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MUTHUSAMY versus THE STATE REPRESENTED BY

High Court of Madras

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Muthusamy v. The State represented by - Crl.O.P.(MD).Nos.7419 of 2007 [2007] RD-TN 2526 (27 July 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 27/07/2007

CORAM:

THE HONOURABLE MR.JUSTICE G.RAJASURIA

Crl.O.P.(MD).Nos.7419 of 2007

Crl.O.P.(MD).Nos.7420 to 7424 of 2007

Muthusamy ... Petitioner in Crl.O.P.Nos.7419, 7423 and 7424 of 2007 Suriya Kumar ... Petitioner in Crl.O.P.No.7420 of 2007 Gomathy Nayagam ... Petitioner in Crl.O.P.Nos.7421 and 7422 of 2007 Vs.

The State represented by

The Inspector of Police,

Commercial Crime Investigation Wing,

Tirunelveli,

Tirunelveli District. ... Respondent Prayer in Crl.O.P.No.7419 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to direct the learned Principal District and Sessions Judge, Tirunelveli, Tirunelveli District to take the Criminal Appeal and petition for suspension of sentence filed by the petitioner in C.A.S.R.No.11851 of 2007 and Cr.M.P.S.R.NO.11850 of 2007 respectively as against the conviction and sentence passed by the learned Judicial Magistrate No.II, Tirunelveli, Tirunelveli District, in C.C.No.42 of 2004 dated 22.06.2007 and to dispose of the same in accordance with law.

Prayer in Crl.O.P.No.7420 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to direct the learned Principal District and Sessions Judge, Tirunelveli, Tirunelveli District to take the Criminal Appeal and petition for suspension of sentence filed by the petitioner in C.A.S.R.No.11260 of 2007 and Cr.M.P.S.R.NO.11259 of 2007 respectively as against the conviction and sentence passed by the learned Judicial Magistrate No.II, Tirunelveli, Tirunelveli District, in C.C.No.42 of 2004 dated 22.06.2007 and to dispose of the same in accordance with law.

Prayer in Crl.O.P.No.7421 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to direct the learned Principal District and Sessions Judge, Tirunelveli, Tirunelveli District to take the Criminal Appeal and petition for suspension of sentence filed by the petitioner in C.A.S.R.No.11258 of 2007 and Cr.M.P.S.R.NO.11257 of 2007 respectively as against the conviction and sentence passed by the learned Judicial Magistrate No.II, Tirunelveli, Tirunelveli District, in C.C.No.42 of 2004 dated 22.06.2007 and to dispose of the same in accordance with law.

Prayer in Crl.O.P.No.7422 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to direct the learned Principal District and Sessions Judge, Tirunelveli, Tirunelveli District to take the Criminal Appeal and petition for suspension of sentence filed by the petitioner in C.A.S.R.No.11256 of 2007 and Cr.M.P.S.R.NO.11255 of 2007 respectively as against the conviction and sentence passed by the learned Judicial Magistrate No.II, Tirunelveli, Tirunelveli District, in C.C.No.41 of 2004 dated 22.06.2007 and to dispose of the same in accordance with law.

Prayer in Crl.O.P.No.7423 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to direct the learned Principal District and Sessions Judge, Tirunelveli, Tirunelveli District to take the Criminal Appeal and petition for suspension of sentence filed by the petitioner in C.A.S.R.No.11855 of 2007 and Cr.M.P.S.R.NO.11854 of 2007 respectively as against the conviction and sentence passed by the learned Judicial Magistrate No.II, Tirunelveli, Tirunelveli District, in C.C.No.41 of 2004 dated 22.06.2007 and to dispose of the same in accordance with law.

Prayer in Crl.O.P.No.7424 of 2007: Petition filed under Section 482 of the Code of Criminal Procedure, to direct the learned Principal District and Sessions Judge, Tirunelveli, Tirunelveli District to take the Criminal Appeal and petition for suspension of sentence filed by the petitioner in C.A.S.R.No.11853 of 2007 and Cr.M.P.S.R.NO.11852 of 2007 respectively as against the conviction and sentence passed by the learned Judicial Magistrate No.II, Tirunelveli, Tirunelveli District, in C.C.No.43 of 2004 dated 22.06.2007 and to dispose of the same in accordance with law.

For Petitioners ... Mr.R.Anand

For Respondent ... Mr.P.Rajendran Govt. Advocate (Crl.Side) :COMMON ORDER



These petitions have been focussed seeking the relief set out supra. 2. Heard both sides.

3. The background facts which are absolutely necessary for the disposal of these petitions would run thus:

(i) The police registered a case in Cr.No.6 of 2007 and investigated into the matter which resulted in the filing of the police report before the learned Judicial Magistrate No.II, Tirunelveli, who took it on file and after trial, convicted and sentenced the petitioners as under: Sl.No

C.C.Nos.

Convictions Recorded

Sentences Imposed

1

C.C.No.41 of 2004

A.1 and A.2:

u/s 477(A), 408 I.P.C.

Each to undergo twenty four months simple imprisonment under each of the penal sections and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment.

2

C.C.No.42 of 2004

A.2 and A.3:

u/s 408 read with 467 (2 counts), 471 (2 counts), 477(A) (2 counts) I.P.C. Each to undergo twenty four months simple imprisonment under each of the penal sections under each count and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment under each count. A.3:

u/s 406, 467, 471, 477(A) I.P.C.

To undergo twenty four months simple imprisonment under each of the penal sections and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment.

3

C.C.No.43 of 2004

A.2:

u/s 465, 467, 471, 477(A), 408 I.P.C.

To undergo twenty four months simple imprisonment under each of the penal sections and to pay a fine of Rs.1,000/- in default to undergo six months simple imprisonment.

(ii) The learned Magistrate ordered the sentences to run consecutively.

4. Being aggrieved by and dissatisfied with, the convictions and sentences passed, the petitioners preferred appeal before the learned Sessions Judge. However, the learned Sessions Judge was pleased to return it on the ground that consecutive sentences were imposed and the totality of the sentences, amounts to eight years and therefore, straight away, the appeal would lie only before the High Court. The fact remains that for C.C.No.41 of 2004, the sentences for each accused extend upto four years only.

5. Being aggrieved by and dissatisfied with, such a stand taken by the learned Sessions Judge, the petitioners herein have correctly approached this Court and argued the matter to the effect that whatever be the order of the Magistrate under the Code of Criminal Procedure, the appeal would lie only before the Sessions Court and not before the High Court.

6. In this connection, I would like to recollect Section 31 Cr.P.C and the same is reproduced hereunder for ready reference: "31. Sentence in cases of conviction of several offences at one trial. - (1) When a person is convicted at one trial of two more offences, the Court may, subject to the provisions of Section 71 of the Indian Penal Code, (45 of 1860), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court: Provided that -

(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;

(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3) For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this Section shall be deed to be a single sentence." (emphasis supplied)

7. Section 29(2) Cr.P.C would contemplate that a Magistrate of the first class could impose only a sentence of three years on convicting a person for an offence. As such, a conjoint reading of Section 29(2) and Section 31(2)(b) Cr.P.C would highlight that the maximum imprisonment which a Magistrate could impose on a person shall not exceed six years. But, in this case, the learned Magistrate imposed sentence of eight years imprisonment in the aggregate as against one person in C.C.No.42 of 2004 and ten years imprisonment in the aggregate in C.C.No.43 of 2004.

8. The question might arises as to how to reconcile with section 374(2) and (3) Cr.P.C and those provisions are extracted hereunder for ready reference: "374. Appeals from convictions.-

(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years [has been passed against him or against any other person convicted at the same trial], may appeal to the High Court.

(3) Save as otherwise provided in sub-section (2), any person,- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class or of the second class, or (b) sentenced under Section 325, or

(c) in respect of whom an order has been made or a sentence has been passed under section 360 by any Magistrate, may appeal to the Court of Session." (emphasis supplied)

9. Harmonious construction is the normal rule of interpretation of statues. Simply because, under Section 374(2) Cr.P.C inures to the benefit of the accused who was sentenced to more than seven years imprisonment, to file appeal before the High Court straight away from any Court. In the facts and circumstances of the case, relating to second and third cases cited supra, straight away appeal cannot be held to be maintainable before the High Court as the aggregate sentences passed as against one accused is quite antithetical to Sections 29 (2) and 31(2)(b) Cr.P.C. Based on, ex facie and prima facie illegal sentences passed by the learned Magistrate, the Sessions Court's jurisdiction would not be held to have been ousted and the learned Sessions Judge could ignore such illegal sentences and entertain the appeal. As such, in this case, all the three cases are deemed to be within the appellate jurisdiction of the learned Sessions Judge.

10. The learned Counsel for the petitioners also would appositely and correctly, convincingly and precisely submit that as per the stand taken by the learned Sessions Judge, if the appeal would lie only before the High Court, the petitioners would loose one right of appeal. Over and above that, in view of my discussion supra, whatever be the sentences passed by the learned Magistrate, the appeal would lie only before the Sessions Judge.

11. In this factual matrix, I would like to pass the following direction: The learned Sessions Judge irrespective of the irregularities in passing the sentences by the learned Magistrate, is directed to take up all the appeals and dispose them of on all points including the point of sentences, uninfluenced by any observations made in this order.

12. With the above direction, these petitions are disposed of. To

1.The Inspector of Police,

Commercial Crime Investigation Wing,

Tirunelveli, Tirunelveli District.

2.The Judicial Magistrate No.II,

Tirunelveli, Tirunelveli District.

3.The Principal District and Sessions Judge,

Tirunelveli, Tirunelveli District

4.The Public Prosecutor,


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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