In a significant ruling, the Madras High Court interpreted the word "already undergoing a sentence" under Section 427 of the Code of Criminal Procedure, with an attempt to balance it with the fundamental right to personal liberty under Article 21 of the Constitution of India.
Section 427 CrPC deals with the situations where an offender already undergoing a sentence is sentenced for another offence. Section 427(1) states that the subsequent sentence will be ordinarily consecutive to the previous one - meaning that the subsequent sentence will commence only after the expiry of the previous sentence. However, the sentencing court can specify that the subsequent sentence will run concurrently with the previous one. Unless the sentencing court specifies so, the subsequent sentence will be deemed as "consecutive".
In the present case, Justice G R Swaminathan of Madurai Bench of the HC was dealing with a petition filed by a 60-year old man under Section 482 CrPC seeking a direction for concurrent running of sentences in 5 cases. All the sentences were pronounced on the same day, in respect of offences of theft and house breaking committed against five optical shops on the same date. He was sentenced to three years simple imprisonment and to pay a fine of Rs.5,000/- for each of the offences in each case
The Magistrate Court, while delivering the sentence, did not specify if the sentences will run concurrently. This would have meant that the sentences will run consecutively, resulting in a fifteen year term in prison altogether.
The issue before the Court was whether the situation will attract Section 427(1) at all and whether "consecutiveness" will automatically kick in.
"The question is whenever the sentencing court failed to pass any direction in terms of Section 427 of Cr.Pc, will the effect of consecutiveness kick in automatically ?", the court said.
Emphasizing on the words "already undergoing a sentence of imprisonment," the bench of Justice GR Swaminathan has held that
"for Section 427 (1) of Cr.Pc to apply, the condition precedent must be that the person convicted and sentenced on the subsequent occasion was already undergoing a sentence of imprisonment in the previous case. If he was not so undergoing a sentence in the previous case, Section 427 (1) will not apply at all."
Next, the Court examined the scope of the phrase "already undergoing sentence". The Court held that a person can be said to "already undergoing sentence" only if he is under physical detention in execution of a warrant for sentence under Section 425 CrPC.
"The whole issue turns on the expression "already undergoing a sentence of imprisonment". "Already" means "before a particular time in the past or before now". "Undergoing" means "experiencing something" (Oxford Advanced Learner's Dictionary, New 9th Edition). One cannot be said to be undergoing a sentence of imprisonment unless warrant for its execution had been issued under Section 425 of Cr.Pc and it had taken effect. Only if the convict had been physically detained pursuant to such warrant, he can be said to be undergoing a sentence of imprisonment and not otherwise."
The Court added :
"Thus, for Section 427 (1) of Cr.Pc to apply, the condition precedent must be that the person convicted and sentenced on the subsequent occasion was already undergoing a sentence of imprisonment in the previous case."
"If he was not so undergoing a sentence in the previous case, Section 427 (1) will not apply at all. I must emphasize that Section 427 of Cr.PC does not talk of a person already sentenced to a term of imprisonment being sentenced on a subsequent conviction to a term of imprisonment. The legislature has carefully added the words "already undergoing". This is significant. No word occurring in a statutory provision can be ignored. Each expression has to be given its full effect".
Provision has to be interpreted in the light of Article 21
The Court observed that the serious consequence resulting from the omission of the court to specify about the nature of sentence under Section 427 has a serious implication on the right to personal liberty under Article 21.
"Suppose on a single day, an accused is found guilty in more than one case and sentenced. It is for the court concerned to clarify as to when the sentence in the subsequent case will take effect. If the court is silent on this aspect, the sentences will start running from the date when they were given effect to. Section 427 (1) has prescribed the manner in which the sentence will run. It states that if the court is silent and had not given any direction that the sentence given in the subsequent case will run concurrently, it will run only consecutively. Such an adverse consequence emanating from the silence of the court has a serious implication for personal liberty. The Constitution attaches a very high value to personal liberty. Therefore, such a provision must be construed in a manner that is at once fair, just and reasonable. Only by giving full effect to the expression "already undergoing" such a result can be obtained".
The Court noted that the case at hand was a 'classic proof'.
"When the petitioner was convicted and sentenced in C.C No.297 of 2017 on the file of the Judicial Magistrate No.V, Tiruchirappalli, he had already been convicted and sentenced in C.C No.296 of 2017. But then, he had only been convicted and sentenced. He was not undergoing any sentence of imprisonment. The same logic and reason will govern the sentences in the subsequent cases in C.C Nos.298 to 300 of 2017", the bench observed.
"Therefore, even if no specific direction had been passed that the subsequent sentence shall run concurrently with the previous sentence, in view of the construction now placed on Section 427 of Cr.Pc, they will necessarily run only concurrently", added the bench.
The Court further remarked.
"If Section 427(1) is not understood as interpreted above, the result will be that the petitioner will rot in prison for ten long consecutive years. In my view, it would be a monstrous situation."
"I must emphasize that Section 427 of Cr.PC does not talk of a person already sentenced to a term of imprisonment being sentenced on a subsequent conviction to a term of imprisonment. The legislature has carefully added the words "already undergoing". This is significant."
In the peculiar facts of the case at hand, the applicant had been accused of breaking open five shops and stealing drawer cash, within one hour on the same night. Cases for all the five thefts were registered consecutively and during trial, the applicant pleaded guilty.
Reserving its doubts as to these facts, the bench said,
"I find it impossible to believe that within a span of one hour, the petitioner managed to break open and enter as many as five shops which were located in the bazaar. All the five cases were registered successively and the petitioner also pleaded guilty in all the five. I find the entire story a little dramatic. The cases appear to have been put up. It is true that the premises that were broken into were optical shops. But that does not mean that judicial vision must be surrendered."
The court said that the Trial courts ought to have "deliberated" the facts of the case closely, before passing an order of conviction. He cautioned that magistrates should not act "mechanically", especially when they are dealing with pleas of guilt.
"Section 241 of Cr.Pc clearly states that if the accused pleads guilty, the magistrate shall record the plea and may, in his discretion convict him thereon. The trial magistrate ought not to be in a hurry to convict the accused who had pleaded guilty…The judicial magistrate must satisfy his conscience that there are materials indicating the commission of the offence and the culpability of the accused. Only thereafter, he can convict and sentence the accused. There must be deliberation on the part of the magistrate before passing an order of conviction particularly when he intends to pass a stiff sentence also. The magistrate must not be mechanical in his approach. Conducting a trial and passing a judgment after contest can be cumbersome. But in matters concerning personal liberty, the court ought not to short circuit the process. Article 21 of the Constitution permits deprivation of personal liberty only by a due process of law. This mandate has to be borne in mind by the presiding Judge when acting on the plea of guilty by the accused," Justice Swaminathan observed.
He also expressed his "temptation" to "dig a little deeper" into the facts of the case but refrained from doing so, as the Applicant had not sought declaration of innocence.
"In any event, considering the overall facts and circumstances, I have no hesitation to direct that the sentences imposed on the petitioner will run concurrently", the Court said in conclusion.
Case Title: Sheik Madhar v. State of Tamil Nadu & Ors.
Case No.: Crl OP (MD) No. 18030/2019
Quorum: Justice GR Swaminathan
Appearance: Advocate R. Alagumani (for Applicant); Govt Advocate A. Robinson (for State)
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