Sivanandan vs State Of Kerala

Sl. No.,Case No.,Term of sentence,Date of judgment,Set off

1,"C.C.No.759/2013 JFCM North

Paravur","2 years Rs.3000/-

ID 9 months",29.12.2007,Not recorded

2,"C.C.No.909/2004 JFCM North

Paravur","2 years Rs.3000/-

ID 9 months",29.12.2007,Not recorded

3,"C.C.No.605/2007 JFCM North

Paravur",1 year No fine,11/01/08,"1 4 0 days

(24.08.2007 â€

10.01.2008)

4,"C.C.No. 754/2007 JFCM North

Paravur","2 years Rs.3000/-

ID 9 months",10/01/08,"1 4 0 days

(24.08.2007 â€

10.01.2008)

5,"C. C. No . 1434/2007 JFCM,

Perumbavoor","1 year Rs.500 5

days",24.05.2008,"2 5 0 days

(17.09.2007-

23.05.2008)

6,"C.C.No. 770/2007 JFCM-II, Ernakulam",2 years No fine,29.03.2008,"1 9 6 days

(15.09.2007-

28.03.2008)

7,"C.C.No. 646/2007 JFCM North

Paravur","3 years Rs.3000 ID

3 months",23.06.2008,"2 5 0 days

(17.10.2007-

22.06.2008)

8,"C.C.No. 647/2007 JFCM North

Paravur","3 years Rs.8000/-

ID 9 months",23.06.2008,"3 0 4 days

(24.08.2007-

22.06.2008)

9,"C.C.No. 645/2007 JFCM North

Paravur","3 years Rs.8000/-

ID 9 months",23.06.2008,"2 8 0 days

(17.10.2007 â€

22.06.2008)

10,"C.C.No. 644/2007 JFCM North

Paravur","3 years Rs.5000/-

ID 6 months",23.06.2008,"2 8 0 days

(17.10.2007 â€

22.06.2008)

11,"C.C.No. 1218/2003 JFCM, Aluva","1 year Rs.10000/-

ID 4 months",24.09.2009,"Not mentioned in

the warrant

12,C.C.No. 28/2005 JFCM North Paravur,5 years No fine,04/11/09,"3 4 9 days

(20.11.2008 â€

3011.2009)

13,"C.C.No. 1642/2009 JFCM, Aluva",1 year No fine,12/08/10,"1 0 8 4 days

(24.08.2007 â€

11.08.2010)

14,"C.C.No. 2098/2008 JFCM, Thrissur",6 months No fine,30.09.2010,"7 2 6 days

(04.10.2008 â€

29.09.2010)

court is the totality of the sentences. The maximum sentence awarded in one case against the same accused is relevant while giving concurrent,,,,

sentence in another case. Only in appropriate cases, considering the facts of the case, can the court make the sentence concurrent with an earlier",,,,

sentence imposed exercising powers under Section 427 read with Section 31 of the Cr.P.C.,,,,

For granting the benefit of set off under Section 428 of the Cr.P.C., the pretrial detention of the accused has to be in the same case and not in a",,,,

different case as is held by the Apex Court in State of Maharashtra v. Najakat Alia Mubarak Ali, 2001 KHC 642 : AIR 2001 SC 2255.",,,,

In the instance case, the petitioner had pleaded guilty in all the cases and in consequence to that he was awarded different sentences ranging from",,,,

six months to five years of imprisonment and also fine. The petitioner has been in custody now for a period of more than 15 years. A report was filed,,,,

by the Superintendent of Central Prison & Correctional Home, Viyyur stating that after adjusting the set off granted by the court, the remaining",,,,

sentences will have to run consecutively and under those circumstances the petitioner has not completed his term of imprisonment in all the cases.,,,,

In Ammavassai & another v. Inspector of Police, 2000 KHC 1708 : AIR 2000 SC 3544, the Apex Court considered several sentences imposed",,,,

on the same accused for offences under Section 395 of the I.P.C. where he was sentenced to undergo rigorous imprisonment for 7 years in each of,,,,

the cases. If the benefit conferred under Section 427 of the Cr.P.C. is not extended to him, he may have to undergo imprisonment for a total period of",,,,

28 to 35 years in jail and if the benefit is allowed, the accused therein would be out after serving 7 years awarded in one case. Considering the totality",,,,

of the case and the gravity of the offence committed, the Hon'ble Apex Court held that if the appellant would undergo a total period of 14 years of",,,,

imprisonment in respect of all the convictions passed against them that will be sufficient to meet the ends of justice and accordingly after 14 years they,,,,

were directed to be set free.,,,,

In V.K.Bansal v. State of Haryana & others, 2013 (3) KHC 34 : AIR 2013 SC 34,4 t7he Apex Court had held that when",,,,

dishonour of cheque and conviction was awarded to an accused in more than one cases, the court has to exercise the discretion which would benefit",,,,

the accused in cases where the prosecution is based on a single transaction, even if different complaints have been filed in respect of the same",,,,

transaction and order the sentence to run concurrently. The Apex Court had again the opportunity to consider the scope of Section 427 of the Cr.P.C.,,,,

In Benson v. State of Kerala, 2016 KHC 6678w herein this Court had refused to interfere in the case where the accused was sentenced to",,,,

imprisonment in different theft cases holding that it was a discretion of the trial court to exercise jurisdiction under Section 427 of the Cr.P.C. The,,,,

matter was taken to the Hon'ble Supreme Court and the Apex Court held that the normal rule regarding consecutive running of sentence is subject to,,,,

a qualification and it is within the power of the court to direct that the subsequent sentence shall run concurrently with the previous sentence and,,,,

referring to the decision in V.K.Bansal (supra) it was observed that the maximum sentence in respect of the crimes in which the accused therein was,,,,

found guilty was two years rigorous imprisonment and the said crimes were committed of the same date and considering these facts, the Apex Court",,,,

directed that sentences imposed in the said cases shall run concurrently.,,,,

In most of the decisions that has been relied on by the learned Counsel for the petitioner, the accused were convicted for offences punishable",,,,

under Section 138 of the NI Act and cheques were issued during a short period, which were all dishonoured, attracting an offence under Section 138",,,,

of the NI Act. It is only in Benson v. State of Kerala (supra) that the Hon'ble Supreme Court considered that the petitioner is involved in several cases,,,,

and after taking into consideration the entire facts and circumstances, it was observed that the petitioner would have to undergo imprisonment for",,,,

three decades in case the sentences were to be undergone consecutively. And therefore, the petitioner was allowed the benefit under Section 427 of",,,,

the Cr.P.C. and it was ordered that in four cases, where the imprisonment was only for two years, the sentences shall run concurrently.",,,,

In the instant case, the facts are almost similar and the petitioner had already undergone more than 15 years imprisonment and the maximum",,,,

imprisonment that was awarded to him in one case is only 5 years in C.C.No.28/2005 on the files of Judicial First Class Magistrate Court, North",,,,

Paravur as per the table extracted above. In all the remaining cases, he is only been sentenced to lessor imprisonment. Therefore, I find that it will be",,,,

in the interest of justice if the court exercising its jurisdiction under Section 482 of the Cr.P.C. intervened to invoke the powers under Section 427 of,,,,

the Cr.P.C. The very fact that such power under Section 482 of the Cr.P.C. is vested only in the High Court is a safeguard for the power being not,,,,

abused and hence utmost care and caution is required while invoking the powers. The object of exercise of power being to prevent abuse of process,,,,

of court and also to secure the ends of justice, it follows that ends of justice are higher than the ends of mere law - Moosa v. Sub Inspector of",,,,

Police, 2006 KHC 184 (FB) .Atleast in offences coming under Section 138 of the NI Act, this Court has exercised the power under Section 482 of",,,,

the Cr.P.C. and permitted the accused convicted in another case to run consecutive sentences for the subsequent conviction. In the instant case, I find",,,,

the petitioner had not even contested the cases and had pleaded guilty, in consequence of which he was sentenced to imprisonment. He is more than",,,,

60 years old and has been in prison for more than 18 years now. Under the circumstances, exercising the jurisdiction under Section 482 of the",,,,

Cr.P.C., the Writ Petition as also the Crl.M.c. are allowed and the respondents are directed to release the accused forthwith recording that he has",,,,

undergone the sentence in all the crimes in which he was convicted.,,,,