AJAI Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the 8th accused, who has been convicted in C.C.No.343/2015 of the Judicial First Class Magistrate Court-II, Mavelikkara for the offences under Ss. 143, 147, 148, 452, 324, 506(ii) and 109, read with Sec. 149 of the Penal Code and Sec. 27(1) of the Arms Act.

(2.) Annexure-A3 is the judgment. Petitioner was previously convicted in another case by the learned Special Judge, N.D.P.S, New Delhi in a case arising from F.I.R. No.4/2015 of the Special Cell. In that case, he was convicted to undergo rigorous imprisonment for a period of 10 years and fine of Rs.1.00 lakh. The judgment is produced at Annexure-A5. The grievance of the petitioner is that though the factum of previous conviction was brought to the notice of learned Magistrate - as could be seen from Annexure-A3 - still, the benevolent provision of Sec. 427 has not been invoked by the learned Magistrate. According to the learned counsel, the same is a mistake committed by the Magistrate, which is liable to be corrected. Learned counsel would point out that the Magistrate should have invoked Sec. 427 Cr.P.C. suo moto and failure to do so, cannot impact the rights of the petitioner. Learned counsel relies on the maxim 'actus curiae neminem gravabit' as has been successfully pressed into service in Jang Singh v. Brij Lal and Others [AIR 1966 SC 1631]. Learned counsel also relied upon a recent judgment of the Hon'ble Supreme Court in Iqram v. State of Uttar Pradesh [(2023) 3 SCC 184].

(3.) Per contra, this application was seriously opposed by the learned Senior Public Prosecutor. Referring to Sec. 427, learned Senior Public Prosecutor would submit that consecutive run of sentence is the rule, whereas there should be a specific direction for the sentence to run concurrently. Learned Senior Public Prosecutor relied upon the judgments of this Court in Jomon George v. State of Kerala and another [2022 (3) KHC 391] and also Sivanandan v. State of Kerala and Others [2021 (4) KHC 375].