Madras High Court
Eric Muline Nthuli vs The State By The Superintendent Of ... on 27 January, 2026
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
CRL OP No. 32 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27-01-2026
CORAM
THE HON'BLE MR JUSTICE A.D.JAGADISH CHANDIRA
CRL OP No. 32 of 2026
Eric Muline Nthuli
S/o. Howhing Nthuli,
Convict Prisoner (PID No.38495),
Central Prison-1, Puzhal, Chennai-600 066. ..Petitioner
Vs
1. The State by The Superintendent of Central
Prison-1,
Puzhal, Chennai-600066.
2. The Inspector of Police
All Women Police Station,
Ammapet, Salem.
in Crime No.12/2016.
3. The Inspector of Police
Ammapet Police Station,
Salem District.
Crime No.783/2015.
..Respondents
Criminal Original Petition filed under Section 528 of the Bharatiya
Nagarik Suraksha Sanhita, 2023, to pass an order to undergo the imprisonment
imposed on the petitioner/accused in C.C.No.33 of 2016 vide judgment dated
08.12.2021 on the file of the learned Judicial Magistrate No.5, Salem along with
the sentence imposed on the petitioner/Accused in SC.No.138 of 2017 vide
judgment, dated 02.04.2019 on the file of the learned Sessions Judge, Mahila
Court, Salem.
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CRL OP No. 32 of 2026
For Petitioner : Mr.M.Fazulul Haq
for M/s.Juris And Justia
For Respondents : Mr.K.M.D. Muhilan
Additional Public Prosecutor
ORDER
This Criminal Original Petition has been filed to pass an order to undergo the imprisonment imposed on the petitioner/accused in C.C.No.33 of 2016 vide judgment dated 08.12.2021 on the file of the learned Judicial Magistrate No.5, Salem, along with the sentence imposed on the petitioner/Accused in SC.No.138 of 2017 vide judgment, dated 02.04.2019 on the file of the learned Sessions Judge, Mahila Court, Salem.
2. The petitioner is a Kenyan national. While he was studying in Salem, he was arrested in respect of a case registered in Crime No.783 of 2015 for the offences under Sections 279 and 304-A of the IPC and Section 181 of the Motor Vehicles Act, 1988. The respondent Police, after completion of the investigation, filed a final report and the same was taken on file by the learned Judicial Magistrate No.5, Salem, in C.C.No.33 of 2016. While he was on bail, he was again arrested on 03.12.2016 in respect of a case registered in Crime No.12 of 2016 for the offences under Sections 342, 506(i), 352 and 376(1) of IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act.
After arrest, the petitioner was not granted bail. The respondent Police, after completion of the investigation in Crime No.12 of 2016, filed a final report and Page2 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 the same was taken on file in S.C.No.138 of 2017 on the file of the learned Sessions Judge, Mahila Court, Salem. The trial in S.C.No.138 of 2017 was completed and the petitioner was found guilty and imposed with the punishment as follows:
Sl. Sections Punishment imposed
No.
1 342 IPC 1 year Rigorous Imprisonment and Rs.1,000/- as fine, in
default, 3 months Simple Imprisonment.
2 506(I) IPC 2 years Rigorous Imprisonment and Rs.1,000/- as fine, in
default, 6 months Simple Imprisonment.
3 352 IPC 3 months Simple Imprisonment and Rs.500/- as fine, in
default, 1 week Simple Imprisonment.
4 376(I) IPC Life Imprisonment and Rs.5,000/- as fine, in default, 6
months Simple Imprisonment.
5 4 TNPHW Act 3 years Rigorous Imprisonment and Rs.1,000/- as fine, in
default, 6 months Simple Imprisonment.
3. Challenging the same, the petitioner filed an appeal before this Court in Crl. A.No.316 of 2019 and a Division Bench of this Court, by judgment dated 21.08.2020, reduced the sentence of Life Imprisonment to 10 years of Rigorous Imprisonment. However, the petitioner has been in prison from 03.12.2026 to till date.
4. While so, the trial in C.C.No.33 of 2016 was completed by the learned Judicial Magistrate No.5, Salem and the petitioner was found guilty and imposed with the punishment vide judgment dated 08.12.2021 as follows:
Page3 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 Sl. Sections Punishment imposed No. 1 279 IPC 6 months Simple Imprisonment and Rs.1,000/- as fine, in default, 1 month Simple Imprisonment.
2 304-A IPC 1 year Simple Imprisonment and Rs.1,000/- as fine, in default, 1 month Simple Imprisonment.
3 181 of MV 3 months Simple Imprisonment and Rs.500/- as fine, in
Act default, 1 month Simple Imprisonment.
5. Therefore, the present petition has been filed to direct the sentences of imprisonment imposed on the petitioner by the learned Judicial Magistrate No.5, Salem, in C.C.No.33 of 2016 to run concurrently with the sentence of imprisonment imposed by the learned Sessions Judge, Mahila Court, Salem, on him in S.C.No.138 of 2017.
6. The learned counsel for the petitioner submitted that the petitioner has been in prison from the date of his arrest i.e., 03.12.2016 and the learned Judicial Magistrate No.5, Salem, while convicting the petitioner in C.C.No.33 of 2016 ought to have directed the sentences of imprisonment imposed on the petitioner in C.C.No.33 of 2016 to run concurrently along with the sentence of imprisonment imposed on the petitioner in S.C.No.138 of 2017, whereas, the learned Judicial Magistrate No.5, Salem, has not done so and therefore, there is no clarity as to whether the petitioner has to undergo the sentences of imprisonment concurrently or consecutively. Hence, the petitioner has approached this Court with the instant petition.
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7. The learned Additional Public Prosecutor appearing for the respondent police submitted that the trial was conducted by two different Courts and the power to order sentences to run concurrently or consecutively is the discretion of the trial Court concerned. He further submitted that this Court has got the power to exercise the discretion.
8. Heard the learned counsel appearing for the petitioner, the learned Additional Public Prosecutor appearing for the respondent Police and perused the materials available on record.
9. The petitioner was convicted and sentenced to undergo life imprisonment for the major offence under Section 376(1) of IPC by the learned Sessions Judge, Mahila Court, Salem and the same was reduced to 10 years of rigorous imprisonment by a Division Bench of this Court in Crl.A.No.316 of 2019 vide judgment dated 21.08.2020 and as far as the case in C.C.No.33 of 2016 is concerned, the petitioner was convicted and inter alia sentenced to undergo the simple imprisonment of one year for the offence under Section 304- A of IPC.
10. In this regard, it is relevant to rely upon the judgment of the Division Bench of this Court reported in 2018-2-LW(Crl)773 in the case of Selvakumar Vs. The Inspector of Police, Seidhunganallur Police Station and Page5 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 ors. wherein it has been held as follows:-
"11.The scope of Section 427(2) of Cr.P.C. is that in respect of the convict undergoing imprisonment for life, the sentence of the imprisonment passed on subsequent conviction shall run concurrently. The reason being that the sentence for life must be understood to mean as the sentence to serve remainder of life in prison unless commuted or remitted by the appropriate authority and the person having only one life span, the sentence on the subsequent conviction of imprisonment for a term of imprisonment for life can only be superimposed the earlier life sentence and certainly not added to it.
12.A. A Division Bench of this Court had an occasion to consider a case of similar nature in K. Arasan and others Vs. The State of Tamil Nadu, reported in MANU/TN/1953/2012 : 2012 (6) CTC 510. The relevant portion of the judgment is extracted hereunder.
"2. The crux of the question involved in this matter is that whether this Court can invoke the inherent powers under Section 482 of the Code of Criminal Procedure [hereinafter referred to as "Cr.P.C"] for granting the relief under Section 427, Cr.P.C, for ordering the sentence imposed in the former case to run concurrently along with the sentence of imprisonment awarded in the latter case.
3. It is seen that two conflicting views expressed by two learned Single Judges in respect of invoking the jurisdiction under Section 482, Cr.P.C for granting the relief of ordering the subsequent sentence to run concurrently with the previous sentence awarded against a person in an earlier case which necessitated the learned referring Single Judge to refer the matter to a Division Bench to resolve the said conflict between two decisions. It is seen that a learned Single Judge in A. Palanisamy @ Kaithan v. Inspector of Police, B1 Police Station, Kadaiveethi, Coimbatore, 2011 (3) MWN (Cr.) 555 : 2011 (4) MLJ (Crl.) 813, after referring Page6 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 to various judgments of the Hon'ble Apex Court, has held in paragraph 27, as here-under.
27. In the instant case on hand also, the provision of Section 427, Cr.P.C was not invoked either in the original cases or in the Appeals. Under the above said circumstances, Section 427, Cr.P.C cannot be applied in a separate and independent proceedings by this Court in exercising the inherent jurisdiction under Section 482, Cr.P.C.
4. Another learned Single Judge in A. Paulraj v. Maria Chellammal, 2011 (4) MLJ (Crl.) 798, has taken a contrary view by placing reliance on the decision of the Larger Bench of the Hon'ble Apex Court and held as hereunder:
"26. Since the Larger Bench of the Supreme Court in State of Punjab v. Madhan Lal [supra] had considered on Application filed, under Section 482, Cr.P.C the decision rendered in M.S Kudva v. State of Andhra Pradesh [supra] may not be applicable and invoking jurisdiction under Section 482, Cr.P.C is indeed available to the Petitioner."
5. We have gone through the above two conflicting decisions rendered by the two learned Single Judges. 13.0. It is pertinent to refer the following decisions rendered by the other High Courts in respect of the issue involved in this matter. 13.1. A Division Bench of the Andhra Pradesh High Court in V. Venkateswarlu v. State of A.P, 1987 Cri.L.J 1621, has held as here under:
"10. The High Court, while exercising its Revisional jurisdiction suo motu or in exercise of its inherent power under Section 482, can direct the sentences to run concurrently as provided under Section 427, Cr.P.C, even though the convictions and sentences that have been passed by the Additional Sessions Judges of different Sessions Divisions have become final."
Page7 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 13.2. A Full Bench of Madhya Pradesh High Court in Shersingh v. State of M.P, 1989 Cri.LJ 632 [1] has held as hereunder:
"Inherent powers of the High Court can be invoked under Section 482 even if the Trial Court or the appellate or Revisional Court has not exercised its discretion under Section 427(1) of the Code in directing running of previous and subsequent sentences concurrently. The inherent powers of the High Court is not in any way fettered by the provisions of Section 427(1) and it can be invoked at any stage even if there is no such order passed under Section 427(1) by the Trial Court or Appellate or Revisional Court and even though the conviction has become final."
13.3. The view taken by the Division Bench of the Andhra Pradesh High Court and the Full Bench of the Madhya Pradesh High Court are in line with the view taken by the Larger Bench of the Hon-ble Apex Court in State of Punjab v. Madhan Lal, 2009 (5) SCC 238. As a matter of fact, as already pointed out, the learned Single Judge of this Court in A. Paulraj v. Maria Chellammal, 2011 (4) MLJ (Crl.) 798, also referred the decision of the Hon-ble Apex Court in M.R Kudva v. State of Andhra Pradesh, 2007 (2) SCC 772 (Two-Judge Bench) and preferred to place reliance on the decision rendered by the Larger Bench consisting of Three Judges of the Hon'ble Apex Court.
14.0. At this juncture, it is relevant to refer the following decisions of the Hon'ble Apex Court:
14.1. In Union of India v. K.S Subramanian, AIR 1976 SC 2433, the Hon'ble Apex Court has held as follows:
"The proper course for a High Court is to try to find out and follow the opinions expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller Benches of the Court. That is the practice followed by the Supreme Court itself. The practice has not crystallized into a rule of law declared by the Supreme Page8 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 Court. If however, the High Court is of the opinion that the views expressed by Larger Benches of the Supreme Court are not applicable to the facts of the case it should say so giving reasons supporting its point of view."
14.2 The Hon'ble Apex Court in State of Uttar Pradesh v. Ram Chandra, AIR 1976 SC 2547, has held as follows:
"Constitutional position as regards the powers of Court to go behind the orders of termination to find out motive of Government is clear. Even in cases where a High Court finds any conflict between the views expressed by larger and smaller Benches of this Court, it cannot be disregard or skirt the views expressed by the Larger Benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by Larger Benches of the Supreme Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law, is followed by the Supreme Court itself."
The above decisions rendered by the Hon'ble Apex Court make it crystal clear that the High Court has to follow the opinion expressed by the Larger Benches of the Hon'ble Apex Court in preference to those expressed by smaller Benches.
15. As far as the issue involved in this matter, we are of the considered view that the learned Single Judge in A. Paulraj v. Maria Chellammal, 2011 (4) MLJ (Crl.) 798, has rightly placed reliance on the decision of the Larger Bench consisting of Three Judges of the Hon'ble Apex Court in State of Punjab v. Madhan Lal, 2009 (5) SCC 238, which is binding on this Court and taken a correct view.
16. It is to be stated that invoking the jurisdiction under Section 482, Cr.P.C in order to grant the relief under Section 427, Cr.P.C would not amount to altering, varying or modifying the findings of the Trial Court or Appellate Court. On the other hand, Page9 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 it is always open to this Court to exercise power under Section 482, Cr.P.C to secure the ends of justice. It is needless to say that this Court has to exercise its judicial discretion for invoking the power under Section 482, Cr.P.C for granting the relief under Section 427, Cr.P.C, on the basis of the facts and circumstances and gravity of the charge levelled against the Accused in each case.
17. In the result, we are answering the reference to the effect that the inherent power of the High Court under Section 482, Cr.P.C, can very well be extended to issue a direction ordering the sentence imposed in a latter case on conviction to run concurrently with the sentence imposed in a former case as provided under Section 427, Cr.P.C."
6. In the case, on hand, it is seen that the petitioner was involved in two cases only viz., C.C.No.22 of 2017 and C.C.No.23 of 2017. The petitioner is not an habitual offender and he did not commit any other offences, similar to those cases. Further it is also seen that the learned Judicial Magistrate, Sathiyamangalam sentenced him to undergo imprisonment for a period of two years for both sentences viz., offences under Sections 454 and 380 of IPC to run concurrently.
The High Court of Bombay(Nagpur Bench) held as follows:
PRECEDENTS:
13. We are fortified in this view as per the judgment in case of Abidkhan @ Salman Mukhtar Khan Pathan vs. State of Maharashtra, reported in MANU/MH/0954/2013 : 2014 ALL Mr. (Cri.) 1719 (in which Justice Shukre authored the Judgment).
Three cases were tried and convicted by one Court. (Metropolitan Magistrate), whereas in case before us, two different Magistrate Courts (from two places) tried and convicted these petitioners. This is the oly distinguishable factor. Otherwise, the observation made therein are perfectly applicable to the case before us.
14. We are also fortified in taking this view on the basis of judgment delivered by Hon'ble Supreme Court. In case of Benson Page10 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 vs. State of Kerala, reported in MANU/SC/1177/2016 : (2016) 10 SCC 307, Hon'ble Supreme converted the sentence into concurrent sentences. There were almost 11 cases.
APPROACH OF TRIAL COURT:
15. It is true that Bhandara Court and Tumsar may or may not be aware of cases pending in two different Courts. But, it is certain that both these Courts are fully aware of cases dealt with by them. Can we say that these two courts are unaware about legal provisions contained in Section 427 of Cr.P.C. These two Courts have not given them the benefit of concurrent theory of sentences. These two Courts are fully aware about the provisions of Probation of Offenders Act and they have denied the benefit to the petitioners.
16. Ultimately, the Judicial Officers dealing with the case is also having human element on it. So, while convicting the petitioners, they must be having "repetitive tendency of these petitioners while committing these offences" in their mind. They were fully justified in denying them benefits of concurrent theory. The theory of deterrence must have weighed with their mind. But what we feel is that the trial Courts are unaware of these provisions of law. We say so because there is no discussion on this issue. Judge may consciously deny benefit. But, it must be reflected from the judgment. In case of Abidkhan, there was direction to place the matter before Registrar General. In order to sensitize the judges in the State of Maharastra, we feel some more needs to be done. Hence, we intend to direct the Registrar (Judicial) to circulate this judgment amongst all Judges in State of Maharashtra. We hope the Judges of trial Court and the appellate Court will consider the provisions of Section 427 of Cr.P.C. while dealing with the issue of sentence. Ultimately, it is the discretion of the concerned Judge whether to grant him benefit or not. It depends upon facts of each case. But it should not happened that due to ignorance of this provisions of law, a rightful convict may be denied benefit of this provision of law."
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10. In view of the above judgment, the scope of Section 427 of Cr.P.C. is that the sentence of imprisonment passed in the subsequent case for the offence of same nature shall go concurrently with the sentence imposed in the earlier case. It is also clear that this Court can exercise its jurisdiction under Section 482 of Cr.P.C. and issue direction in this regard.
11. In the case on hand, the petitioner was convicted for different offences in two different cases. In S.C.No.138 of 2017, he was convicted by the learned Sessions Judge, Mahila Court, Salem, to undergo life imprisonment which was later reduced to 10 years of rigorous imprisonment by a Division Bench of this Court in Crl.A.No.316 of 2019 vide judgment dated 21.08.2020 and the petitioner faced trial in C.C.No.33 of 2016 for the lesser offence under Section 304-A of IPC while he was in prison. Therefore, this Court is of the view that the sentences imposed on the petitioner in C.C.No.33 of 2016 on 08.12.2021 by the learned Judicial Magistrate No.5, Salem, should run concurrently with the sentence of imprisonment imposed on the petitioner in S.C.No.138 of 2017 on 02.04.2019 by the learned Sessions Judge, Mahila Court, Salem, and the learned Judicial Magistrate No.5, Salem, ought to have given set off to the petitioner invoking Section 428 of Cr.P.C.
12. In view of the above discussion, this Court, by exercising its Page12 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 discretion under Section 482 of Cr.P.C., directs that the sentence of imprisonment imposed on the petitioner in C.C.No.33 of 2016, on 08.12.2021 by the learned Judicial Magistrate No.5, Salem, should run concurrently along with the sentence of imprisonment imposed on the petitioner in S.C.No.138 of 2017 on 02.04.2019 by the learned Sessions Judge, Mahila Court, Chennai, which was later modified by a Division Bench of this Court in Crl.A.No.316 of 2019 on 21.08.2020. Further, the Prison authorities are directed to release the petitioner forthwith, if he had undergone the period of 10 years of rigorous imprisonment imposed in S.C.No.138 of 2017.
13. Accordingly, this Criminal Original Petition stands allowed.
27-01-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No SRM Note: Issue order copy on 03.02.2026 Page13 of 14 https://www.mhc.tn.gov.in/judis ( Uploaded on: 03/02/2026 08:32:08 pm ) CRL OP No. 32 of 2026 A.D.JAGADISH CHANDIRA, J.
SRM To
1. The Sessions Judge, Mahila Court, Salem.
2. The Judicial Magistrate No.5, Salem.
3. The Superintendent of Central Prison-1 Puzhal, Chennai-600066.
4. The Inspector of Police All Women Police Station, Ammapet, Salem.
5. The Inspector of Police Ammapet Police Station, Salem District.
6. The Public Prosecutor, High Court of Madras.
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