Point of Law: where there are different transactions, different crime numbers and disposal of those by judgments of different courts, direction to serve the sentences imposed concurrently cannot be issued under Section 427 Cr.P.C

ORDER :

This petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking for an order that the sentence imposed on the petitioner shall run concurrently and for a direction to release him on completion of the period of imprisonment, to secure the ends of justice.

2. The petitioner is now undergoing imprisonment at Central Prison and Correctional Home, Kannur after being convicted for an offence punishable under Section 55(a) of the Kerala Abkari Act, 1077 in S.C. No. 357/2009 pending on the files of Additional District and Sessions (Fast Track) Court-II, Palakkad. The petitioner was sentenced to undergo rigorous imprisonment for 4 years and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for one year. In S.C. No.221/2009 the petitioner was sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for one year. The above judgments were assailed by the petitioner before this Court respectively in Crl.Appeal Nos.1914/10 and 1858/10.

3. Crl.Appeal No.1914/10 was allowed by this Court in part and the sentence was reduced to rigorous imprisonment for one year. The fine imposed was maintained, but, the default sentence was reduced to rigorous imprisonment for 3 months. Crl.Appeal No.1858/10 was dismissed by this Court and thereby the judgment of the trial court in S.C. No.221/09 was confirmed. Copies of the judgments of this Court in respective cases are produced along with as Annexures I and II.

4. Against the judgment passed in SC No. 221/2009 by Additional Court of Sessions (Adhoc-I), Palakkad, accused Nos.1 and 2 respectively filed Crl.Appeal Nos.1837/2010 and 1858/2010. Crl.Appeal No.1858/2010 was dismissed maintaining the sentence imposed on the 1st accused. Crl.Appeal No.1837/10 was allowed in part by maintaining the conviction and modifying the sentence imposed on 2nd accused. The sentence imposed on the 2nd accused is modified as a sentence of rigorous imprisonment for 3 years and fine of Rs.1,00,000/- and rigorous imprisonment for one year in case of default. The grievance of the petitioner in the present petition was that while imposing sentence in Crl.Appeal No.1914/10, this Court did not specify whether the sentence will run concurrently or not. Therefore, the petitioner was constrained to undergo sentences of imprisonment imposed on him consecutively. The judgment of this Court in Crl.Appeal No.1858/2010 was challenged by filing Crl.Appeal No.695/21 before the Apex Court and by judgment dated 27.07.21, the sentence of imprisonment imposed on him was modified and reduced to 2 years. The fine amount was enhanced to Rs.2,00,000/-. Set-off was also allowed for the period of detention during remand. It is contended that the petitioner has a family for which, he is the sole bread winner and if he is detained inextensively, they would be put to difficulties. As on 26.01.22 he has undergone imprisonment for one year, 5 months and 5 days. Since there was no direction in the judgments that the sentence shall run concurrently, the petitioner has no other way than to undergo detention in prison for a total period of 5 years. The mother of the petitioner is ill and incapable to do things on her own. He being a convict, his relatives are not prepared to look after his mother. He also does not have the financial stability to prefer an appeal. According to him, in the judgment passed in Crl.Appeal No.1457/21, copy of which is produced alongwith as Annexure III, the Apex Court has reminded that the courts are empowered to invoke the discretion under Section 427 Cr.P.C.

5. This is a case wherein the petitioner stands convicted and sentenced to undergo imprisonment by judgments passed by two trial courts. In the appeal preferred separately also two Benches of this Court has passed separate judgments. The prosecution cases were originated from two independent transactions. Section 427 Cr.P.C is