O.P. Jayakumar vs State by the Superintendent of Prison, Central Prison, Madurai

R. Mala, J.—The petitioner approaches this Court with a prayer to order the sentence passed in C.C. Nos. 97/2009, 96/2009, 95/2009, 98/2009 and 100/2009 dated 23.11.2009 on the file of the Judicial Magistrate Court, Kodaikanal, to run concurrently and direct the first respondent to release the petitioner upon his completion of concurrent sentence.

Heard both sides.

The learned counsel appearing for the petitioner would submit that the petitioner was a convicted person and he was convicted for the following cases:

(i) In C.C. No. 95 of 1999, the learned Judicial Magistrate, Kodaikanal found the petitioner/Accused guilty for the offence under z 379 I.P.C. and convicted and sentenced him to undergo 6 months rigorous imprisonment and the sentence already undergone by the accused shall be given set off.

(ii) In C.C. No. 96 of 1999, the learned Judicial Magistrate, Kodaikanal found the petitioner/Accused guilty for the offence u/s 379 I.P.C. and convicted and sentenced him to undergo 6 months rigorous imprisonment and the sentence already undergone by the accused shall be given set off.

(iii) In C.C. No. 97 of 1999, the learned Judicial Magistrate, Kodaikanal found the petitioner/Accused guilty for the offence u/s 379 I.P.C. and convicted and sentenced him to undergo 6 months rigorous imprisonment and the sentence already undergone by the accused shall be given set off.

(iv) In C.C. No. 98 of 1999, the learned Judicial Magistrate, Kodaikanal found the petitioner/Accused guilty for the offence u/s 379 I.P.C. and convicted and sentenced him to undergo 6 months rigorous imprisonment and the sentence already undergone by the accused shall be given set off.

(v) In C.C. No. 100 of 1999, the learned Judicial Magistrate, Kodaikanal found the petitioner/Accused guilty for the offence under Sections 457 and 380 I.P.C. and convicted and sentenced him to undergo 6 months rigorous imprisonment each for the each offence and the sentence already undergone by the accused shall be given set off.

The learned counsel appearing for the petitioner would submit that the petitioner spent the imprisonment sentence passed in C.C. No. 95 of 2009 for a period of six months and hence, the petitioner has come forward with the present application to order the above said sentences in five cases to run concurrently. He would further submit that in C.C. No. 100 of 2009, the petitioner was convicted for the offence under Sections 457 and 380 I.P.C., but the said sentences were not ordered to run concurrently of that sentence also. To substantiate his case, the learned counsel appearing for the petitioner would rely upon the decisions of Apex Court and various High Courts and he prayed for the allowing of the petition.

The learned Government Advocate (criminal side) appearing for the respondent would submit that the petitioner is not entitled to order the sentences to run concurrently.

It is appropriate to consider the decision rendered by three Judges reported in 2009 CDJ SC 462, (State of Punjab v. Madan Lal), wherein, it has been held that 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 passed by them. In the said citation, the appellant/accused has filed a petition u/s 482 of Criminal Procedure Code, which was taken on file in Crl. A. No. 529 of 2004 by the Supreme Court. In that, while, considering the facts of the case, the application is filed to the effect that the quantum of punishment awarded to run concurrently in respect of the three convictions and sentences imposed allowed by the High Court, where the conviction is in terms of Section 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.

Here, the case on hand, all the occurrence have been taken place on 05.09.2009 and case have been registered in crime Nos. 615 to 619 of 2009 and charge sheets have also been filed on the same day and the learned Judicial Magistrate taken cognizance on the same day and taken on file in consecutive numbers in C.C. Nos. 95 to 98 and 100 of 2009 and ultimately, all the case have been decided by the learned Judicial Magistrate, Kodaikanal only on 23.11.2009. In the said judgments, there is no evidence to show whether the petitioner has pleaded for the order of all the sentences to be run concurrently. Now, the petitioner has approached this Court with the present application to order all the sentence in all the cases to run concurrently. There were no appeals have been preferred by the petitioner/accused against the judgments of the learned Judicial Magistrate. In the above said situation, the said decision in 2009 CDJ SC 462, (State of Punjab v. Madan Lal) is squarely applicable to the facts of this case.

On a perusal of the record would show that the petitioner has already spent the imprisonment period i.e. six months rigorous imprisonment in C.C.No. 95 of 2009 and hence, since, the petitioner has already undergone the imprisonment period, as per the decision in 2009 CDJ SC 462 (State of Punjab v. Madan Lal), the petitioner is entitled to get the order of all the sentence to run concurrently passed in C.C. No. 95 to 98 and 100 of 2009.

It is pertinent to note that the learned Judicial Magistrate has not ordered the sentence to run concurrently passed in C.C.No. 100 of 2009 for the offence u/s 457 and 380 I.P.C. Considering the facts and circumstances of the case, this Court is of the opinion that he is also entitled to get the order of sentence to run concurrently passed in C.C. No. 100 of 2009 for the offence under Sections 457 and 380 I.P.C., and hence, this criminal original petition is liable to be allowed.

Accordingly, this criminal original petition is allowed and all the sentence passed in C.C. Nos. 95 to 98 and 100 of 2009 are ordered to run concurrently. The Superintendent of Central Prison, Madurai is directed to act in accordance with law.