the learned Principal Special Judge, CBI Cases, Madurai: The Petitioner/A.2 was found guilty and convicted

and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 1,000/-, in default to undergo rigorous imprisonment

for three months, for each of the following offences:

(a) Section 120B r/w 420, 467, 467 r/w 471, 468, 468 r/w 471 I.P.C and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988;

(b) Section 420 IPC;

(c) Section 467 IPC;

(d) Section 467 r/w 471 IPC;

(e) Section 468 IPC and (f) Section 468 r/w 471 IPC. The sentence for all the offences are ordered to run concurrently. The remand period

already undergone is ordered to be set off u/s 428 Code of Criminal Procedure (Total fine for A.2 is Rs. 6,000/-).

(ii) C.C. No. 5 of 1999 on the file of the learned Principal Special Judge, CBI Cases, Madurai:

The Petitioner/A.2 was found guilty and convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs.

1,000/-, in default to undergo rigorous imprisonment for three months, for each of the following offences:

(a) Section 120B r/w 420, 467, 467 r/w 471, 468, 468 r/w 471 I.P.C and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988;

(b) Section 420 IPC;

(c) Section 467 IPC;

(d) Section 467 r/w 471 IPC;

(e) Section 468 IPC and (f) Section 468 r/w 471 IPC. The sentence for all the offences are ordered to run concurrently. The remand period

already undergone is ordered to be set off u/s 428 Code of Criminal Procedure (Total fine for A.2 is Rs. 6,000/-).

The learned Counsel appearing for the Petitioner/A.2 submitted that the Petitioner underwent the sentence of imprisonment imposed in C.C.

No. 4 of 2009 for a period of two years and hence, he has come forward with the present Crl.O.P. to order the above said sentences in two

cases to run concurrently. To substantiate his case, the learned Counsel appearing for the Petitioner/A.2 relied upon the decisions of Apex Court

and various High Courts and prayed for allowing this Crl.O.P.

The learned Special Public Prosecutor for CBI cases/first Respondent submitted that the Petitioner/A.2 already filed a similar application in

Crl.O.P.(MD) No. 12173 of 2009 and it was heard in length and subsequently, the learned Counsel appearing for the Petitioner/A.2 sought

permission of this Court to withdraw the said Crl.O.P. and accordingly, the said Crl.O.P.(MD) No. 12173 of 2009 was dismissed as withdrawn.

Now, the Petitioner has suppressed the above fact and has come forward with the present Crl.O.P. for the same relief and hence, the

Petitioner/A.2 is not entitled for the relief stated supra.

Learned Special Public Prosecutor further submitted that as against the conviction and sentence passed by the Special Court for C.B.I. Cases,

Madurai, the Petitioner has preferred Criminal Appeals before this Court, which were dismissed, confirming the conviction and sentence passed by

the trial Court, against which, the Petitioner/A.2 preferred an Special Leave Petitions before the Supreme Court, which were also dismissed and

hence, the Petitioner/A.2 is not entitled to invoke the provisions of Section 427 Cr.P.C by filing this Crl.O.P. u/s 482 Code of Criminal Procedure

To substantiate his arguments, learned Spl.P.P. relied upon the decision of the Supreme Court in the case of "" M.R. Kudva Vs. State of Andhra

Pradesh, and prayed for dismissal of the present Crl.O.P.

Heard the learned Government Advocate (Criminal Side) appearing for the second Respondent-Superintendent, Central Prison, Madurai, on

the above aspects.

It is true that this Court has passed an order dated 30.07.2010 in this Crl.O.P. and ordered that the sentence imposed in C.C. No. 4 of 1999,

dated 30.03.2001 on the file of the Principal Special Judge for CBI Cases, Madurai and C.C. No. 5 of 1999, dated 30.03.2001 on the file of the

Principal Special Judge for CBI Cases, Madurai, shall run concurrently.

Now, I am inclined to consider the arguments advanced by the learned Special Public Prosecutor for C.B.I. cases/first Respondent.

A perusal of the earlier order passed in Crl.O.P.(MD). No. 12173 of 2009, shows that the same had been dismissed as withdrawn on

11.3.2010, wherein, it has not been mentioned that the same has been dismissed after fully hearing both sides. But, as per Article 21 of the

Constitution, personal liberty will not be curtailed merely because of non-mentioning of the dismissal of the previous application in the present

Crl.O.P.

At this juncture, it is appropriate to consider the decision relied upon by the learned Special Public Prosecutor for C.B.I. Cases/first

Respondent, in the case of "" M.R. Kudva Vs. State of Andhra Pradesh, , wherein, the Apex Court held as follows:

However, 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. The appeal being devoid of any merit is dismissed.

In this regard, it is appropriate to quote Section 427 of the Code of Criminal Procedure reads as under:

Section 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 u/s 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.

In the decision rendered by the learned Counsel appearing for the Petitioner-A.2, reported in State of Punjab Vs. Madan Lal, , it has been

held by the three-Judge Bench of the Apex Court that the Punjab and Haryana High Court has come to the correct conclusion and dismissed the

application stating that there is no infirmity or illegality in the order and in the said citation, the accused has filed an appeal in Crl.A. No. 529 of

2004 before the Supreme Court against the order passed by the High Court in the petition u/s 482 Code of Criminal Procedure and while

considering the facts of the case, the petition was filed before the High Court to the effect that the quantum of punishment awarded was to run

concurrently in respect of the three convictions and sentences were imposed, and the said petition u/s 482 Code of Criminal Procedure was

allowed by the High Court, and the conviction is in respect of the offence u/s 138 of Negotiable Instrument Act. The High Court has directed that

the sentences imposed by the learned Additional Sessions Judge, Ludhiana and Sub-Divisional Judicial Magistrate, Khanna were to run

concurrently.

But the earlier decision of the Supreme Court reported in M.R. Kudva Vs. State of Andhra Pradesh, consisting of two Honourable Judges, is

squarely applicable to the facts of the present case. The Petitioner/A.2 has not made any pleading either before the trial Court or before this Court,

or not even before the Apex Court seeking the benefit u/s 427 Code of Criminal Procedure for ordering the sentences to run concurrently. So, the

petition u/s 482 Code of Criminal Procedure itself is not maintainable, as per the dictum laid down by the Apex Court in the said judgment

reported in M.R. Kudva Vs. State of Andhra Pradesh, . The said factual position has been brought to the notice of this Court only by the learned

Spl.P.P. appearing for the first Respondent/CBI, during the course of arguments before this Court. Hence, I am of the view that the Petitioner/A.2

is not entitled to invoke the provisions of Section 482 Code of Criminal Procedure by filing the present Crl.O.P. seeking the benefit of Section 427

Code of Criminal Procedure for running the sentences concurrently in the aforesaid two C.C. Nos. 4 and 5 of 1999, which were disposed of by

the trial Court, by two separate judgments dated 30.3.2001. Therefore, the Crl.O.P. is liable to be dismissed as not maintainable.

Therefore:

This Crl.O.P. is dismissed. The earlier order dated 30.7.2010 passed in this Crl.O.P., is set aside.