Sukumaran vs State of Kerala and Another

J.B. Koshy, J.—Whether an application u/s 482 of the Code of Criminal Procedure (''the Code'', for short) claiming the benefit u/s 427 of the Code is maintainable, is the question to be considered in this case.

Section 427(1) of the Code reads as follows:

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.

In Subramanian v. State of Kerala 1983 KLT 452, this Court held that such power can be exercised in a petition u/s 482 of the Code. But in M.R. Kudva v. State of Andhra Pradesh 2007 (1) Crimes 50, the Apex Court decided otherwise and at paragraph 12 of the above judgment it was 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.

The learned Single Judge, who considered these case, nothing the above two decision, referred the following question to the Division Bench:

Does the dictum in Subramanian v. State of Kerala 1983 KLT 452 stand overruled by the observations of the Supreme Court in M.R. Kudva v. State of Andhra Pradesh 2007 (1) Crimes 50?

The learned Judge observed as follows:

It is true that the Supreme Court has not considered the question in greater detail in para-12 any many of the points/issues considered in Subramanian v. State of Kerala 1983 KLT 452 have not been considered by the Supreme Court. The crucial question then is whether the decision in Subramanian v. State of Kerala 1983 KLT 452 survives in view of the observations in M.R. Kudva v. State of Andhra Pradesh 2007 (1) Crimes 50. The matter is one of public importance. It has come to the stay as a practice in this Court for the accused facing sentences in plurality of cases to come before this Court and claim concurrency u/s 427 of the Cr.P.C. I am of opinion that it will be ideal and appropriate to refer the matter for decision of a Division Bench. Authentic pronouncement of a Division Bench is necessary in the circumstances, I feel.

A plain reading Section 427 indicates that normally sentence imposed in different crime cases run consequentially one after another and not concurrently. That is the legislative mandate. But the courts has power to make it concurrent in appropriate circumstances. The concerned court which convicts an accused has to decide the appropriate sentence to be imposed, whether the right of set off should be given and whether the sentence should be imposed concurrently to the earlier sentence (if any) imposed. If nothing is stated it is presumed that court intends that accused shall suffer the sentence consecutively. It is for the accused or for the counsel for the accused or the Public Prosecutor to bring to the notice of the trial court that earlier he was sentenced and thus, it is for the court to decide whether it should be imposed concurrently or consecutively. If the sentencing part of the trial Judge is not acceptable, it is for the aggrieved party to get it corrected in appropriate proceedings, as per law. Normally, once the conviction and sentence become final, the matter ends there. As we have already held, if it is not observed by the sentencing Judge that sentence can run concurrently, it is to be presumed that the Judge sentenced the accused to suffer the sentence consecutively. In Chacko Vs. State of Kerala, Division Bench of this Court (one of us Koshy, J was a party) held as follows:

Normally when a person is undergoing imprisonment as substantive punishment imposed in a case, is subsequently sentenced for imprisonment in another case, subsequent sentence of imprisonment shall commence at the expiration of the previous sentence for imprisonment. In other words convict has to undergo imprisonment consecutively and not concurrently unless Court specifically direct so as can be seen from Section 427(1) Cr. PC. But in the case of life imprisonment specific direction is not necessary in view of Section 427(2) as well as the nature of punishment. Imprisonment for life means imprisonment till the end of life, unless the remaining sentence is commuted or remitted by the competent authority. See Gopa Vinayak Godse v. State of Maharashtra AIR 1981 SC 600 and Maru Ram and Others Vs. Union of India (UOI) and Others, .

A confirmed conviction and sentence cannot be interfered in a proceeding u/s 482 of the Code as it will amount to altering or modifying the sentence. We cannot agree with the argument that by ordering the sentence imposed by the appellate court to run concurrently with another sentence there will be an alteration of the sentence or modification of the sentence. Section 362 of the Code reads as follows:

Court not to alter judgment. - Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

Even if the final order passed by the court in revisional jurisdiction is erroneous, it cannot be corrected by an order in a petition u/s 482. In Smt. Sooraj Devi Vs. Pyare Lal and Another, the Apex Court held that the inherent power u/s 482 cannot be invoked for reviewing an earlier order as it is specifically prohibited u/s 362. (See. State of Orissa Vs. Ram Chander Agarwala and Others, , Hari Singh Mann v. Harbhajan Singh bajwa (2001) 1 SCC 169 and State of Kerala v. M.M. Manikandan Nair AIR 2001 SCW 1847

As far as the facts of Crl. M.C. No. 582 of 2007 are concerned, there cannot be any dispute at all. The petitioner was convicted in 21 different cases by various courts. According to the petitioner, if all the sentences are to be suffered consecutively, he will have to suffer 62 years of imprisonment and he is undergoing imprisonment for the last 22 years. His various convictions were challenged before this Court in revisions and two of the revision petitions were disposed of by a learned Single Judge of this Court as can be seen in Sukumaran v. State of Kerala 1988 KLT 1018. In the above case it was specifically pleaded by the petitioner that he may be given the benefit of Section 427 of the Code. It was rejected and this Court observed as follows:

The Sessions Judge directed consecutive sentences to be concurrent. The sentencing exercise by Courts below, were made without due application of mind. It is brought to my notice that the first accused (Sukumaran) has twenty-two convictions against him. Likewise, second accused (Chellappan) has suffered ten convictions. I wonder whether the courts below were cognisant of these facts, when they directed sentences to run concurrently. There is nothing to indicate that the Trial Magistrate was aware of the facts, when he ordered concurrency. Not different, appears to be the case with the Sessions Judge.

Section 427 of the Code, directs that one sentence takes effect after the other. The sentencing Court has the discretion to direct concurrency. The investiture of such discretion, presupposes that it will be exercised on sound principles and not on impulses, whims or humour. Unprincipled exercise or unregulated benevolence, ill-behoves judicial function. Casual directions made regarding concurrency, often go against the express provisions of the Statute. Such exercises are not justified.

A learned Single Judge of this Court in Criminal Miscellaneous Case Nos. 1221 of 1999 and 1164 of 1989 filed u/s 482 of the Code allowed the sentence to undergo concurrently despite the order of the revisional court. The State filed another Criminal Miscellaneous Case and it was considered by a Division Bench of this Court on a reference. After considering the contentions and quoting Section 427(1) of the Code, it was observed as follows:

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.

It is also stated that the observations in a Crl. M.C. filed u/s 482 of the Code to run the sentence concurrently after modifying or altering the sentence per incuriam and that order is not in existence in the eye of law. Therefore, there is already a considered decision of the Division Bench holding that sentence imposed on the petitioner and confirmed in a revision cannot be altered or reviewed by making the sentence to run concurrently in a petition u/s 482 of the Code. No doubt Section 482 of the Code prescribes the inherent power of the High Court to pass orders to secure the ends of justice. Even though the powers of the court are very wide in nature, it should be used cautiously with great restraint. Wider the power, greater is the restraint. Inherent power can be exercised only to do justice according to law. It cannot be used to override express provisions as held in Arun Shankar Shukla v. State of UP. and Ors. (1999) SCC Cri. 1076. A second revision petition will not lie in view of the express bar in Section 397(3) of the Code (See Balwant Singh and others Vs. Gurbachan Singh and others, and M. Chandran Vs. B. Jagadamma and Another, . Similarly it cannot be used to get over the express provision in Section 362 of the Code.

A reading of Section 427 of the code also will show that the policy of the legislature is that the sentencing should be done normally consecutively. Only in appropriate cases, considering the facts of the case, the court can make the sentence concurrently with an earlier sentence imposed. That is a part of the sentencing job and it cannot be done in a petition filed u/s 482 of the Code. The Andhra Pradesh High Court in Gandikota Narasaiah Vs. Superintendent, Central Prison, Warangal and another, held that when three cases of dacoity were committed by the accused during the period of two years, a direction that the sentence shall run concurrently will be noting but giving licence to professional dacoits. A Full Bench of the Andhra Pradesh high Court in Mulaim Singh Vs. State, it was held that neither the trial court nor the appellate court is competent to exercise the discretion u/s 397 of the code after the judgment has been signed. Then, it is all the more difficult u/s 482. What cannot be done directly cannot be done by dubious methods. In Mukhtiar Singh Vs. The State and Others, and Rajaram Takiri Vs. State of Orissa, , it was held that Section 427 cannot be invoked in a petition u/s 482. Similar view was expressed by the Delhi High Court in Gapal Dass Vs. The State, . If different offences are committed in a single transaction, courts usually direct the sentence to run concurrently. The Apex Court in Mohammed Akhtar Hussain v. Assistant Collector of Customs 1984 Cri. LJ 283 held that when there are different transactions and different offences and cases decided by different judgments, normally sentence shall run consecutively. It is true that in Subramanian v. State of Kerala 1983 KLT 452 it was held that Section 482 can be used for giving benefit u/s 427 and that was accepted by the Full Bench of the Madhya Pradesh High Court in Sher Singh Vs. State of M.P., . In Subramanian''s case, principles regarding how sentence is to be awarded in a given case were reiterated. But these principles are applied when a Judge is asked to decide the question of sentence and not for conferring jurisdiction in a petition u/s 482 to consider the application of Section 427 to the sentence awarded by the appellate court or revisional court. The observation in paragraph 12 of the judgment of the Supreme Court quoted earlier is very clear that if the sentence is confirmed in appellate jurisdiction, court cannot order by exercising the powers u/s 482 of the Code, to suffer sentence concurrently by virtue of Section 427 of the Code. These observations are not confined to the facts of that case and it is clear that by the dicta of the Supreme Court in Kudva''s case (supra), Subramanian''s case (supra) automatically stands overruled. The Apex Court decision is binding under Article 141 of the Constitution as held by the Apex Court in Sujatha v. Jagadeesh 2002 (1) KLT 581 FB. In view of the Apex Court decision in Kudva''s case (supra), decision in Subramanian''s case is no longer good law. In any event, as far as the facts of this case are concerned, a revisional court considered the matter and found that the sentence imposed shall run consecutively and not concurrently and another Division Bench also held that in a petition filed u/s 482 of the Code, sentence cannot be made concurrently. Therefore, this petition is not maintainable.

It is submitted that the health condition of the petitioner has become very bad and he is 59 years old. The Public Prosecutor submitted that for his treatment he has already referred to the Ayurveda Hospital. We also consider the observations made by a Division Bench of this Court on 26-7-1994 in Crl. M.C. No. 566 of 1993 and connected cases by the same petitioner, wherein after considering the contentions of the petitioner regarding the inhuman conditions in the jail and the difficulties experienced by the petitioner, a Commission was appointed and after referring the Commission Report it was observed as follows:

One prisoner by name Mr. C.R. Sukumaran (C. 4277) attracted our attention on the basis of the complaints from the staff and other prisoners. The complaint is that even though he is a convict in 23 cases for theft, robbery, rape, etc. with a total term of punishment of 67 years, this Honourable Court without being appraised of the true facts converted his jail terms into one concurrent punishment for 6 years, in crl. M.C. 1144 of 1989. The staff supplied the details on a sheet of paper, which is enclosed in the sealed cover as Appendix. The prison authorities told us that almost in all these cases and several others, this prisoner committed theft and rape together. In one case, a very beautiful and young, and the only daughter of a Doctor was raped before her parents after they were tied up. Only that Doctor complained about rape, and the prisoner got the conviction. On enquiry it is understood that the girl, now in her late 20''s is still unmarried and is attached to a nunnery. The order of concurrence has caused the heartburn of discrimination to the other prisoners and even the staff. The prisoner is healthy and hefty and poses himself a hazard to the society. One of the worst things about him is that this prisoner has a group around him committing forceful sodomy and other acts of cruelty, after brutally assaulting young new prisoners. A few days previous to our visit one young prisoner was not prepared to go on release because he feared that he would be killed by this dreaded Sukumaran and his friends. It seems urgent that this Honourable Court reconsider the decision in Crl. M.C. No. 1144/1989.

In view of the above facts, even if Section 482 is applicable, discretionary jurisdiction cannot be exercised. In any event, Section 482 cannot be invoked by the petitioner to claim benefits u/s 427 of the Code.

With regard to Crl. M.C. No. 1428 of 2007, it is submitted that the petitioner got benefits from the revisional court and the matter has become infructuous.

Crl. M.C. 482 of 2007 is dismissed. Crl. M.C. 14208 of 2007 is also dismissed as it is submitted that it has become infructuous.