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IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D.JAGADISH CHANDIRA, J.
Eric Muline Nthuli, S/o. Howhing Nthuli – Petitioner
Versus
The State, by The Superintendent of Central Prison-1, Puzhal, Chennai – Respondent
CRL OP No. 32 of 2026
Decided On : 27-01-2026
Parties and Petition Details
The petitioner, Eric Muline Nthuli (Kenyan national, PID No.38495), filed a Criminal Original Petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking directions to run the sentence in C.C.No.33/2016 (judgment dated 08.12.2021 by Judicial Magistrate No.5, Salem) concurrently with the sentence in S.C.No.138/2017 (judgment dated 02.04.2019 by Sessions Judge, Mahila Court, Salem, modified on 21.08.2020). (!) (!) (!)
Background Facts
- Petitioner arrested in Crime No.783/2015 (offences under Sections 279, 304-A IPC and Section 181 MV Act) leading to C.C.No.33/2016 while studying in Salem. (!)
- Released on bail, re-arrested on 03.12.2016 in Crime No.12/2016 (offences under Sections 342, 506(i), 352, 376(1) IPC and Section 4 TN Prohibition of Harassment of Women Act), leading to S.C.No.138/2017; no bail granted. (!)
- In S.C.No.138/2017, convicted and sentenced to life imprisonment under Section 376(1) IPC, reduced to 10 years Rigorous Imprisonment by Division Bench in Crl.A.No.316/2019 on 21.08.2020. (!) (!)
- Petitioner in custody since 03.12.2016. (!) (!)
- In C.C.No.33/2016, convicted and sentenced inter alia to 1 year Simple Imprisonment under Section 304-A IPC (among other terms). (!) (!)
Petitioner's Submissions
Trial courts did not specify if sentences run concurrently or consecutively, creating uncertainty; Magistrate should have directed concurrency and granted set-off under Section 428 Cr.P.C.; petitioner in continuous custody since 2016. (!)
Respondents' Submissions
Sentences from different courts; discretion lies with trial courts, but High Court may exercise it. (!)
Court's Analysis and Legal Principles
- Two separate trials by different courts for distinct offences: serious offence (S.C.No.138/2017) and lesser traffic offence (C.C.No.33/2016) tried while petitioner was already imprisoned. (!) (!)
- High Court has inherent power under Section 482 Cr.P.C. (analogous to Section 528 BNSS) to direct subsequent sentence to run concurrently with prior sentence, even if not invoked earlier, to secure ends of justice based on facts, gravity, and circumstances. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
- For life sentences (or equivalents), subsequent terms run concurrently as one cannot serve multiple life terms additively. (!) (!)
- Applicable even across different courts/divisions if final; promotes justice without altering convictions. (!) (!) (!)
- Trial courts should consider concurrency discretion explicitly, especially for non-habitual offenders or minor subsequent offences. (!) (!) (!) (!) (!)
Decision
Petition allowed. Sentences in C.C.No.33/2016 (08.12.2021) to run concurrently with sentence in S.C.No.138/2017 (02.04.2019, modified 21.08.2020). Magistrate ought to have granted set-off under Section 428 Cr.P.C. Prison authorities to release petitioner forthwith if 10 years Rigorous Imprisonment served. (!) (!)
| Table of Content |
|---|
| 1. petitioner's arrest details and case background. (Para 1 , 2) |
| 2. sentence context and appeals made. (Para 3 , 4) |
| 3. legal argument for concurrent sentencing. (Para 5 , 6) |
| 4. prosecutor's viewpoint on court discretion. (Para 7 , 8) |
| 5. judicial overview and reliance on precedents. (Para 9 , 10) |
| 6. court's directive on concurrent sentencing. (Para 11 , 12) |
| 7. final ruling and petition allowed. (Para 13) |
ORDER :
A.D.JAGADISH CHANDIRA, J.
This Criminal Original Petition has been filed to pass an order to undergo the imprisonment imposed on the petitioner/accused in C.C.No.33 of 2016 vide judgment dated 08.12.2021 on the file of the learned Judicial Magistrate No.5, Salem, along with the sentence imposed on the petitioner/Accused in SC.No.138 of 2017 vide judgment, dated 02.04.2019 on the file of the learned Sessions Judge, Mahila Court, Salem.
2. The petitioner is a Kenyan national. While he was studying in Salem, he was arrested in respect of a case registered in Crime No.783 of 2015 for the offences under Sections 279 and 304-A of the IPC and Section 181 of the Motor Vehicles Act, 1988 . The respondent Police, after completion of the investigation, filed a final report and the same was taken on file by the learned Judicial Magistrate No.5, Salem, in C.C.No.33 of 2016. While he was on bail, he was again arrested on 03.12.2016 in respect of a case registered in Crime No.12 of 2016 for the offences under Sections 342 , 506(i), 352 and 376(1) of IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. After arrest, the petitioner was not granted bail. The respondent Police, after completion of the investigation in Crime No.12 of 2016, filed a final report and the same was taken on file in S.C.No.138 of 2017 on the file of the learned Sessions Judge, Mahila Court, Salem. The trial in S.C.No.138 of 2017 was completed and the petitioner was found guilty and imposed with the punishment as follows:
| Sl. No. | Sections | Punishment imposed |
|---|---|---|
| 1 | 342 IPC | 1 year Rigorous Imprisonment and Rs.1,000/- as fine, in default, 3 months Simple Imprisonment. |
| 2 | 506(I) IPC | 2 years Rigorous Imprisonment and Rs.1,000/- as fine, in default, 6 months Simple Imprisonment. |
| 3 | 352 IPC | 3 months Simple Imprisonment and Rs.500/- as fine, in default, 1 week Simple Imprisonment. |
| 4 | 376(I) IPC | Life Imprisonment and Rs.5,000/- as fine, in default, 6 months Simple Imprisonment. |
| 5 | 4 TNPHW Act | 3 years Rigorous Imprisonment and Rs.1,000/- as fine, in default, 6 months Simple Imprisonment. |
3. Challenging the same, the petitioner filed an appeal before this Court in Crl. A.No.316 of 2019 and a Division Bench of this Court, by judgment dated 21.08.2020, reduced the sentence of Life Imprisonment to 10 years of Rigorous Imprisonment. However, the petitioner has been in prison from 03.12.2026 to till date.
4. While so, the trial in C.C.No.33 of 2016 was completed by the learned Judicial Magistrate No.5, Salem and the petitioner was found guilty and imposed with the punishment vide judgment dated 08.12.2021 as follows:
| Sl. No. | Sections | Punishment imposed |
|---|---|---|
| 1 | 279 IPC | 6 months Simple Imprisonment and Rs.1,000/- as fine, in default, 1 month Simple Imprisonment. |
| 2 | 304-A IPC | 1 year Simple Imprisonment and Rs.1,000/- as fine, in default, 1 month Simple Imprisonment. |
| 3 | 181 of MV Act | 3 months Simple Imprisonment and Rs.500/- as fine, in default, 1 month Simple Imprisonment. |
5. Therefore, the present petition has been filed to direct the sentences of imprisonment imposed on the petitioner by the learned Judicial Magistrate No.5, Salem, in C.C.No.33 of 2016 to run concurrently with the sentence of imprisonment imposed by the learned Sessions Judge, Mahila Court, Salem, on him in S.C.No.138 of 2017.
6. The learned counsel for the petitioner submitted that the petitioner has been in prison from the date of his arrest i.e., 03.12.2016 and the learned Judicial Magistrate No.5, Salem, while convicting the petitioner in C.C.No.33 of 2016 ought to have directed the sentences of imprisonment imposed on the petitio
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