A criminal Original petition was filed under Section 482 of Criminal Procedure Code asking the court to issue direction confirming that punishment of imprisonment convicted in two cheque Bounce Case should be undergone Concurrently and Not Consecutively.The matter was considered by Madurai Bench of Madras High Court.
The facts of the case was that a petitioner was prosecuted for offences under section 138 of Negotiable Instrument Act 1881 by two complainants.Though the trial court acquitted the petitioner,as a result of Complainants approaching the Additional District and Sessions Judge,the petitioner was found guilty and sentenced him to undergo one year simple imprisonment for each cases.The criminal petition was filed before Madras High Court seeking the issuance of direction that sentences passed shall run concurrently.
However,The High Court Noted that the appellate judge did not clearly give a direction that the imprisonments will not run concurrent to each other
The High Court observed that
“A closer reading of the provision would indicate that the condition precedent for the application of Section 427 of Cr.P.C is that the person must be already undergoing a sentence of imprisonment when he is convicted on a subsequent occasion and sentenced. 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 a warrant for its execution had been issued under Section 425 of Cr.P.C 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.”
Thus the bench said that for section 427(1) of Criminal Procedure Code to apply,the condition to be satisfied is that the person convicted and Sentenced on the subsequent occasion was already undergoing imprisonment in the previous case.If he was not undergoing the sentence,section 427(1) won’t apply at all.
The Court further made it clear that,
“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.”
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