[2016] 8 S.C.R. 166

BENSON

STATE OF KERALA

(Criminal Appeal No. 958of2016)

OCTOBER 03, 2016

[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]

Code of Criminal Procedure, 1973 - s.42? - Concurrent running of subsequent sentence with previous sentence - Appellant charged of having committed various offences - Tried separately and sentenced in each of the offences - Plea of appellant for concurrent running of sentences - Held: Court has the power and discretion to issue a direction that the subsequent sentence shall run concurrently with the previous sentence - Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed and the fact situation - On facts, sentence imposed on appellant in each of the present cases to run concurrently with the sentence imposed upon the appellant in another crime committed by him which is currently operative - Howeve1; this benefit limited in respect of substantive sentences and not on default sentences and sentences of fine.

Partly allowing the appeals, the Court

HELD: 1. In terms of sub-section (1) of Section 427 of Cr.P.C., if a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Going by this normal principle, in the instance case the sentence chart indicated in communication mentioned is quite correct. However this normal rule is subject to a qualification and it is within the powers of the Court to direct that the subsequent sentence shall run concurrently with the previous sentence. [Para 6][174-G-H; 175-A)

2. In the present case, the appellant stands convicted and sentenced in 12 different matters including the present 4 matters.

The maximum sentence in respect of the present crimes is two

years' rigorous imprisonment. As per the record, these crimes A were committed on the same day. Having considered the matters, the sentences imposed in each of the present 4 cases (which appear at serial nos.9, 10, 11 and 12 of the chart/communication received from the Director General of Prisons & Correctional Services) shall run concurrently with the sentence imposed in 8 crime no.8 which is currently operative. This benefit is granted in respect of substantive sentences to the appellant but the sentences of fine and the default sentences arc maintained. If the fine as imposed is not deposited, the default sentence or sentences are to run consecutively and not concurrently. [Paras

4, 9)174-A; 176-B-D] C

V.K. Bansal v. State of Haryana (2013) 7 SCC 211 : :Z013 (7) SCR 617 - referred to.

Case Law Reference

2013 (7) SCR 617 referred to Para 7

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 958of2016.

From the Judgment and Order dated 16.09.2015 of the High Court ofKerala at Ernakulam in Criminal Appeal No. 808 of2015

WITH

Criminal Appeal Nos. 957, 959 & 960 of2016.

Ranjith B. Marar, Ms. Lakshmi N. Kaimal and T. K. Babu, Advs. for the Appellant.

G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms. Beena Prakash, Manu Srinath and Ramesh Babu M. R., Advs. for the Respondent.

The Judgment of the Court was delivered by

UDAY UMESH LALIT, J. I. Leave granted. These appeals . G by Special Leave arise out of judgments and orders passed by the High Court of Kerala in Criminal Revision Petition Nos. (i) 808 of 2015 on

16.09.2015, (ii) 859of2015 on 16.09.2015, (iii) 858of2015 on 14.09.2015 and (iv) 670of2015 on 17.09.2015.

2. On the allegation that the appellant was involved in committing thefts he was charged of having committed offences on different occasions and was separately tried in i) CC No.158 of 2004 before Judicial Magistrate First Class, Chavakkad for offences punishable under Section 379, 414 read with 34 !PC, ii) CC No.1039 of2003 by Judicial B Magistrate First Class, Chavakkad for offences punishable under Section 379, 414 read with 34 !PC, iii) CC No.390 of2004 by Judicial Magistrate First Class, Chavakkad for offences punishable under Section 3 79, 414 read with 34 !PC and (iv) CC No.1168 of2006 by Judicial Magistrate First Class, Kunnamkulam. By separate judgments, the appellant was convicted and sentenced in each of the aforesaid crimes. The respective C appeals preferred by the appellant were dismissed by the Sessions Judge, Thrissur. The appellant filed Criminal Revision Petitions in the High Court which were also dismissed. The following chart would disclose the relevant details:-

C.C.'.\'o,[ Date Date of CrL Appeal CrL

SLP Offence of Conviction and '.\'o.

R.P. '.\'o. occurrence Sentence by '.\'o. in Judicial the

E Magistrate High First Class Court 15&2004 03.06.2003 28.06.06, 5312012

80R

SLP in the Court RI for 2 years decided on 2015 (Cr!.) of Judicial and fine of 15.11.2012 3757,' Magistrate First Rs.1,000/- for by Sessions 2016 Class (in shon offence u!s 379 Judge, F

JMFC), IPC and RI for 2 Thrissur Chmkkad! years u/s 414 ID U/s 379, 414 ri\'' RI for 3 months 34 ofIPC G

1039;2003 in the Court ofJMFC, Chavakkad/ U!s 379, 414 r;\v

34 of!PC

3902004 in the Court of JMFC, Chavakkadl Uis 379, 414 r/w 34ofIPC

1168/2006 in the Court ofJMFC, Kunnamkulam!

U.s 379 r/w 34 of!PC

[UDAY UMESH LAUT, J.]

03.06.2003 28.06.06, 7592011 RI for 2 years decided on and fine of 17.09.2012

Rs.l.OOO:- for by Sessions offence u!s 3 79 Judge, !PC and RI for 2 Turissur years for offence u/s 414 !PC, ID RI for 3 months. 03.06.2003 28.06.06, 7612011 RI for 2 years decided on and fine of 04.08.2012 Rs.1,000.'- for by Sessions offence u:s 379 Judge, !PC and RI for 2 Turissur years u.!s 414 ID RI for 3 months 03.06.2003 31.12.08,

46L201!

RI for 1 year decided on and fine of 30.09.2011 Rs.1,000'- !D SI by Sessions for 6months Judge, Tiuissur

859!

SLP 2015 (Cd.)

858.

SLP 2015 (CrL) 3758/

670!

SLP 2005 (Cr!.) 3756/

3. These matters came up on 22.04.20 I 6 when this Court noted

the submissions of the learned counsel for the appellant regarding concurrent running of sentences and issued notice to the State. The learned counsel appearing for the State has produced before us communication dated 27.05.2016 from the Director General of Prisons G and Correctional Services, which is as under:-

WPl-9606/2016

From

"PRISONS HEADQUARTERS,

THIRUVANANTHAPURAM

Dated: 27.05.2016

The Director General of Prisons &

Correctional Services.

The Law Officer,

C Office of the Resident Commissioner,

Travancore Palace,

Kasturba Gandhi Marg,

New Delhi-110 001.

Sir,

SL No. 1

Sub: Prisons - Prisons Headquarters, Kerala - Supreme Coui1 case - SLP (Crl) CRLMP No.6727/2016/Benson vs. State of Kerala - reg.

Ref: Lr. No.38749/81/2016/Home dtd.19/05/2016

Attention is invited to the subject & reference cited.

I may furnish the details called for vide reference is noted below:

Conviction Details

Case No., Court Sentence Details and Warrant Date cc 613i03 Sentenced to undergo RI for3 years uis 379 JFCM I, Thrissur

IPC Wdt.20-11-2003 Set off97 days. Atlarge bail period -153 days. cc 533;04 Sentenced to undergo RI for 2 years ufs 392 JFMC II, Thrissur

IPC Wdt.8-6-2005 Set off 521 days. cc 529!04 Sentenced to undergo RI for 3 years ufs 392 JFMC II, Thrissur

IPC, w dt.18-6-2005 Set off 493 days

[UDAY UMESH LAUT, J.]

CC 1270113 JFCM Sentenced to undergo RI for 2 years +fine Changanassery Rs.50001id SI for 1 month u/s 380 IPC, RI Wdt.18-6-2005 for 2 years + fine Rs.5 ,000!- L'd SI for I month uis 457 IPC (Concurrently) Set of 348 days

CC 1115103 JFCM Sentenced to undergo RI for 2 years +fine Irinjalakk11da Rs.2,000/- i!d SI for 2 months u/s 379 IPC Wdt. 4-7-2005 Set off 402 davs cc 932105 Sentenced to undergo RI for 2 years +fine JFMC Irinjalak11da Rs-2,000,- L'd SI for 2 months 11's 379 IPC Wdt.4-7-2005 Set off 465 days cc 171105 Sentenced to widergo RI for 5 years u.s 392 ADSJ Adhoc II !PC, RI for 3 years u/s 120(B) IPC Kana yam (ConC\llrently) Set off 418 days.

Wdt.25-11-2005

cc 274,06 Sentenced to undergo SI for 3 years us 205 JFCM Kodwigallur

!PC Wdt.30-9-2008 Set off 414 days cc 158/04 Sentenced to undergo RI for 2 years + fme JF CM Cha va.kkad Rs.1,000. - iid SI for 3 months u's 3 79 IPC, w dt.28-6-2006 RI for2 years us 414 !PC (Concurrently) Set off347 days

CC 1039'03 JFCM Seutenced to undergo RI for 2 years .,. fine Chavakkad Rs.1,000i'd SI for 3 months ws 379 !PC, RI \Vdt. 28-6-2006 for 2 years u.'s 414 !PC (Concurrently)

Ser off 240 days cc 39004 Sentenced to undergo RI for 2 years +fine JFCM Chavakkad Rs.1,000i'd SI for 3 momhs 11s 379 IPC, RI Wdr.28-6-2006 for 2 years ws 414 !PC (Concurrently) Set off 14ldays cc 1168,06 Sentenced to undergo RI for 1 year t fine

JFCM Rs.1,000 Ld SI for 2 months uis 379 r/w 34 Kunnamangalam !PC Set off 14 days Wdt.31-12-2008

Sentence Calculation S.No.

Case No.

Sentence Calculation

1n Sentence Started 20-11-2003 B 1 cc 613/03 Sentence 3 years 19-11-2006 JFCM I, Thrissur Set Off 9 7 days 14-08-2006 At large 153 days 14-01-2007

) cc 533/04 2ui Sentence Started 14-01-2007 JFCM II, Thrissur Semence 2 years 14-01-2007 Set off 521 days 12-08-2009 c

3 cc 529<04 3m Sentence Started 12-08-2009 JFCM II, Thrissur Sentence 3 years 12-08-2010 Set off 49 3 davs 06-04-2009 4

CC 1270.'13 JFCM 4± Sentence Started 06-04-2009 Changanasseiy Sentence 2 years 06-04-2011 D

Set off 348 days 23-04-2010 5

CC 115/03 JFCM 5± Sentence Started 23-04-2010 I hinjalili:uda Semence 2 vears 23-04-2012

E Set off ~02 days lS-03-2011

I 6 cc 932'05 6&. Sentence Staned 18-03-2011 I JFCM Irinjalakuda Sentence 2 yms lS-03-2013 Set off 465 days

. 09-12-2011 7

SC 171/05 /t't. Sentence Started 09-12-2011 F ADSJ Adhoc II, Sentence 5 years 09-12-2016 Kottayam Set off 418 days 18-10-2015 s cc 27t06 Stt. Sentellce Staned 18-10-2015 JFCM Kodullgallur Sentence 3 years 18-10-2018 Set off~ 14 days 30-08-2017

' 9 cc 1ss.o.i 9:: Sentence Stanrd

30-0S-~017 I IF C ?>I C!ma:.; kad Senteuce 2 wats

30-0S-~019 I

I I Set off 34 7 davs 17-09-2018

[UDAY UMESH LALJT, J.]

CC 1039/03 JFCM 1 OU: Sentence Started Chavakkad Sentence 2 years Set off 240 days cc 390/04 11 tl: Sentence Started

JFCM Sentence 2 years Chavakkad Set off lH days cc 1168106 !2U: Sentence Started

JFCM Sentence 1 year Kunnamangalam Set off 14 days Fine Sentence

Details

17-9-201& 17-09-2020 21-01-2020

21-01-2020 21-01-2022 02-09-2021 02-09-2021 02-09-2022 19-08-2022

19-10-2022 (F4)

19-12-2022

(F5) 19-02-2023

(F6) 19-05-2023

(F9) 19-08-'.l023 (FlO)

19-11-2023

(11) 19-05-2024

tF12)

As per the records, he wi II spend 12 years 3 months and 8 days in prison as on 31 /07/2016.

His date of expiry of substantive sentence falls on 19-08- 2022 without any remission. He has already earned 3 years

I 0 months 27 days remission as on 26-05-16. He has to pay fine ofRs.18,000/- in various cases in default he has to undergo I year 5 months in Jail.

Yours faithfully,

Sd/- Director General of Prisons & Correctional Services"

1-1

4. According to the aforesaid communication, the appellant stands convicted and sentenced in 12 different matters including the present matters which appear at Serial Nos.9, I 0, 11 and 12 in the chart. Going by the sentence calculation, the sentence in the 9'h case would begin on 30.08.2017 and finally, the sentence in the J 2•h case, after getting all benefits of set off, would be over on 02.09.2022.

5. Section 427 of the Code of Criminal Procedure, 1973 is as under:-

"427. Sentence on offender already sentenced for another offence. -(I) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such . previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2)When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."

6. In terms of sub-section (I) of Section 427, ifa person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment, such subsequent tenn of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. Going by this normal principle, the sentence chart indicated in the communication dated 27.05.2016 is quite correct.

However this normal rule is subject to a qualification and it is within the

BENSON v. STATE OF KERALA 175

[UDAY UMESH LAUT, J.]

powers of the Court to direct that the subsequent sentence shall run A concurrently with the previous sentence.

7. In V.K.Bansal v. State of Haryww amt A11otl1er1 it was stated by th is Court:

"It is manifest from Section 427(1) that the Court has the power and the discretion to issue a direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along the judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts.

There is no cut and dried formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427( I). Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed, and the fact situation in which the question of concurrent running of the sentences arises."

This Court then went on to club various crimes in respect of which sentences were imposed upon the appellant therein in three groups; i) the first having 12 cases, ii) the second having 2 cases and iii) the third having a single case. This Court directed that substantive sentences within first two groups would run inter se concun-ently and the substantive sentences in first two groups and that in respect of the case in the third group would run consecutively. The benefit was confined only in respect of substantive sentences and no qua sentences in default.

8. We have gone through the record and considered rival submissions. We do not find anything incorrect in the assessment made by the Courts below and in our view the orders of conviction recorded against the appellant in the present cases are quite correct. We also do not find anything wrong in the quantum of sentence imposed in respect of the respective crimes. However going by the sentence calculation, the sentence imposed in respect of the first crime sta1ied with effect from 20.11.2003 and the last sentence would be over by 19.08.2022, which would effectively mean that the total length of sentences in aggregate would be around 19 years. We are not concerned with first

(2013) 7 sec 211

eight matters and sentences imposed in respect of those crimes. The sentence in respect of 8'h crime is presently running against the appellant and would be over on 30.08.2017.

9. The maximum sentence in respect of the present crimes is two years' rigorous imprisonment. As per the record, these crimes were committed on the same day. Having considered the matters, we deem it appropriate to direct that the sentences imposed in each of the cases, i.e. (i) CC No.158 of2004, (ii) CC No. I 039 of2003, (iii) CC No. 390 of 2004 and (iv) CC No. 1168 of 2006 namely those at Sl.Nos.9 to 12 respectively as indicated in the sentence chart in the communication dated 27.05.2016 shall run concurrently with the sentence imposed in Crime No.8 which is currently operative. We grant this benefit in respect of substantive sentences to the appellant but maintain the sentences of fine and the default sentences. If the fine as imposed is not deposited, the default sentence or sentences will run consecutively and not concurrently.

I 0. The appeals are thus allowed in part and the orders of sentences stand modified accordingly.

Ankit Gyan Appeals partly allowed.