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Mani and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1983CriLJ1262
AppellantMani and anr.
RespondentState of Kerala
Cases ReferredP. K. Tejani v. M. R. Dange
Excerpt:
.....held that when all the remedies available under the law are exhausted, an application to the high court asking the sentence passed in four different cases to be made to run concurrently, is not maintainable, because such a petition is in effect for review of the orders already passed by the trial court as well as by the appellate court. if a direction under section 31(1) cannot be issued after the judgment is pronounced on a motion made by the accused, i fail to see how the power under section 427(1) can be issued after the pronouncement of the subsequent judgment. is now well-settled that inherent power is not to be invoked to serve purposes for which there are express provisions of law and also where there is an express provision barring a particular remedy. there is another..........as to the circumstances under which a court should normally exercise the discretion to award the sentences concurrently rather than consecutively. the cr. p.c. does not specify the situations under which a court would be justified in directing sentences to run concurrently though the provisions of the cr. p.c. indicate that it is open to the court to direct the sentences to run concurrently. this is a question which we will take up for decision in this case. the case will come up posed after a month. learned counsel sri s. sivaraman has agreed to argue the matter as amicus curiae. 2. the questions which relate to sentencing process were argued over a wide canyass really a review of jural perspectives by both the learned public prosecutor and mr. s. sivaraman, advocate as amicus curiae......
Judgment:

Chandrasekhara Menon, J.

1. These cases had earlier come up for hearing before one of us (the Acting Chief Justice) and Justice Vadakkel when the court passed the following order:

An interesting question which, though of daily occurrence, does not appear to have been posed in this form arises for decision before us on applications by two prisoners in the Cannanore Central Jail. They were charged in C. C. No. 2/82 of the Judicial First Class Magistrate's Court, Chalakudy as also C. C. No. 6/82 of that Court. They were convicted in both the cases and the entences have not. been directed to run concurrently. Their prayer in the petitions is that the sentences may be directed to be run concurrently. This necessarily gives rise to the question as to the circumstances under which a court should normally exercise the discretion to award the sentences concurrently rather than consecutively. The Cr. P.C. does not specify the situations under which a court would be justified in directing sentences to run concurrently though the provisions of the Cr. P.C. indicate that it is open to the court to direct the sentences to run concurrently. This is a question which we will take up for decision in this case. The case will come up posed after a month. learned Counsel Sri S. SivaRaman has agreed to argue the matter as amicus curiae.

2. The questions which relate to sentencing process were argued over a wide canyass really a review of jural perspectives by both the learned Public Prosecutor and Mr. S. Sivaraman, Advocate as amicus curiae. We think we should express our thanks to both the counsel who enabled us to make an analysis of the present day trends in sentencing which may be of some help to the courts below in the matter of deciding on the punishment, that should be imposed.

3. It will be useful to refer to what a learned author of considerable repute, R. M. Jackson, Emeritus Downing professor of the Laws of England in the University of Cambridge says of the English practice in respect of consecutive and concurrent sentences in his work 'The Machinery of Justice in England' (Seventh Edition) pages 378, 379 and 380:

A person may be tried and convicted of more than one offence and the court will then have to consider what to do in respect of each conviction. Punishments are normally cumulative: thus there may be a fine on each conviction or a fine and imprisonment, but obviously imprisonment renders conditional discharge or probation nugatory. In the case of prison sentences, the court may make them consecutive or concurrent Consecutive prison sentences may be used to build up what the court regards as a sufficient total but most, indictable offences have such a substantial maximum punishment that, there is no need to do that. Theft tried on indictment carries ten years, but it is most unlikely that if, for example, there are convictions of four offences the court would want to use consecutive sentences to make the total more than five. It is more likely that the court would decide that, say, two years in all should be given, and arrange the sentences accordingly; four sentences of six months consecutive would show that each offence was regarded as less serious than if there were four sentences of two years concurrent, but that is no more than a broad indication.

Taking other offences into consideration, it often happens that when a person is charged with one offence he admits the commission of other offences It would be possible to make each of these other offences the subject of a charge and to prosecute in respect of them all, but that would entail delay and considerable expenditure in preparing for a trial. On the other hand, it is regarded as most important that when an offender is dealt with there shall be nothing left outstanding: in particular, a man leaving prison should have a clear start again in life and should not have to face further criminal proceedings. Hence the practice is to prosecute on a charge or charges in which the case is ready and for the defendant to ask the court to take into consideration in the sentence the other offences. The other offences are listed, and the Judge must ask the defendant personally whether he admits them and wishes them taken into consideration, When a case is taken into consideration this does not constitute a legal bar to a subsequent prosecution, but he is ordinarily safe from such prosecution. The practice depends upon the fact that, the minimum of punishment that can legally be imposed on indictment is normally much more than the court would want to impose. The common offences to be considered are theft, obtaining property by deception and burglary, with maximum penalties for a single offence ranging from ten years to life imprisonment, and the maximum is bi enough to cover both the offence for which there is ' a conviction and the offences to be taken into consideration. If it should happen that, the maximum available is regarded as insufficient, then the court should refuse to take other offences into consideration.'

4. The relevant provision in the Cr. P.C. 1973 is Section 427 (corresponding to Section 397 in the Code of 1898):

427 (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.

5. The general rule is that a sentence commences to run from the time of its being passed but this section creates an exception in the case of persons already undergoing imprisonment and postpones the operation of the subsequent sentence until after expiry of the previous sentence.

In re Krishnan and (1869) 3 Bang LR 50; Sobrai (1873) 20 Suth WR 70(Cal). Thus as in England, punishments are normally made cumulative but the court is Riven a discretion to make the subsequent sentence run concurrently with such previous sentence. Naturally the discretion given to the court, can only be a judicial discretion. The discretion can be exercised at the appellate or re-visional stage also. See Nagappa Vvan-kappa v. Emperor AIR 1931 Bom 529 (1) : 1932-33 Cri LJ 77: Baijnath v. State : AIR1961Pat138 .

6. No doubt there is some controversy whether the direction that the sentences be run concurrently can be given under Section 482 of the Cr. P.C. 1973 (corresponding to Section 56/A of the Code of 1898) inherent powers of the High Court after the disposal of the cases. A Full Bench of the Allahabad High Court in Mulaim Singh v. State 1974 Cri LJ 1397 had considered the question whether the court is competent to issue directions of the type mentioned in Section 427 of the Cr. P.C. after the disposal of the cases. The Allahabad High Court held:

Obyiously the stage for exercising the discretion is when the Court, records the conviction and inflicts punishments on the accused. The discretion under Section 397(1) can also be exercised at the stage when the court records the subsequent conviction. The language employed in Section 397 does not indicate that the discretion to direct that the sentence under the subsequent, conviction shall run concurrently with the previous sentence can be exercised at any subsequent, stage.

Regarding the question whether a subsequent direction that the sentences shall run concurrently would amount, to review or alteration of judgment, the Allahabad High Court said in that case (at P. 1399):

It is not, only the order of conviction but also the sentence awarded and the directions given in that behalf that constitute integral parts of the judgment and cannot be reviewed or altered after the judgment has been pronounced. The direction contained in a judgment, with regard to the sentences imposed on the accused, i.e. whether they shall run concurrently or consecutively is as much an integral part of the judgment as his conviction consequent upon a finding regarding the guilt of the accused. In a case where there is no such specific direction, the law would take its course and. as pointed out earlier, the general rule embodied in the Code is that the sentences would run consecutjvely. This principle is applicable both in the case of trial and appellate courts. The prohibition against reviewing or altering the judgment is equally applicable to both trial and appellate courts. The word

'alter' means 'to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing into something else'. A change in the 'course' or 'arrangement' of the sentence would certainly amount to an alteration of the sentence which forms a part of the judgment. We are of the opinion that neither the trial court nor the appellate court is competent to exercise the discretion conferred under Section 397(1) of the Code after the judgment has been signed.

However regarding competency of the High Court to issue direction in the matter under Section 482 that court was of opinion:. It would be competent for the High Court in exercise of its inherent power to direct that the sentence under a subsequent conviction, to imprisonment may run concurrently with the previous sentence even if the stage for exercise of discretion under Section 397(1) of the Code is over in circumstances, where it would serve any of the three purposes mentioned in the section i. e. to give effect, to any order under the Code or to prevent the abuse of the process of the court or otherwise to secure the ends of justice.

7. Justice Raj Kishore Prasad said in Baijnath v. State : AIR1961Pat138

28. There is, however, no conflict between Section 561-A and Section 369, Section 369 does not affect any powers inherent in the Court, as there never has been an inherent power in the High Court to alter or review its own Judgment in a criminal case once it has been pronounced and signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits. Consequently, it cannot be said that Section 561-A either modifies the provisions of Section 369 or clothes the High Court with any fresh powers.

29. An order made by a Court under Section 397(1) as to the commencement of the sentence need not be a part of its judgment, and may, therefore, be made by the Court passing the subsequent sentence after the judgment is signed.

30. An order passed under Section 561-A also would not be a part of the judgment of the Court, but it would be a separate order, which can, therefore, be passed after the judgment is signed.

31. In the present case, there is no question of either altering or reviewing the judgment of this Court. The judgment will stand as it is; and, the order passed under Section 561-A would be a separate order and complete by itself.

32. It was held in AIR 1927 Lah 139 : 1927-28 Cri LJ 239, by Broad,way, J., sitting singly, that Section 561-A is in no way limited or governed by Section 369 and the High Court has power to reconsider the question of sentence when the ends of justice required it. Here, there is no question of Section 561-A overriding the specific provision of Section 369.

33. A similar view was also taken by Nanavutty J., sitting singly, of the Oudh Chief Court in AIR 1928 Oudh 402: 1928-29 Cri LJ 893, in which the just mentioned Lahore decision was relied upon.

34. For these reasons, in my opinion, Section 369 of the Code is no bar to the exercise of its inherent, jurisdiction by this Court under Section 561-A of the Code, if. of course, otherwise, it is satisfied that it should do so.

35. I may now refer to a decision of the Madras High Court in AIR 1958 Mad 452: 1958 Cri LJ 1297. In that case, Basheer Ahmed Syeed J.. sitting singly held that when all the remedies available under the law are exhausted, an application to the High Court asking the sentence passed in four different cases to be made to run concurrently, is not maintainable, because such a petition is in effect for review of the orders already passed by the trial court as well as by the appellate Court. If I may say so with respect, his Lordship did not take into consideration Section 561-A, which provides specifically for such a case. I, therefore, respectfully express my dissent to the view taken in that case.

36. A Division Bench of the Calcutta High Court, however, in : AIR1955Cal632 . in similar circumstances, held that the High Court has power to order that the sentences passed on different dates in respect of different convictions of the accused by courts other than the High Court, should run concurrently. I express my cordial assent to the view taken by the Calcutta High Court, and, in my opinion. it represents the correct view of the law.

(The reference is to the sections under the old Code).

8. The Andhra High Court in Venkanna v. State of Andhra Pradesh : AIR1964AP449 and the Madhya Pradesh High Court in A. S. Naidu v. State of Madhya Pradesh 1974 MPLJ 769 : 1975 Cri LJ 498 took the view that a direction that a subsequent sentence should run concurrently with an earlier sentence does not amount to alteration of sentence.

9. Justice Janaki Amma said in Bhaskaran v. State of Kerala 1978 Ker LT 6 : 1978 Cri LJ 738:

The Code of Criminal Procedure, 1973 contains distinct provisions as to the manner in which punishment should be undergone when a person is sentenced to imprisonment for more than one offence and they are contained in Section 31(1) and Section 427(1). Section 31(1) deals with sentences in cases of conviction at one trial of two or more offences. Section 427(1) deals with cases where a person, is sentenced to different terms of imprisonment, in separate trials where the sentence in one case is imposed. Under both the above provisions, the court is competent to direct that the sentences may run concurrently. A direction that the sentences for offences tried during a single trial may run concurrently is an integral part of the judgment. If that be so, a similar direction that the sentences in a later case may run concurrently with the sentence in an earlier case is also a part of the judgment. Therefore, a direction how the sentences in the two cases should run, issued subsequent to the disposal of the cases would amount, to alteration of the judgment which is barred under Section 362, Cr. P.C. If a direction under Section 31(1) cannot be issued after the judgment is pronounced on a motion made by the accused, I fail to see how the power under Section 427(1) can be issued after the pronouncement of the subsequent judgment. I am, therefore, unable to adopt the reasoning in A. S. Naidu v. State of Madhya Pradesh 1974 MPLJ 769 : 1975 Cri LJ 498 and I hold that the direction referred to should be given at the latest when the subsequent judgment is pronounced.

The further question is whether the inherent power of the High Court can be exercised after the disposal of the cases to direct that the terms of imprisonment in two cases may run concurrently. So far as this is concerned, it. is now well-settled that inherent power is not to be invoked to serve purposes for which there are express provisions of law and also where there is an express provision barring a particular remedy. The Cr. P.C. forbids review or alteration of judgment once it. is signed. If Section 427(1) alone stands, direction regarding mode of suffering imprisonment can be made either at the time of pronouncing the later judgment or some time afterwards. But in the latter case, it offends Section 362 of the Code. It follows that the power should be exercised at the time of pronouncing the later judgment and not on a motion made thereafter. In other words, a subsequent motion is barred under Section 362 of the Code. A person who is afforded an opportunity to represent his case and get relief, and who omits to avail of it at the proper time should not be allowed to approach the court on a later date for the' same remedy by invoking the inherent power of the High Court.

There is another reason also why the inherent power should not be exercised in a case like the present, one. The inherent power is available only to the High Court while the directions under Sections 31(1) and 427(1) can be issued both by the trial Court and also by the appellate or provisional Court. In cases where no appeals or revision petitions are filed or where the appeals and the revision petitions are disposed of by courts other than the High Court, there is no question of a direction being issued under Section 31(1) or Section 427(1) subsequent to the disposal of cases as that would amount to alteration of the judgment. It does not stand to reason that an additional privilege of approaching the Court under the inherent power should be available in cases disposed of by the High Court where the same remedy is not available when cases are disposed of under similar circumstances by subordinate courts.

We are inclined to agree with the view expressed on both the aspects of the matter, by the Allahabad High Court in Mulaim Singh v. State 1974 Cri LJ 1397 (FB).

10. The real question that arises in the case is when can the court give adirection in its discretion that, the subsequent, sentence should run concurrently with the former sentence. It will not be possible to Hive very positive directions with regard to that. It should depend on the facts of each case, the nature or character of the offences committed, the prior criminal record of the offender, his age and sex etc. AsJustice Krishna Iyer had said in Mohammed Giasuddin v. State of A.P. (1977) 3 SCC 287 at p. 289 : 1977 Cri LJ 1557 at P. 1559

The drawback of our criminal process is that they are built on the bricks of impressionist opinions and dated values, ignoring emperical studies and deeper researches... the human Article of sentencing remains a retarded child of the Indian Criminal System.

When he was a Judge of the Kerala High Court, he had said in Shivaprasad v. State of Kerala 1969 Ker LT 862:

Criminal trial in our country is largely devoted only to finding out whether the man in the dock is guilty. It is a major deficiency in the Indian system of criminal trials that the complex but important sentencing factors are not given sufficient, emphasis and materials are not presented before the Court to help it for a correct judgment in the proper personalised, punitive treatment suited to the offender and the crime.

11. It is certainly true as the Supreme Court has said in Ram Narain v. State of U.P. : 1973CriLJ1187 : 1973CriLJ1187 :. the broad object of punishment of an accused found guilty in progressive civilized societies is to impress on the guilty party that commission of crime does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs.

12. The Law Commission speaking about a proper sentence stated:

A proper sentence is a composite of many factors including the nature of the offence, the circumstances extenuating or aggravating the offence, the prior criminal record of the offender, the background of the offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of the offender, the possibilities of return to normal life, the possibility of treatment and training of the offender, the possibility that this sentence may serve as a deterrent...

13. The difficulties in the matter of giving a proper sentence is well stated by the Supreme Court if we may say so with respect, in P. K. Tejani v. M. R. Dange : 1974CriLJ313 :

Finally comes the post-conviction stage where the current, criminal system is weakest. The courts approach has at once to be socially informed and personalised. Unfortunately the meaningful collection and presentation of penological facts bearing on the background of the individual, the dimension of the damage, the social milieu and what not, these are not provided in the Code and we have to make intelligent hunches on the basis of materials adduced to prove guilt. In this unsatisfactory situation which needs legislative remedying we go by cerain broad features.

14. Lawrence M. Friedman of Stanford University in his book 'Law and Society An Introduction' states:

In loose, ordinary speech, we are apt to say that the, punishment for say theft, is 'a year in prison'. But the real punishment is more complicated than mere loss of freedom for a year. First, the thief will be hunted and arrested, may go through a trial, and will be questioned, harassed, and shamed in many ways. The thief may lose a job. and perhaps reputation and spouse. There are prisons and prisons: some may inflict far more punishment (rape, bad food, cruel guards) than others. In any event, prison is not house arrest, not merely a place where people cannot freely come and go. When finally set free, the thief may continue to be punished. Now the thief is a person with a 'record' and may find it hard to get a job or move into 'straight' society. All this is part of the 'punishment' for theft. How people perceive these side punishments is, of course, also variable.

The sentencing stage should not be treated as a mere matter of formality In the matter of sentencing a person, the courts will have to take note of the fact that human behaviour is the product of antecedent circumstances. The measures employed to treat a convicted offender should serve a therapeutic function. Such measures should be designed to effect changes in the behaviour of the convicted person, the interest of his own happiness, health and satisfaction and the interest, of social defenses. A person who is sincerely trying to rehabilitate himself ought not to be demoralised.

15. In these cases, the petitioners have been convicted in C. C. No. 6 of 1982 to undergo rigorous imprisonment for three years under Section 457 read with Section 34, I.P.C. and to undergo rigorous imprisonment for two years under Section 379. I.P.C. read with Section 34. I.P.C. The sentences in respect of the different offences are to run concurrently. They had been charged earlier for similar offences in C. C. No. 2 of 1982 and sentenced to three years rigorous imprisonment. The offences in the two cases were committed in close sequenece and the two accused were apprehended on 18-1-1982. After arrest, the conviction in the first case was on 16-3-1982 and the second case on 28-4-1982, Both the accused seem to have a family to support and probably difficult circumstances might have resulted in these persons taking to a life of crime. In spite of their criminal record, the society still have an obligation to convert them into useful citizens. A rather prolonged jail life may not be conducive for that.

In the circumstances we would direct that the sentences imposed on the petitioners in C. C. 2 of 1982 and C. C. 6 of 1982 would run concurrently.


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