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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ASHOK MENON, J.
SIVANANDAN S/O. VAREETH – APPELLANT
Vs.
STATE OF KERALA, REP BY PUBLIC PROSECUTOR AT HIGH COURT OF KERALA. – RESPONDENT
W.P.(C) No.27959/2017 & Crl.M.C.No.2625/2019
Decided On : 20-07-2021
Criminal Procedure Code, 1973 - Sections 427, 428 and 482 - Theft of property from inside the house, etc - Order of Conviction - quash of - Petitioner is a convict undergoing imprisonment as Prisoner in Central Prison - Petitioner was involved in 14 criminal cases pending before different courts - All cases pertain to offences like theft, housebreaking, lurking house trespass by night, theft of property from inside house, etc.
Finding of the court: 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 - Court 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 circumstances, exercising jurisdiction under Section 482 of Cr.P.C., Writ Petition as also Crl.M.C. are allowed and respondents are directed to release accused forthwith recording that he has undergone sentence in all crimes in which he was convicted.
Result: Writ Petition as also Crl.M.C. are allowed
JUDGMENT :
The Writ Petition is filed under Article 226 of the Constitution of India; while the Crl.M.C. is filed under Section 482 of the Cr.P.C.
2. The petitioner is a convict undergoing imprisonment as Prisoner No.C.P.6567 in the Central Prison, Viyyur. The petitioner was involved in 14 criminal cases pending before different courts. All the cases pertain to offences like theft, housebreaking, lurking house trespass by night, theft of property from inside the house, etc. He pleaded guilty and was convicted in all the cases for a period ranging between 6 months imprisonment to 5 years imprisonment and fine. The petitioner was arrested on 10.04.2003 and has been in prison ever since. The petitioner was found guilty and convicted in 14 cases, details of which are as herein under:
| 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
| 140 days (24.08.2007 –10.01.2008) |
| 4 | C.C.No. 754/2007 JFCM North Paravur | 2 years Rs.3000/- ID 9 months | 10/01/08 | 140 days (24.08.2007 –10.01.2008) |
| 5 | C.C.No. 1434/2007 JFCM, Perumbavoor
| 1 year Rs.500 5 days | 24.05.2008 | 250 days (17.09.2007-23.05.2008) |
| 6 | C.C.No. 770/2007 JFCM-II, Ernakulam
| 2 years No fine | 29.03.2008 | 196 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 | 250 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 | 304 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 | 280 days (17.10.2007 –22.06.2008) |
| 10 | C.C.No. 644/2007 JFCM North Paravur
| 3 years Rs.5000/- ID 6 months | 23.06.2008 | 280 days (17.10.2007 –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 | 349 days (20.11.200 3011.2009) |
| 13 | C.C.No. 1642/2009 JFCM, Aluva
| 1 year No fine
| 12/08/10
| 1084 days (24.08.2007 – 11.08.2010) |
| 14 | C.C.No. 2098/2008 JFCM, Thrissur
| 6 months No fine
| 30.09.2010 | 726 days (04.10.2008 – 29.09.2010) |
Set off is also allowed in certain cases, not in all cases.
3. Being different cases committed at different periods of time and pending before different courts, none of the courts exercised the discretion under Section 427 Cr.P.C to order the sentences to run concurrently. In such case, the sentences are to run consecutively one after the other, the petitioner will have to remain behind bars for 30 years and 6 months. The total fine amount imposed in all the cases together was 43,500/-. The petitioner ? states that he is old and infirm. The continued detention of the petitioner is illegal and therefore, specific orders may be made directing the jail authorities to release the petitioner.
4. Heard the learned Counsel for the petitioner Sri.John S.Ralph and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor for the State. Records perused.
5. The argument of the learned Counsel for the petitioner is that the Magistrates, who convicted the petitioner should have exercised the jurisdiction granted to the court under Section 427 of the Cr.P.C. He relies on several decisions where the jurisdiction under Section 427 of the Cr.P.C. was exercised by the Apex Court. The learned Counsel has relied on the decision in Abdul Rafoor, v. Abdulla, 2005 KHC 1855 : 2005 (4) KLT 840 of this Court, wherein exercising jurisdiction under Section 482 of the Cr.P.C., this Court allo
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