IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.08.2010
CORAM:
THE HON'BLE MR.JUSTICE M. CHOCKALINGAM
AND
THE HON'BLE MR.JUSTICE M. SATHYANARAYANAN
HCP. No.901 of 2010
E. Manikandan ... Petitioner
Vs.
1. State of Tamil Nadu,
rep. by its Secretary,
Home Department,
Fort. St. George,
Chennai 600 009.
2. The Superintendent,
Central Prison,
Vellore. ... Respondents
Petition under Article 226 of the Constitution of India, seeking to issue a writ of Habeas Corpus, directing the respondents to treat the subsequent life sentence of the petitioner passed in S.C. No.206 of 2003 by the Additional District and Sessions Judge (Fast Track Court), Vellore by its judgment dated 27.10.2004 as confirmed by this Court in C.A. No.597 of 2005 by its judgment dated 11.6.2007 passed against the detenu by name Manikandan, S/o. G. Elangovan residing at No.30, Mariamman Koil Street, Gandhipet, Tirupattur, Vellore District who is now confined in Central Prison, Vellore as concurrent with the imprisonment of life passed in S.C. No.176 of 2002 passed by the Principal Sessions Judge, Vellore by its judgment dated 17.7.2003 as confirmed by this Court made in C.A. No.1856 of 2003 by its judgment dated 10.7.2006 and to cause the production of the body or person of the detenu before this Court and set him at liberty since the legality of the continued imprisonment is illegal.
For Petitioner : Mr. S. Shanmughavelayutham,
Senior counsel for
Mr. Vijayaraghavan
For Respondents : Mr. Babu Muthumeeran
Additional Public Prosecutor
O R D E R
(Order of the Court was made by M. CHOCKALINGAM,J)
This habeas corpus petition is brought forth by the petitioner for a direction to the respondents to treat his subsequent life sentence passed in S.C. No.206 of 2003 by the Additional District and Sessions Court (Fast Track Court), Vellore by its judgment dated 27.10.2004 and subsequently affirmed by this Court in C.A. No.597 of 2005 by its judgment dated 11.6.2007 as concurrent with the imprisonment of life passed in S.C. No.176 of 2002 passed by the Principal Sessions Judge, Vellore by its judgment dated 17.7.2003 which was subsequently affirmed by this Court made in C.A. No.1856 of 2003 by its judgment dated 10.7.2006.
2. Affidavit filed in support of the petition is perused. The Court heard the learned counsel appearing for the petitioner and also the respondent-State.
3. As could be seen from the available materials and the averments made in the affidavit and also considering the submissions made by either side, it is noticed that the petitioner, who stood charged, tried along with his mother for the offence under Section 302 read with 34 of the Indian Penal Code in S.C. No.176 of 2002 on the file of the Principal Sessions Division, Vellore, was sentenced to undergo imprisonment for life by judgment dated 17th July, 2003. An appeal preferred therefrom in C.A. No.1856 of 2003 was disposed of by this Court on 10.7.2006, whereby the conviction and sentence in respect of this petitioner was affirmed. The judgment of the Trial Court in respect of the second accused/mother of the petitioner was set aside.
4. The petitioner also faced trial in S.C. No.206 of 2003 on the file of the Additional District and Sessions Court (Fast Track Court), Vellore for the offences under Sections 302 read with 506(ii) of the Indian Penal Code. On trial, he was found guilty and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- in default to undergo Rigorous Imprisonment for four months and an appeal preferred there from in C.A. No.597 of 2005 was also dismissed by a judgment dated 11.6.2007.
5. It is also an admitted position that while the second judgment was passed awarding life imprisonment, already he was awarded life imprisonment in the earlier case and hence two separate sentences for life imprisonment were to be suffered by the petitioner herein. Under such circumstances, this application has been brought forth by the petitioner, seeking an order of this Court that both the sentences have to run concurrently.
6. Advancing arguments on behalf of the petitioner, learned Senior Counsel would urge that these two separate sentences have to run concurrently. As per Section 427(2) of the Criminal Procedure Code, when a person already undergoing a sentence of imprisonment for life was sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence should run concurrently with such previous sentence. In order to fortify his contention, learned counsel also relied on the judgment of the Apex Court reported in the case of RANJIT SINGH v. UNION TERRITORY OF CHANDIGARH ((1991) 4 S.C.C. 304) .
7. In reply to the above, learned counsel appearing for the State would submit that it is not the case where it could be ordered concurrently. An application like this cannot be brought forth by the petitioner. Apart from this, in the second sentence when there was no specific order to run concurrently, the sentences have to be run consecutively. In support of his submission, learned counsel relied on the decision reported in the case of M.R. KUDVA v. STATE OF A.P. ((2007) 1 S.C.C. (CRL.) 648).
8. The Court paid its anxious consideration on the submissions made. It is not in controversy that as stated above, the petitioner stood tried in S.C. No.176 of 2002 on the charge of murder and he was also awarded life imprisonment by judgment dated 17th July, 2003, which was also confirmed in C.A. No.1856 of 2003 by a judgment dated 10.7.2006. It could be seen from the materials available on record that he faced another trial in S.C. No.206 of 2003 and he was awarded life imprisonment on being found guilty of murder and the appeal filed against the said judgment also fails.
9. As rightly pointed out by the learned Senior Counsel appearing for the petitioner, if these two different sentences were given at different point of time, they would run consecutively and not concurrently. It is apt and appropriate to produce Section 427 of the Code of Criminal Procedure as follows:-
” (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.”
10. A reading of the above would make it clear that if a life convict is subsequently given life imprisonment, it must be run concurrently. The judgment referred to above in 1991(4) S.C.C. 304 (cited supra) has got to be applied to the present case on hand, whereas the judgment relied on by the learned Additional Public Prosecutor in ((2007) 1 S.C.C. (Crl.) 648) cannot be applied to the present facts of the case. It is a fit case where Section 427(2) of the Code of Criminal Procedure has got to be applied to the present case on hand and the contention put forth by the learned Senior Counsel appearing for the petitioner has got to be accepted.
11. Accordingly, the life imprisonment awarded in both the cases are ordered to run concurrently. The habeas corpus petition stands disposed of.
ssa.
To
1. The Secretary,
The State of Tamil Nadu,
Home Department,
Fort. St. George,
Chennai 600 009.
2. The Superintendent,
Central Prison,
Vellore