Joseph Thevalakkat vs The Superintendent Of Central … on 10 June, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 938 of 2009()


1. JOSEPH THEVALAKKAT,
                      ...  Petitioner

                        Vs



1. THE SUPERINTENDENT OF CENTRAL PRISON,
                       ...       Respondent

2. STATE, REP.BY PUBLIC PROSECUTOR,

                For Petitioner  :SRI.T.G.RAJENDRAN

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :10/06/2009

 O R D E R
              M.SASIDHARAN NAMBIAR,J.
            ===========================
            CRL.M.C.No. 938      OF 2009
            ===========================

      Dated this the 10th     day of June,2009

                        ORDER

Petitioner was convicted and sentenced for the

offence under sections 5(1)(c) & (d) read with section

5(2) of Prevention of Corruption Act as well as offence

under section 409, 465, 471 and 477-A of Indian Penal

Code in C.C.4/1995 and 5/1995 by Special Judge,

Thiruvananthapuram. The conviction was confirmed and

sentence was modified in the appeal. This petition is

filed under section 482 of Code of Criminal Procedure

contending that as per the sentence as modified in

Crl.A.525/1996 is two years rigorous imprisonment and

in Crl.A.495/1996 one year rigorous imprisonment.

Case of the petitioner is that as the incident in both

the cases had taken place within a period of one year

and petitioner could have been jointly tried for the

offences in one case, the sentence should be run

concurrently and invoking the inherent jurisdiction of

this court under section 482 of Code of Criminal

Procedure, it is to be held that the sentence in both

the cases shall run concurrently.

Crl.M.C.938/2009 2

2. Learned counsel has relied on the decision of this

court in Subramonian v. State of Kerala (1983 KLT 452)

where it is held that the power under section 482 can be

invoked for giving direction to run concurrently the

sentence awarded in two cases. Learned counsel would

therefore argue that a direction is to be issued to run the

sentences concurrently.

3. Later Division Bench of this Court in Penchil Rao

v. State of Kerala (2005(4) KLT SN 53) considered this

question in the light of the decision of the Apex Court and

held that court is not entitled to order that the sentence

shall run concurrently, by exercising the inherent powers

under section 482, when the conviction was confirmed in

appeal and further by the Apex Court as otherwise it would

amount to review of the earlier judgment. Moreover, even

if the principles accepted by this Court in Subramonian’s

case (supra) is to be followed, the question is whether the

extra ordinary powers of this court under section 482 of

the Code of Criminal Procedure is to be exercised in favour

of an accused who is convicted for an offence under the

Prevention of Corruption Act. I cannot agree with the

submission of the learned counsel that even in such a case

the extra ordinary power is to be exercised. The power

Crl.M.C.938/2009 3

under section 482 is to be exercised in rare cases where

interest of justice ends warrants to secure justice. If

that be so, it cannot be exercised in favour of petitioner

who is convicted for the offence under the Prevention of

Corruption Act.

Petition is dismissed.

M.SASIDHARAN NAMBIAR
JUDGE
tpl/-

M.SASIDHARAN NAMBIAR, J.

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W.P.(C).NO. /06

———————

JUDGMENT

SEPTEMBER,2006