Shibu vs State Of Kerala Represented By on 14 September, 2010

Shibu vs State Of Kerala Represented By on 14 September, 2010

Citation	Crl. MC.No. 2623.2010
Date of Judgement	14 September 2010
Court	In high court of Kerala
Case type	Criminal case
Appellant	Sri.P.Vijaya Bhanu
Respondent	Public Prosecutor
Bench	The Hon’ble MR. Justice V.RAMKUMAR
Referred	Section 427,482.

Background of fact:

The facts leading to this petition can be summarised as follows:-

S.C.No.315 of 1998 before the Additional Sessions Court (Fast Track Court-I), Trivandrum was a case charge-sheeted by the  Crl. M.C. No.2623 of 2010 Kanjiramkulam Police in Crime No.51 of 1997 against nine accused persons for offences punishable under Sections 143, 147, 148, 427,449 and 302 read with Section 149 IPC. The nine persons who were charge-sheeted were:-

1. Shibu (1^st petitioner herein)

2. Suresh Babu @ Thambu

3. Sivadasan @ Dasan (2^nd petitioner herein)

4. Sivarajan @ Sivadasan

5. Shemi @ Sohan

6. Kumar @ Kappakka

7. Santhosh

8. Sasi

9. Anil Kumar @ Ani Out of the nine accused persons, A5 was absconding and the case against him was split up and refiled. The remaining 8 accused persons faced trial. The learned Additional Sessions Judge after trial as per judgment dated 6.07.2004 acquitted A2, A4 and A6 to A9 of all the offences and A1 and A3 of the offences  Crl. M.C. No.2623 of 2010 punishable under Sections 143,147,148,427 and 149 IPC, but convicted A1 and A3 of the offences punishable under Sections 302 and 449 read with 34 IPC. For the above conviction the trial Judge sentenced A1 and A3 (the petitioners herein) as follows:-

“So I sentence A1 and A3 for their conviction u/s 302 r/w 34 IPC to undergo imprisonment for life each and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) each, in default of payment of fine, to undergo R.I for 3 (three) years each. I further sentence A1 and A3 for their conviction u/s 449 r/w 34 IPC to undergo R.I for 5(five) years each and to pay fine of Rs.10,00/-(Ten thousand only) each, in default of payment of fine, to undergo R.I for 2(two) years each. The substantive sentences shall run consecutively.”

The petitioners preferred Crl. Appeal No.1484/2004 before this Court challenging the conviction entered and the sentence passed against them. As per judgment dated 29.10.2007, this Court dismissed the appeal, confirming the conviction entered and the sentence passed. The 2^nd petitioner herein (A3) preferred S.L.P(Crl.)No.4749 of 2009 before the Supreme Court of India challenging the judgment passed by this Court. As per  Crl. M.C. No.2623 of 2010 order dated 7.07.2009, the Hon’ble Supreme Court of India dismissed the S.L.P on the ground of delay as also on merits.

Even Though the 2^nd petitioner preferred a review petition as Review Petition (Crl.) No.656 of 2009 in S.L.P(Crl.)No.4749/2009 contending that by virtue of the statutory mandate under Section 427(2) Cr.P.C, the substantive sentence of imprisonment under Section 449 IPC should have been directed to run only concurrently and not consecutively with the sentence of imprisonment for life, the said Review Petition was dismissed by the Supreme Court on 9.12.2009. It is thereafter that the petitioners have filed the present petition under Section 482 Cr.P.C seeking the aforesaid direction.

Issue:

(1)Whether the Section 397, Criminal Procedure Code does or doesn’t directly apply to this case.

Arguments:

Section 397, Criminal Procedure Code does not directly apply to this case for the simple reason that the convictions earned by the accused were in respect of offences for which he had been tried jointly at one trial. However, the principle underlying section 397(2), Criminal Procedure Code deserves to be applied to this case. Section 35 Criminal Procedure Code would have applied to it but for the reason that he was sentenced to death under section 302 and not to life imprisonment, and the occasion for the court to make an order under Section 35 Criminal Procedure Code lapsed by the time the sentence of death was commuted. This case has, therefore, become an unusual one and cannot fall either under Section 35 or under Section 397 of the Criminal Procedure Code and we shall have to decide it with reference to the principles underlying the said provisions of the Criminal Procedure Code. It is also significant that when a person is sentenced to imprisonment for life, it cannot be conceived that he shall be made to undergo sentences of various terms of imprisonment that may have been passed at the same trial under other sections after serving the term of life imprisonment. After the life of a convict is finished there cannot remain any opportunity for enforcing other terms of imprisonment Crl. M.C. No.2623 of 2010 against him. That is why the provision under Section 397 (2) Criminal Procedure Code has been so enacted. In this view of the matter, we think that the imprisonments under section 307 and 309, Bikaner Penal Code passed against the petitioner could not be conceived to have been enforced after the expiry of the life imprisonment passed against him. The only answer, therefore, which can be given to the question is that the two terms of imprisonment under Section 307 and 309 shall have to be enforced concurrently with the life imprisonment. The order of the Session Judge of Ganganagar dated 4^th of January, 1949, does not appear to be consistent with the principles underlying section 35 and section 397 Criminal Procedure Code and deserves to be vacated”

JUDGEMENT

• (1.)In this petition filed under S.482 CrPC, the petitioners who were accused Nos.1 and 3 in SC No. 315 of 1998 on the file of the Additional Sessions Court (Fast Track Court 1), – Thiruvananthapuram seek a direction that the substantive sentences of imprisonment for life and rigorous imprisonment for five years imposed on them under S.302 and S.449 IPC may be directed to run concurrently and not consecutively. The petitioners are now serving the sentence in the Open Prison, Nettukaltheri in Thiruvananthapuram district.
• 2.) THE BACKGROUND FACTS The facts leading to this petition summarised as follows: can be

• SC No.315 of 1998 before the Additional Sessions Court (Fast Track Court – I), Trivandrum was a case charge sheeted by the Kanjiramkulam Police in Crime No. 51 of 1997 against nine accused persons for offences punishable under S.143, S.147, S.148, S.427,449 and 302 read with S.149 IPC. The nine persons who were charge-sheeted were
• 1. Shibu (1^st petitioner herein)
• 2. Suresh Babu @ Thambu
• 3. Sivadasan @ Dasan (2^nd petitioner herein)
• 4. Sivarajan @ Sivadasan
• 5. Shemi @ Sohan
• 6. Kumar @ Kappakka
• 7. Santhosh
• 8. Sasi
• 9. Anil Kumar @ Ani

Out of the nine accused persons, A5 was absconding and the case against him was split up and refiled. The remaining 8 accused persons faced trial. The learned Additional Sessions Judge after trial as per judgment dated 06/07/2004 acquitted A2, A4 and A6 to A9 of all the offences and A1 and A3 of the offences punishable under S.143,147,148,427 and 149 IPC, but convicted A1 and A3 of the offences punishable under S.302 and S.449 read with 34 IPC. For the above conviction the trial Judge sentenced A1 and A3 (the petitioners herein) as follows:

So I sentence A1 and A3 for their conviction under S.302 r/w 34 IPC to undergo imprisonment for life each and to pay a fine of Rs.25,000/- (Rupees twenty five thousand only) each, in default of payment of fine, to undergo R.I for 3 (three) years each. I further sentence A1 and A3 for their conviction under S.449 r/w 34 IPC to undergo R.I for 5 (five) years each and to pay fine of Rs.10,000/- (Ten thousand only) each, in default of payment of fine, to undergo R.I for 2 (two) years each. The substantive sentences shall be consecutively.

The petitioners preferred Crl. Appeal No. 1484/2004 before this Court challenging the conviction entered and the sentence passed against them. As per judgment dated 29/10/2007, this Court dismissed the appeal, confirming the conviction entered and the sentence passed. The 2^nd petitioner herein (A3) preferred SLP (Crl.) No. 4749 of 2009 before the Supreme Court of India challenging the judgment passed by this Court. As per order dated 07/07/2009, the Hon’ble Supreme Court of India dismissed the SLP on the ground of delay as also on merits. Even though the 2^nd petitioner preferred a review petition as Review Petition (Crl.) No. 656 of 2009 in SLP (Crl.) No. 4749/2009 contending that by virtue of the statutory mandate under S.427(2) CrPC, the substantive sentence of imprisonment under S.449 IPC should have been directed to run only concurrently and not consecutively with the sentence of imprisonment for life, the said Review Petition was dismissed by the Supreme Court on 09/12/2009. It is thereafter that the petitioners have filed the present petition under S.482 CrPC seeking the aforesaid direction.

(3.)I heard Advocate Sri. Revikrishnan, the learned counsel appearing for the petitioners and Advocate Sri. C. S. Hrithwik the learned Public Prosecutor who defended the State.

References

1 https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=110102799000&CaseId=110102799000 

2. https://indiankanoon.org/doc/574915/ 

This Article is written by Kiran Bosiya of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.