The duty of the court to give effect to enacted legislation and the need for sound principles in exercising discretion for concurrent sentences.

1. Petitioner in Crl. R.P. 134 of 1988 is the first accused in C.C. 150 of 1986 on the file of judicial Magistrate of First Class, Kodungallur, while petitioner in Crl. R.P. 233 of 1988 is the second accused therein. Petitioners challenge the conviction and sentence imposed on them. In Crl. R.C. 102 of 1988, the aforesaid petitioners were directed to show cause, why the sentence imposed on them should not be enhanced.

2. Courts below found petitioners guilty of offences under S.457, 461 and 392 read with S.34 IPC, on the charge that they in furtherance of their common intention, committed lurking, house trespass and robbery on the night of 29-12-1984. pw. 2-wife of pw. 1, was sleeping in her room with her sister-in-law. She woke up and switched on the light and saw the first accused standing near her bed, with a dagger pointed at her. She would say that, the second accused was also present, armed with a dagger. A1 asked Pw2 to switch off the light, and then she was taken to another room by both the accused. They removed her gold chain and ear studs, putting her in fear of death. They took the keys, opened an almirah and removed articles kept therein. Pursuant to information given by first accused, a gold ingot was recovered. At an identification parade conducted by pw 6 Magistrate, Pw2 identified both the accused. On this evidence, Courts below found the charge.

3. Learned counsel for petitioners submitted that the recovery would implicate only the first accused, and that there was no evidence against the second accused. Both accused were identified by Pw2. Evidence of identification is unimpeachable. In these circumstances, conviction was only proper. In revision, this court will not sit as a third court on facts and re-appreciate evidence. Evidence will be considered, to ascertain the propriety, legality and correctness of the findings. I have been taken through the evidence in extenso, and I am satisfied that the findings made on good evidence are not vitiated by illegality, irregularity or impropriety to warrant interference in revision. Conviction is confirmed. Trial Magistrate directed the sentences imposed in the case to run consecutively. But, he directed that the sentence will run concurrently, with the sentence in C. C. 217 of 1986.

4. 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.

5. S.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.

6. S.211 of the Code provides for enhanced punishment. This Section is hardly ever seen invoked. Likewise. S.236 and 248 (3) too, often go unnoticed by trial courts. They are more than antique pieces to be left on the mantel piece. I do not suggest that, in all cases and under all circumstances, these provisions must be given effect to. But, it could not be that there are no cases, for application of these provisions. I have seldom seen an instance where these provisions have been invoked. I am not sure whether the situation is consequent on non-application of mind. It is the duty of the court to give