Gujarat High Court
Senaul S/O. Afsar Shaikh vs State Of Gujarat on 15 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/3006/2018 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 3006 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
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SENAUL S/O. AFSAR SHAIKH
Versus
STATE OF GUJARAT
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Appearance:
MS SHILPA R SHAH(796) for the PETITIONER(s) No. 1
MR DEVANG VYAS(2794) for the RESPONDENT(s) No. 2
PUBLIC PROSECUTOR(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2018
CAV JUDGMENT
1. By this writ application under Article 226 of the Constitution of India read with sections 427 and 482 of the Cr.P.C., 1973, the applicant, a convict-accused, has prayed for Page 1 of 68 R/SCR.A/3006/2018 CAV JUDGMENT the following reliefs;
"(A) The Hon'ble Court may be pleased to issue appropriate writ, order or direction, and be pleased to direct to run the sentences concurrently imposed by judgment and order dated 20.3.2012 passed by the Ld. Sessions Judge in Sessions Case No.315 of 2010 as confirmed by judgment and order dated 7.9.2015 passed by this Hon'ble Court in Criminal Appeal No.586 of 2012 as well as the sentence imposed by judgment and order dated 17.12.2013 by Ld. Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.352 of 2011, as confirmed vide judgment and order dated 24.05.2016 by Ld. Additional Sessions Judge, Ahmedabad in Criminal Appeal No.425 of 2014, in the interest of justice;
(B) The Hon'ble Court may be pleased to dispense with the filing of affidavit as the facts are taken from records and proceedings of the case and the petitioner is in jail, in the interest of justice;
(C ) The Hon'ble Court may be pleased to grant such other and further relief(s) as are deemed fit and proper by this Hon'ble Court, in the interest of justice."
2. The case put up by the writ applicant, in his own words, as pleaded in the writ application, is extracted hereunder;
"3.1 The petitioner is the original accused and came to be convicted along with others by the Ld. Additional Sessions Judge, Ahmedabad on 20.03.2012 for the offences punishalbe u/s.489(B) and 489(C ) of the Indian Penal Code in Sessions Case No.315 of 2010 and was sentenced to suffer 10 years rigorous imprisonment and fine of Rs.5,000/- in default of payment of fine to undergo further SI for 6 months for the offences punishable u/s.489(B) of IPC and 3 years RI along with fine of Rs.3000/- in default of payment of fine to undergo further SI for 6 months for the offences punishable u/s.489(C) of IPC. Copy of judgment and order dated 20.3.2012 passed by the Ld. Sessions Judge in Sessions Case No.315 of 2010 is annexed herewith and marked as Annexure-A. Page 2 of 68 R/SCR.A/3006/2018 CAV JUDGMENT The petitioner challenged the aforesaid judgment and order dated 20.3.2012 convicting and sentencing the petitioner, before this Hon'ble Court vide Criminal Appeal No.586 of 2012. This Hon'ble Court (Coram: K.S. Jhaveri & G.B Shah JJ) was pleased to dismiss the appeal on 7.9.2015 and confirmed the aforesaid judgment and order of the Ld. Sessions Judge dated 20.3.2012. Copy of order dated 7.9.2015 passed by this Hon'ble Court in Criminal Appeal No.586 of 2012 is annexed herewith and marked as Annexure-B. 3.2 The petitioner was also tried u/s.135 of the Customs Act, 1962 r/w. Sec. 120(B) of Indian Penal Code for the very offences for which the petitioner came to be earlier convicted and sentenced, as stated above. That a separate complaint was filed by respondent No.2 in connection with the same offence against the petitioner and others. That the petitioner was convicted along with others by the Ld. Additional Chief Metropolitan Magistrate, Ahmedabad on 17.12.2013 for the offences punishable u/s.135 of the Customs Act, 1962 r/w. 120(B) of Indian Penal Code in Criminal Case No.352 of 2011 vide Exh.60 and was sentenced to suffer 3 years RI and fine of Rs.1000/-, in default to undergo further SI for 3 months for the offence punishable u/s. 135 of the Customs Act and 6 months SI for the offence punishable u/s. 120(B) of the Indian Penal Code. Copy of the judgment and order of conviction and sentence dated 17.12.2013 passed by the Ld. Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No.352 of 2011 is annexed herewith and marked as Annexure-C. The petitioner challenged the said order vide Criminal Appeal No.425 of 2014 before the Hon'ble Sessions Court. That the Ld. Sessions Judge was pleased to dismiss the Appeal of the petitioner and confirmed the judgment and order passed by the Ld. Additional Chief Metropolitan Magistrate, Ahmedabad on 24.5.2016. Copy of judgment and order dated 24.5.2016 passed by the Hon'ble Sessions Court in Criminal Appeal No.425 of 2014 is annexed herewith and marked as Annexure-D. 3.3 The petitioner at the time of hearing on the sentence submitted before the Ld. Sessions Judge Page 3 of 68 R/SCR.A/3006/2018 CAV JUDGMENT Ahmedabad in Criminal Appeal No.425 of 2014 that the sentences be made to run concurrently as the petitioner along with others has already been convicted for the very offences and is already undergoing sentence for the same. However, the Ld. Judge failed to consider the prayer made by the petitioner for directing the sentences to run concurrently. The result being the petitioner was tried, convicted and sentenced by two different courts for the same offence and will have to undergo each sentences consecutively amounting to double jeopardize and causing great injustice to the petitioner. The petitioner therefor is constrained to approach this Hon'ble Court by way of this petition.
3.4 The petitioner is bound to undergo the sentence as ordered by the Hon'ble Courts but to undergo the sentence twice one after another for the same offence, amounts to clear violation of Section 427 of the Criminal Procedure Code, 1973 and also Article 20(2) of the Constitution of India.
3.5 The petitioner submits that Art. 20(2) of the Constitution of India provides that "no person shall be prosecuted and punished for the same offence more than once." That this being the case, the Ld. Judge ought to have ordered the sentences of the petitioner to run concurrently to meet the ends of justice.
3.6 The petitioner submits that before both the Courts below, there was same set of evidence in the form of secret information, witnesses, documentary evidence, etc. That surprisingly, in the criminal case initiated by the respondent no.2, it has also been stated that the information was received from the Police Constable of Karanj Police Station and from thereon, the entire trial before the Ld. Additional Chief Metropolitan Magistrate Court, Ahmedabad proceeded on evidence collected by the Crime Branch. That this being the fact, the Ld. Judge ought to have accepted the prayer made by the petitioner and directed the sentences of the petitioner to run concurrently.
3.7 That the Ld. Judge while dismissing the prayer made by the petitioner, relied upon section 427(2) of the Criminal Procedure Code, 1973 and on the judgment of the Hon'ble Apex Court reported at AIR 1988 SC 2210.
Page 4 of 68 R/SCR.A/3006/2018 CAV JUDGMENTHowever, the learned Judge failed to appreciate the provisions of Section 427 of Cr.P.C in its true perspective. That the Learned Judge also failed to appreciate the ratio laid down by the Hon'ble Apex Court in its right spirit.
3.8 The Learned Judge failed to appreciate that it would be section 417(1) of Cr.P.C which would be applicable to the case of petitioner and not sec. 427(2) of Cr.P.C which enumerates persons undergoing sentence of life imprisonment.
3.9 That Learned Judge has also failed to appreciate that it is the discretion of the Hon'ble Court while passing sentence to direct the sentences to run concurrently if the offences are same and the transactions are same but the enactments are different. That the Learned Judge ought to have considered sec. 427(2) of Cr.P.C and exercised the right discretion in favour of petitioner thereby not causing double jeopardize to the petitioner.
3.10 The petitioner who is undergoing sentence of 10 years Rigorous Imprisonment passed by the Hon'ble Sessions Court in Sessions Case No. 315 of 2010, will have to undergo 3 years Rigorous Imprisonment passed by the Ld. Additional Chief Metropolitan Magistrate in Criminal Case No.352 of 2011 confirmed by Hon'ble Sessions Court in Criminal Appeal No.425 of 2014, once the sentence of 10 years Rigorous Imprisonment is completed. That thus, the petitioner shall have to undergo two sentences for one offence.
3.11 The petitioner states that the Ld. Judge not allowing the prayer of the petitioner for directing the sentences to run concurrently, is not only violative of Art. 20(2) of the Constitution of India but is also in breach of principles of natural justice."
3. Thus, it appears from the materials on record that the writ applicant was first tried by the court concerned for the offence punishable under sections 489(B) and 489(C ) of the Indian Penal Code in the Sessions Case No.315 of 2010 and was convicted and sentenced to undergo rigorous imprisonment for a period of 10 years with fine of Rs.5,000/-.
Page 5 of 68 R/SCR.A/3006/2018 CAV JUDGMENTThe writ applicant was, thereafter, tried for the offence punishable under section 135 of the Customs Act, 1962 read with section 120(B) of the IPC and came to be convicted by the Addl. Chief Metropolitan Magistrate and was sentenced to suffer 3 years rigorous imprisonment with fine of Rs.1,000/-.
4. The question that falls for my consideration is whether the sentence imposed in the two cases should run concurrently or consecutively. It is brought to my notice that the writ applicant has already undergone 10 years of rigorous imprisonment so far as the conviction for the offence punishable under sections 489(B) and 489(C) of the IPC is concerned. As the courts did not clarify with regard to the sentences to run concurrently or consecutively, the writ applicant has not been released and has been asked to now undergo 3 years of rigorous imprisonment so far as the offence punishable under section 135 of the Customs Act, 1962 is concerned.
5. It appears that the writ applicant was found to be in possession of counterfeit notes. The investigation revealed that the counterfeit notes were printed in Bangladesh and those were smuggled into India. Therefore, two separate prosecutions came to be instituted against the writ applicant, one for the offence under section 489 of the IPC and another for the offence under section 135 of the Customs Act.
6. Ms. Shilpa Shah, the learned counsel appearing for the writ applicant vehemently submitted that the act of illegally importing the counterfeit notes into India from Bangladesh and, thereafter, circulating the same within the territorial limits Page 6 of 68 R/SCR.A/3006/2018 CAV JUDGMENT of India, may constitute two distinct offences, but both the offences could be said to be part of one single transaction. To put it in other words, the submission of Ms. Shah is that if a person is found to be in possession of the counterfeit notes, then he is liable to be prosecuted for the offence under sections 489(B) and 489(C ) of the IPC, and at the same time, for the act of illegally importing such notes from a foreign country, there can be prosecution for the offence under section 135 of the Customs Act. However as the entire transaction could be said to be one composite transaction, meaning to say one single transaction, the courts below should have ordered the sentences in both the cases to run concurrently.
7. In such circumstances, referred to above, Ms. Shah prays that there being merit in this writ application, the same be allowed and it be ordered that the sentences shall run concurrently.
8. On the other hand, this writ application has been vehemently opposed by Mr. Devang Vyas, the learned Asst. Solicitor General of India appearing for the respondent No.2. This application has also been opposed by the learned APP appearing for the State of Gujarat.
9. Mr. Vyas, the learned Asst. Solicitor General of India submitted that the issue raised herein is no longer res integra in view of the decision of the Supreme Court in the case of Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs (Prevention) Ahmedabad & Anr., (1988) 4 SCC 183. He submitted that the Supreme Court, in Ibrahim Ahmed Bhatti (supra) has settled the law Page 7 of 68 R/SCR.A/3006/2018 CAV JUDGMENT that if a given transaction constitutes two offences under two enactments, generally it is wrong to have consecutive sentences but this rule has no application if the transaction relating to the offences is not the same or the facts constituting the two offences are quite different. According to Mr. Vyas, the act of illegally importing the counterfeit notes from Bangladesh, constitute an offence under section 135 of the Customs Act, whereas the circulation of the counterfeit notes within the territorial limits of India amounts to an offence under section 489 of the IPC. According to Mr. Vyas, having regard to the facts of the case, the transaction relating to the two distinct offences is not the same and the facts, constituting the two offence are quite different.
10. Mr. Vyas pointed out that the decision of the Supreme Court in the case of Ibrahim Ahmed Bhatti (supra) came to be considered by a Division Bench of this Court in the case of Safuddin Suleman vs. State of Gujarat & Ors., (2004) 1 GLH 254. The Division Bench of this Court took the view that as the applicant therein came to be convicted in two different cases for two different offences, he was not entitled to the benefit of section 427 of the Cr.P.C. The Division Bench, by placing reliance on the Supreme Court decision, referred to above, rejected the application filed by the convict.
11. In such circumstances, referred to above, Mr. Vyas prays that there being no merit in this application, the same be rejected.
12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the Page 8 of 68 R/SCR.A/3006/2018 CAV JUDGMENT only question that falls for my consideration is whether the writ applicant is entitled to the relief prayed for in this writ application.
13. Before adverting to the rival submissions canvassed on either sides, it would be appropriate to look into few provisions of law.
14. Section 31 of the Cr.P.C. is with regard to the sentence in cases of conviction of several offences at one trial. Section 31 is extracted hereunder;
31. Sentences in cases of conviction of several offences at one trial.
(1) When a person is convicted at one trial of two or 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 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 deemed to be a single sentence."Page 9 of 68 R/SCR.A/3006/2018 CAV JUDGMENT
15. Section 427 of the Cr.P.C. is also relevant and is extracted hereunder;
"427. Sentence on offender already sentenced for another offence.
(1) 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 imprison- ment 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 con- currently with such previous sentence."
16. Let me now look into the two decisions, on which strong reliance has been placed by Mr. Vyas. In Ibrahim Ahmed Bhatti (supra), the appellant of Foreign National was charged under section 85(1)(ii) of the Gold (Control) Act pursuant to the seizure of 7000/- tolas of gold of foreign mark of the value of 1.4 crores from his possession. He pleaded guilty to the charge. Accordingly, he was convicted and sentenced to the maximum punishment of imprisonment for seven years and fine of Rs.10 Lakh prescribed under section 85(1)(ii) of the said Act. On appeal, the High Court confirmed that sentence but reduced the fine to Rs.5 Lakh. The Special Leave Petition filed Page 10 of 68 R/SCR.A/3006/2018 CAV JUDGMENT by the appellant was dismissed by the Supreme Court. That conviction and sentence became final. While the appellant was in judicial custody, a further investigation was conducted, and on that basis, a complaint was filed alleging that the appellant, along with 18 others, had imported the gold worth Rs.12.5 crore and smuggled out of India silver worth Rs.11.5 crores during December, 1981 to February, 1982. He, along with others, was prosecuted under section 135 of the Customs Act. He again pleaded guilty to the charge though others did not do so. The Trial Court convicted him under section 135 and sentenced him to 4 years rigorous imprisonment and a fine of Rs.2 Lakh and on failure to pay the fine to further rigorous imprisonment for six months. The sentences were ordered to run consecutively. The Trial Court considered it not reasonable to again impose the maximum penalty under section 135 and showed some mercy as the accused had pleaded guilty. The High Court, on appeal, enhanced the sentence from 4 years to the maximum prescribed punishment of 7 years having regard to the enormity of the crime committed by the appellant. Accordingly, he was asked to serve, in all, 14 years imprisonment which he challenged before the Supreme Court. The Supreme Court held as under;
"8. Section 427 Cr.P.C. incorporates the principles of sentencing an PG NO 751 offender who is already undergoing a sentence of imprisonment. The relevant portion of the Section reads :
"427.(1) 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 Page 11 of 68 R/SCR.A/3006/2018 CAV JUDGMENT subsequent sentence shall run concurrently with such previous sentence.
9. The Section relates to administration of criminal justice and provides procedure for sentencing. The sentencing court is, therefore,required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive ?
10. The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
17. In Safuddin Suleman (supra), a Division Bench of this Court took notice of the above referred decision of the Supreme Court. The petitioner therein, a convict, was undergoing different sentences including the sentence of life imprisonment, forwarded an application to this Court through the Deputy Superintendent, Central Jail with a request to pass appropriate orders directing all the sentences to run concurrently. In the said case, the petitioner was convicted for the offences punishable under section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, section 394 read with section 114 and section 120-B of the Indian Penal Code. Being dissatisfied with the judgment of conviction and sentence, criminal appeal was filed which came to be dismissed by a Division Bench of this Court. The Division Bench of this Court, relying on Ibrahim Ahmed Bhatti (supra), declined to pass an order for the sentences to run Page 12 of 68 R/SCR.A/3006/2018 CAV JUDGMENT concurrently. The Division Bench observed as under;
"7. In view of the aforesaid legal position, if a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences and it would be proper and legitimate to have concurrent sentences. In view of the aforesaid legal position, the aforesaid rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. Meaning thereby if accused is convicted in two different cases for two different offences, then he is not entitled to benefit of Section 427 of Cr.P.C. seeking a relief that sentences be directed to run in two different cases, concurrently.
8. On reading the judgment of the learned special Judge (Atro.) Ahmedabad (Rural), Ahmedabad rendered in Special Case No.77 of 2001, it appears that the offences took place on 18.02.1997 on the outskirts of village Mahijada falling within the jurisdiction of Sarkhej Police Station.
9. While on reading the judgment of the learned special Judge (Atro.) Ahmedabad (Rural), Ahmedabad rendered in Special Case No.78 of 2001, it appears that the offences took place on 11.02.1997 on the outskirts of village Bareja.
10. In both the cases, the nature of offences are quite distinct and different. The victims in both the cases were different. In view of this, when the transaction relating to the offences is not the same and the facts constituting the two offences are quite distinct and different, then we are of the view that the petitioner is not entitled to benefit under Section 427 of Cr.P.C.
10. For the foregoing reasons, this application deserves to be rejected and accordingly it is rejected. Rule is discharged."
18. Let me now look into one of the judgments of this Court rendered in the case of Girish Gautam S/o. Malaram Page 13 of 68 R/SCR.A/3006/2018 CAV JUDGMENT Sharma (Brahman) vs. State of Gujarat dated 04.04.2018 in the Special Criminal Application No.1730 of 2018 and allied matters.
"I would like to first address myself on the question, whether it would be competent for the High Court, in exercise of its powers under Article 226 of the Constitution of India or under Article 227 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, 1973, to direct that the sentence to a subsequent conviction to imprisonment shall run concurrently with the previous sentence, if the convict has accepted the judgment and order of conviction and sentence by not filing any criminal appeal or criminal revision application, as the case may be.
I would also like to address myself on the question as regards the circumstances in which the sentence on a subsequent conviction should be made to run concurrently with the previous sentence.
Sentencing is one of the most important facets of the administration of criminal justice system. Apart from the statutory restrictions, an appropriate sentence is a matter for the discretion of the sentencing judge. The decisions of the Courts on points of substantive law are binding on the Court itself and the Courts subordinate thereto. However, the decisions on sentencing are no more than examples of how the Court has dealt with a particular offender in relation to a particular offence. In the modern times, criminal jurisprudence has developed to some extent except the principles of uniformity of sentence for a particular category of crime. But they are not authoritative in a strict sense. Limitation or curtailment of sentencing may be regulated by legislative provisions and other modes of fettering discretion in awarding of the punishment may also result from the principles stated by judicial pronouncement. In English and American Law, the component of justice model is the constriction of judicial discretion by the promulgation of standards with which the judge must substantially comply. The main three strategies are : (a) the enactment directly by legislature of a detailed set of principles of sentencing, indicating a normal or Page 14 of 68 R/SCR.A/3006/2018 CAV JUDGMENT presumptive sentence for given classes of case, with specified aggravations and mitigations, leaving the sentencing judge very limited discretion; (b) the promulgation of standards, by a Commission composed of judges and other interested persons, which would be more detailed than a direct legislative enactment, less exposed to change but at the same time more flexible and capable of amendment in the light of experience; and (c) the evolution of guidelines based on an empirical study of the current sentencing practice within the jurisdiction concerned. In most of the systems, discretion is vested with the Courts in matters of sentencing and passing other related orders. Continuous efforts are made to avoid disparity of sentencing as individualization of sentencing will naturally undermine the uniformity of sentencing practice and would create disharmony detrimental to public confidence. Under the penal system, discretion is exercised by the Courts awarding sentence. (Ref:
Sentencing and the Penal System Text and Materials by Christopher Harding and Laurence Koffman published by Sweet and Maxwell, (London) 1988).
The English Sentencing System points out that the aim of the penal system is to reduce the crime by making as many people as possible to realise who want to obey criminal law. The two stated objects for general practice of punishment would justify such a policy if there is reduction of crime and promotion of respect for criminal law. Historically the instinctive reaction to criminal act is retaliation by the injured person expressing his resentment or hostility towards the criminal and his conduct. Punishment for such an offence thus became the essence of any organized state to maintain the rule of law. The notion of `Just deserts' or the sentence proportionate to the offender's culpability was the principle which, by passage of time, became applicable to the criminal jurisprudence. For an offender to receive a sentence which adequately reflects the gravity of his offence, the punishment ought not to be so lenient and should not be heavier than that justified by the offence. The sentence must not be too long or excessive. Lord Denning, while giving evidence to the Royal Commission on capital punishment, stated:
"The ultimate justification of any punishment is not that it Page 15 of 68 R/SCR.A/3006/2018 CAV JUDGMENT is deterrent but that its emphatic denunciation by the community of a crime."
The term `Sentencing' is used in its generic sense. A criminal trial may result in either acquittal or conviction. In the event of conviction, punishment, with or without other measures, is the logical end of a criminal trial. It imposes not only a discretion but also a great responsibility on the Courts administering criminal justice system and sentencing forms one of the most important facets. Sentencing is a complex process. A proper sentence is a composite of many factors, including the nature of the offence, the circumstances extenuating or aggravating of the offence, and in such cases whether sentences awarded should run concurrent or consecutive. The determination of the sentence within certain limits is the discretion of the trial Court and it is in many cases one of the most delicate matter with which the Courts have to deal with. An offender's previous conviction and gravity of that offence is of definite significance in subsequent proceedings or orders of sentence or conviction. An assumption is current that exemplary sentence will have a salutary effect on the minds of the potential offenders especially when a particular type of offence is very much prevalent in a community at a given time and punishment being treated as a deterrent. Therefore, while awarding consecutive and/or concurrent sentences the Court decides and records its direction in that regard in specific terms. (Ref: Sentencing By Courts in India by G.N. Sabhahit, First Edition - 1975 published by Dixit Publications, Bangalore.) Sentencing of convicted criminals engages the interest, and sometimes the passion, of the public at large more than anything else judges do. The requirements of deterrence, rehabilitation, denunciation, punishment and restorative justice, all of which are identified as purposes of sentencing, do not point in the same direction and requirements of justice, in the sense of `Just deserts' and of mercy often conflict. The purpose of sentencing principles or guidelines and the appellate process is to ensure that these individual differences are kept within proper bounds. It would undermine public confidence in the administration of criminal justice if it became widely believed that the result was a lottery based on who the judge was. The need for consistency is only one of the Page 16 of 68 R/SCR.A/3006/2018 CAV JUDGMENT numerous constraints on the sentencing task. Centuries of practical experience establishes that the sentencing task is best conducted by the exercise of the broad discretion. The rigid law in some cases may leave no discretion. In all of the recorded history there has never been a time when crime and punishment has not been the subject of debate and difference of opinion. This even may not change in future. It is so because sentencing task is a process of balancing within the limitation of legislative restrictions and proper exercise of judicial discretion. (Ref: A Guide to Sentencing by J.J. Spigelman AC, Chief Justice of New South Wales, Sydney, Australia dated 5th October, 2007 - Supreme Court : Lawlink NSW.) In a Sentencing Information Package prepared jointly by Victims of Crime Bureau and Criminal Law Review Division, NSW, Australia, explaining purposes of sentencing, the basic elements of sentencing procedure and the terminology used by a Sentencing Court, also referred to cumulative and concurrent sentences. If the offences have features in common or if they happened at around the same time and are connected, the Court is more likely to decide the sentences be served concurrently. (Hammond (2002) 118 A Crim. R.66). Where there are different offences at different times against different victims, it will be an error to impose wholly concurrent sentences. (VAA (2006) NSWCCA 44).
Even in the case of People vs Laureano, 8 N.Y. 2D 640 (Mar. 26, 1996), New York Court of Appeals stated the principle that sentences must run concurrently when the act constitutes one offence and is also a material element of another offence. This was with reference to penal law under Section 70.25(2) while dealing with a case of manslaughter in the first degree and robbery in the first degree when the same act caused the victim serious injuries and his death. Referring to these circumstances, the Court took the view that concurrent sentence must be imposed upon the convict.
All these principles which I have referred under the different laws are not founded on any codified statutes as under the Indian criminal jurisprudence.
The extent of judicial discretion thus could emerge from either enacted law or through the guidelines and Page 17 of 68 R/SCR.A/3006/2018 CAV JUDGMENT precepts, which are recognized over a span of time. Both these sources would have a direct impact on the exercise of discretion by the Courts while imposing punishment. It could be at the stage of first conviction or at a subsequent conviction of the same accused. Besides, imposition of punishment in such cases, the Court also have an additional obligation to direct whether the sentences awarded would run concurrently or consecutively. This aspect of criminal jurisprudence has been statutorily recognized in Indian Criminal Law where the legislature has introduced Sections 31 and 427, respectively of the Code of Criminal Procedure, 1973. Section 31(1) of the Code vests a discretion in the Court to direct that the punishment shall run concurrently when a person is convicted at one trial of two or more offences. The Court may sentence the accused for such offences to the several punishments prescribed therefor which such Court is competent to inflict. Such punishments would consist of imprisonment to commence the one after the expiration of the other in such order as the Court may direct subject to the limitation contained in Section 71 of the Indian Penal Code.
In terms of Section 31(2) of the Code wherever the Court awards consecutive sentences, it shall not be necessary for the Court to send the offender for trial before a higher Court on the ground that the aggregate punishment for the several offences is in excess of the punishment which it is competent to inflict on conviction of a single offence. This, however, is further subject to the proviso to Section 31(2) of the Code. This discretion of the Court is, therefore, applicable only in the cases which fall in the category of at one trial of two or more offences. On a bare reading of this Section, it has no application to the cases where a person is tried and convicted under two or more different trials for different offences. This aspect is covered by Section 427 of the Code.
Section 427 of the Code of Criminal Procedure provides as under :
"427. Sentence on offender already sentenced for another offence:-
(1) When a person already undergoing a sentence of Page 18 of 68 R/SCR.A/3006/2018 CAV JUDGMENT 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."
Let me analyse Section 427 of the Code. The application of this provision will be attracted :
(i) When a person already undergoing a sentence of imprisonment is convicted;
(ii) While undergoing such a sentence, such person is subsequently convicted and awarded a sentence of imprisonment including imprisonment for life;
(iii) then such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced; and
(iv) the Court directs that subsequent sentence shall run concurrently with such previous sentence.
These are the principal requirements which ought to be satisfied before the Court in a subsequent trial convicting a person already undergoing a sentence can pass such a direction. Sub-section (2) of Section 427 by a specific legislative mandate directs that a person already undergoing a sentence of imprisonment for life, if subsequently convicted to imprisonment for a term or imprisonment for life again, the same shall 'run concurrently' with such previous sentence. In so far as Page 19 of 68 R/SCR.A/3006/2018 CAV JUDGMENT the provisions of sub-section (2) are concerned, the law operates on the strength of the statutory provisions and is not dependent upon exercise of discretion by the Court which is concerned with the subsequent trial, conviction and sentence of the person already undergoing imprisonment for life. The expression 'shall' will have to be read as 'shall' and cannot be construed or implied as 'may'. It is a legislative mandate which operates on its own force. In contra-distinction to this provision, Section 427(1) of the Code vests discretion in the Court, which has to be exercised judiciously and in conformity with the settled principles, to direct whether the sentence passed on conviction in the subsequent trial will run concurrently or consecutively with the previous sentence awarded to the accused. The Legislature, thus, has made it obligatory upon the Court to exercise such discretion. A bare reading of the Section does not contemplate even an application by convict or an accused in that behalf. The legislative intent requires the Court to act on its own as sentencing is primarily the duty of the Court and it is expected to consider all facets of sentencing policy while passing an order as envisaged under Section 427(1) of the Code. It is only the subsequent conviction and sentence in case of a person already undergoing a sentence of imprisonment in a previous conviction that the provisions of this Section would operate. Expression 'the Court' appearing at the end of Section 427(1) of the Code obviously refers to the Court of competent jurisdiction which deals with the imposition of sentence of imprisonment in a subsequent conviction. It entirely falls within the jurisdiction of that Court as to whether the sentence awarded upon a subsequent conviction would run concurrently or consecutively with the previous sentence of imprisonment awarded to the accused by the earlier Court. While passing such an order the Court would have to consider the facts of each case, nature or character of the offence for which the accused was punished in the earlier case, prior criminal record of the offender, age, sex, impact of such sentencing on social fabric of the society, attendant circumstances and amongst others as to whether the crime committed was heinous, etc. The provisions of section 427 obviously have no application to the cases which fall under Section 31 of the Code as they are controlled by that provision. In a case where a person has committed different offences and is facing one trial for committing two or more Page 20 of 68 R/SCR.A/3006/2018 CAV JUDGMENT offences, even in such cases, the sentences awarded for different offences would commence one after the expiration of the other unless the Court directs that the sentence shall run concurrently. The provisions of Section 427 would come into play obviously where the case of the convict is not covered under Section 31 and he is tried for two different offences in two different cases, one in the earlier trial and then the other in the subsequent one. The language of the Section, therefore, clearly suggests that the person for whose benefit or otherwise the Court dealing with subsequent conviction and sentence will have jurisdiction only where the accused is a person already undergoing a sentence of imprisonment. This means the person should have been tried, convicted and sentenced to undergo imprisonment on any given offence including offence punishable with imprisonment for life. The analysis of the plain reading of the Section leaves no doubt that the discretion is vested in the Court to direct subsequent sentence to run concurrently or consecutively with the previous sentence in two different cases and even obviously for different offences.
Restrictions on the power of Court An ancillary but another important question that arises for consideration of the Court is whether the discretion vested in the Court under Section 427(1) of the Code has been legislatively circumscribed and, if not, can the provision be so construed so as to impose limitations on exercise of power of the Court while awarding sentence. It is a settled canon of statutory interpretation that penal statutes are to be construed strictly while the remedial statutes would receive a liberal construction. By development of law, the distinction between liberal and strict construction has very much narrowed down and is only important in resolving a doubt which other canons of construction fail to solve when two or more constructions are equally open. In case of remedial statutes, the Court ought to give widest operation which the language of the provision permits. In case of pure penal statutes, it is also an equally settled principle that in penal or procedural provisions relating to criminal jurisprudence, liability or punishment would be capable of narrower construction, but the construction which will tilt the interpretation favourable to the accused will be preferred over the Page 21 of 68 R/SCR.A/3006/2018 CAV JUDGMENT interpretation which would adversely affect the right of a person/accused under trial.
The principle of reasonable interpretation is more tilted in favour of the accused and it should preferably be adopted in contrast to narrower or strict construction. It was also said :
"All modern Acts are framed with regard to equitable as well as legal principles and where there is an enactment which may entail penal consequences, you ought not to do violence to the language in order to bring people within it, but ought rather to take care that no one is brought within it who is not brought within it by express language." (See Craies on Statute Law, Seventh Edition).
The rule of literal, liberal or strict construction may be applied while interpreting a statute but in either of them it is hardly permissible to add or read into the provisions. The expression or the words which are non-existent in the statute cannot be read into it when the provisions on its plain reading is clear and unambiguous. Maxwell while interpreting the narrow distinction between the liberal and strict construction stated as under :-
"The tendency of, modern decisions, upon the whole, is to narrow materially the difference, between what is called a strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and criminal statutes with a more rational regard to the aim and intention of the legislature, then formerly. It is unquestionably right that the distinction should not altogether erased from the judicial mind, for it is required by the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty, and this tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be Page 22 of 68 R/SCR.A/3006/2018 CAV JUDGMENT expounded according to its expressed or manifest intention and that all cases within the mischiefs aimed at are, if the language permits, to be held to fall within its remedial influence."
In the case of Bhagirath v. Delhi Administration., AIR 1985 SC 1050, the Supreme Court overruled its earlier decision and held that the beneficent provisions of Section 428 of the Criminal Procedure Code directing set off of the period of pre-conviction detention against term of imprisonment is applicable even to cases where the sentence is imprisonment for life and that such a sentence is also imprisonment for a term within the section. To deny such benefit is to withdraw the application of benevolent provision from a large majority of cases in which such benefits would be needed and justified.
Even in the case of Dilip S Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528, the Supreme Court held as under: "a penal statute, in the event different meanings are possible to be given, must be construed liberally in favour of the accused, while the Court shall give due weightage to the need of the victim. It cannot ignore the right of an accused and in a case of conflict construction which favours the accused shall prevail."
Of course, the intention was not to unnecessarily enlarge the right of the accused.
A great balance is required to be drawn between the rule of strict construction and liberty of a subject including fair trial. The Code of Criminal Procedure is intended to provide for the control of the offences, primarily the offences punishable under the Indian Penal Code. Thus, in a way, it is a procedural remedial code having the colour that of a penal statute. Thus, the basic rules of construction would still remain the same.
Lord Esher, MR, even in relation to penal sections observed that if there is a reasonable interpretation which will avoid the penalty in any particular case we must adopt that construction. If there are two reasonable constructions we must give the more lenient one.
In the case of Tolaram v. State of Bombay, AIR 1954 SC Page 23 of 68 R/SCR.A/3006/2018 CAV JUDGMENT 496, the Supreme Court said :
"If two possible and reasonable constructions can be put upon a penal provision, the court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty. It is not competent to the court to stretch the meaning of an expression used by the Legislature in order to carry out the intention of the Legislature."
The provisions of Section 427 of the Code are titled to provide a benefit in favour of a convict. Whether the sentence awarded earlier or the sentence awarded on subsequent conviction to run consecutive or concurrent is a matter of importance not only from the point of view of the accused but even administration of criminal justice. The Court has been vested with this power and is expected to apply this provision in every case at the time of awarding the sentence. The obligation cast upon the Court is of a mandatory nature as it has the impact of granting or declining to grant a benefit to a convict. Thus, it may not be appropriate to read into the provisions of Section 427 any restriction or limitation on the discretion of the Court which has not been specifically imposed by the Legislature.
As I have already noticed, the Legislature in its wisdom has not imposed any bar or limitation on the basis of which case of any subsequent conviction would fall outside the ambit or scope of Section 427. On the contrary, to apply these provisions to different cases is the very intent behind this provision. Sub- Section (2) of Section 427 requires mandatorily that life imprisonment in two different cases shall run concurrently. To hold that the provisions of Section 427(1) would not apply to any case would be an interpretation which would neither be permissible on any principles or any accepted canons of interpretation of statutes nor with reference to the legislative intent behind this provision.
I am unable to see any statutory restriction on the powers of the Court or legislative mandate to exclude any class of cases from the provisions of Section 427 of the Code once the ingredients of the provision are satisfied. It is not for the Court to read into the provisions Page 24 of 68 R/SCR.A/3006/2018 CAV JUDGMENT what is not stated unless it becomes imperative due to the rule of implied construction. On its plain reading, the language of the provision does not admit any direct or implied restriction. Of course, the Court has to exercise its discretion guided by law and legal principles. It must be governed by rules, not by humour and cannot be arbitrary, vague and fanciful. It essentially has to be legal, regular and according to the rules of reason and justice. (See Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80).
Judicial discretion is vested in the Court under Section 389 of the Code in regard to grant or refusal of bail. Similarly, discretion is also vested in the Court which is exercising powers under Section 427 of the Code. The mere fact that wide discretion is vested in the Court in relation to either of these provisions, per se would not justify imposition of restrictions or limitations which are not specified by the Legislature. As already indicated, the discretion is to be well guided by law and principles enunciated by judgments of the Courts.
Once the parameters contained in Section 427 of the Code are satisfied, the competent Court is then required to exercise its discretion to pass appropriate orders in relation to the sentence awarded in a subsequent conviction should run concurrently or consecutively with the previous imprisonment. This discretion is guided by law and stated precepts as noticed by us above as well as which are stated by development of law, but there is hardly any scope left for exclusion of cases otherwise covered under Section 427 and/or for imposing any restriction or limitation on the power of the Court vested by the Legislature in terms of Section 427 of the Code. Proper exercise of discretion has inbuilt command that it should be exercised appropriately and in consonance with the settled guidelines. The importance and impact of exercise of judicial discretion in relation to matter of sentencing has already been referred by us not only in Indian criminal jurisprudence but even principles prevalent in Laws of United Kingdom and America.
Another aspect which needs to be clarified with reference to the legislative intent apparent from the language of the section is that imprisonment of subsequent conviction shall commence at the expiration of the Page 25 of 68 R/SCR.A/3006/2018 CAV JUDGMENT imprisonment to which the accused has been previously sentenced unless the Court directs such sentence to run concurrently with the previous sentence. This clearly indicates that the normal rule would be that sentence would run consecutively and exception is that they would run concurrently. The pre-requisite of the exception being that Court has to apply its mind and pass a specific order directing that the sentences shall run concurrently with the previous sentence but for such specific exercise of discretion, the rule of sentence running consecutively would cover the case. I have already noticed that this requirement of law has to be satisfied by the Court. The law intends to provide a benefit to the accused of calling upon the Court to exercise discretion where a sentence awarded in a subsequent trial would run consecutively or concurrently with the previous sentence. Wherever the provisions of the Criminal Procedure Code are applicable the Court would be required to apply the provisions of Section 427 of the Code unless their application was specifically barred by the Legislature or by its necessary implication. The language of Section 427 read cumulatively does not command an accused or a convict to make such an application as consideration of this aspect of sentencing requires the Courts to exercise the discretion in terms of Section 427 of the Code. No doubt, it will be always more appropriate that the factum of previous conviction and sentence and the reasons for exercising the judicial discretion under Section 427 is brought before the Court by means of an appropriate application, but this cannot be termed as a requirement absolutely mandatory and without which the Court would not be in a position to pass appropriate orders as regard directing the sentences to run concurrently or consecutively. While passing an order of imprisonment/sentence upon a subsequent conviction, it will always serve the ends of justice better and would be inconformity with public good that such discretion is even exercised by the Court suo motu. The Legislature in its wisdom did not leave any choice or discretion with the Courts in relation to sentences covered under Section 427(2) of the Code and mandated that they would run concurrently. This is to be seen in contra-distinction to the judicial discretion vested by the Legislature in the Court under Section 427(1) of the Code, where all convicts undergoing imprisonment in a previous conviction, except imprisonment for life, can invoke the Page 26 of 68 R/SCR.A/3006/2018 CAV JUDGMENT jurisdiction of the Court in terms of Section 427 of the Code. The expression "unless the Court directs" clearly suggested that the Court would apply its mind and by virtue of some reasoned directions direct that the sentences shall run concurrently with the previous sentence. The Court while dealing with stringent laws and particularly penal statutes is required to ensure that the intention of the Legislature is not frustrated and even if necessary it should take recourse to the rule of purposive construction as more the stringent is the law less is the discretion with the Court. While dealing with such enactments, even on the first principle the course which is favourable to further the legislative cause should be adopted and an interpretation which would reduce the legislation to futility should be avoided. One provision alone need not be construed in isolation and it is always preferred rule of interpretation that a provision should be construed with reference to other relevant provisions as well as the scheme of law underlining the said provisions. (See Prakash Kumar Alias Prakash Bhutto v. State Of Gujarat., (2005) 2 SCC 409).
It is also equally well settled principle of law that the Court cannot enlarge the scope of legislation or intention when the language of the statute is plain and unambiguous as well as that the Court would not read into the provisions what has not been stated in the language of the provision. (A.N Roy, Commissioner of Police v. Suresh Sham Singh, (2006) 5 SCC 745). Section 31 and Section 427 both should be read in conjunction with the other provisions of the Code which vests the Court with judicial discretion in regard to imposition of imprisonment and should be seen in the backdrop of the scheme of the Code and basic rule of criminal jurisprudence with an interpretation which provides an advantage to the under-trial is preferred to the one against him. May be parameters and criteria in awarding sentence under different provisions of the Code would largely be applicable even to exercise of jurisdiction under section 427 of the code. The nature and gravity of the previous offence, the punishment inflicted, the circumstances leading to the occurrence, conduct of the accused could be looked into by the Court through the judgment of the previous conviction while deciding whether the sentence in a subsequent conviction would run consecutively or concurrently. The gravity, nature Page 27 of 68 R/SCR.A/3006/2018 CAV JUDGMENT and circumstances in relation to the crime committed in subsequent conviction could further help the Court to exercise the discretion in consonance with the settled principles. Merely because the conviction is in two different cases and the punishment awarded in previous conviction was for a heinous crime, per se would not exclude the jurisdiction of the Court under Section 427(1) of the Code. It is apparent that the Legislature in its wisdom has chosen not to impose any such restriction on the power of the Court. The provisions relating to vesting of jurisdiction or judicial discretion are not to be construed narrowly when they are capable of admitting no ambiguity. the maxim Est boni judicis ampliare jurisdictionem is indicative of proper amplification of jurisdiction particularly in relation to matters arising out of procedural law.
A Division Bench of the Kerala High Court in the case of Mani v. State of Kerala, 1983 CRI. L.J 1262, while relying upon the judgments of the Supreme Court held as under :-
"10. The real question that arises in the case is when can the ourt give a direction in its discretion that the subsequent sentence should run concurrently with the former sentence. It will not be possible to give very positive directions with regard to that. It should depend on the facts of each case, the nature or character of the offences committed, the prior criminal record of the offender, his age and sex etc. As Justice Krishna Iyer had said in Mohammed Giasuddin v. State of A.P, (1977) 3 SCC 287 at p. 289 : (1977 Cri L.J 1557 at p. 1559) :-
"The drawback of our criminal process is that they are built on the bricks of impressionist opinions and dated values, ignoring emperical studies and deeper researches ... the human art of sentencing remains a retarded child of the Indian Criminal System."
When he was a Judge of the Kerala High Court, he had said in Shivaprasad v. State of Kerala (1969 Ker LT 862) :
"Criminal trial in our country is largely devoted only to finding out whether the man in the dock is guilty. It is a major deficiency in the Indian system of criminal trials that the complex but important sentencing factors are not given sufficient emphasis and materials are not Page 28 of 68 R/SCR.A/3006/2018 CAV JUDGMENT presented before the Court to help it for a correct judgment in the proper personalised, punitive treatment suited to the offender and the crime.""
14. ..... The sentencing stage should not be treated as a mere matter of formality. In the matter of sentencing a person, the courts will have to take note of the fact that human behaviour is the product of antecedent circumstances. The measures employed to treat a convicted offender should serve a therapeutic function. Such measures should be designed to effect changes in the behaviour of the convicted person, the interest of his own happiness, health and satisfaction and the interest of social defenses. A person who is sincerely trying to rehabilitate himself ought not to be demoralised."
The formation of the question in the Order of Reference opens with the words, "whether power under Section 427 of the Code of Criminal Procedure, 1973 can be exercised when the conviction of the accused is in two or more cases for distinct and separate offences arising out of different transactions/ incidents ?".
This itself indicates that there is no ambiguity in the provision as well as in the question that the power is vested in the Court. Initially an attempt was made by the learned Counsel appearing for the parties to argue as to whether power is vested in the Court to pass an order of consecutive and/or concurrent running of sentence, but subsequently the learned Counsel were ad idem that power is vested in the Court but primarily it is the exercise of such power in relation to different convictions, different offences arising out of different transactions that needs to be answered by this Bench.
A Full Bench of the Allahabad High Court in the case of Mulaim Singh v. State, (1974 Cri.L.J 1397) stated two principles of law, one that the Trial or the Appellate Court is competent to exercise the discretion under Section 397(1) equivalent to Section 427(1) of the present code at the stage when the court records the subsequent conviction. The language of the section does not suggest that after passing of the final judgment, the court will be competent to exercise such discretion. Secondly, that the High Court is competent under Section 561- a equivalent to Section 482 of the Code. Now the sentences could run Page 29 of 68 R/SCR.A/3006/2018 CAV JUDGMENT concurrently with the previous sentence but such as the inherent powers could even be exercised to undue or wrong in the courts of administration of justice. It further clarified the principle that where the offences giving rise to separate rights of conviction are distinct and are not immediately connected, the sentences should be made to take normal course and may not be ordered to run concurrently. As far as the first principle is concerned, to the larger extent, it stands approved by the judgment of the Supreme Court in the case of M.R Kudva (supra) where the Supreme Court has held to the extent that the provisions of Section 427 could not be applied in a separate and independent proceedings by the High Court as no order was made within the scope of Section 427 at the time of passing the order of conviction by the trial court or the High Court. In this very case, the Supreme Court also indicated that the judgments of the Supreme Court in the cases of Amavasai (supra) and Mohd. Akhtar Hussein (supra) were not the authorities for the proposition that it is incumbent upon the court to direct in a case of this nature that both the sentences shall run concurrently and not consecutively. The court, of course, did not in any way indicate that the power of the court to pass direction with regard to running of the subsequent sentence consecutively or concurrently with the previous sentence did not exist. As far as the second aspect is concerned, it again lays down some principle which the courts may examine while passing such an order. Thus, jurisdiction of the court to examine this aspect of the sentence is not questionable in law.
It is important for me to refer to the judgment of the Supreme Court in the case of Ranjit Singh v. Union Territory of Chandigarh & Anr., 1991 4 SCC 304, where a person already serving sentence of life imprisonment was again sentenced to life imprisonment on a subsequent conviction. Following the command of Section 427(2) of the Code, the Supreme Court clearly held the subsequent sentence will run concurrently even in absence of any specific direction by the Court to that effect though in a given circumstances the convict may not be entitled to get benefit of remission and commutation in respect of the earlier sentence. Importantly, the Court, though primarily dealing with the question of life imprisonment punishment covered under Section 427(2) of the Code, held as under :
Page 30 of 68 R/SCR.A/3006/2018 CAV JUDGMENT"8. Sub-section (1) of Section 427 CrPC provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or life imprisonment. In other words, subsection (1) of Section 427 CrPC deals with an offender who while undergoing sentence for a fixed term is subsequently convicted to imprisonment for a fixed term or for life. In such a situation, the first sentence, being for a fixed term, expires on a definite date which is known when the subsequent conviction is made. Sub-section (1) says that in such a situation, the date of expiry of the first sentence which the offender is undergoing being known, ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence. Obviously, in cases covered by sub-section (1) where the sentence is for a fixed term, the subsequent sentence can be consecutive unless directed to run concurrently. Sub-section (2), on the other hand, provides for an offender "already undergoing sentence of imprisonment for life" who is sentenced on a subsequent conviction to imprisonment for a term or for life. It is well settled since the decision of this Court in Gopal Vinayak Godse and reiterated in Maru Ram that imprisonment for life is a sentence for the remainder of the life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority. This being so at the stage of sentencing by the court on a subsequent conviction, the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively which is the general rule laid down in subsection (1) of Section 427. As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as a sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious Page 31 of 68 R/SCR.A/3006/2018 CAV JUDGMENT situation which is stated in sub-section (2) of Section 427 since the general rule enunciated in sub-section (1) thereof is that without the court's direction the subsequent sentence will not run concurrently but consecutively. The only situation in which no direction of the court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub- section (2) which has been enacted to avoid any possible controversy based on sub-section (1) if there be no express direction of the court to that effect. Subsection (2) is in the nature of an exception to the general rule enacted in sub-section (1) of Section 427 that a sentence on subsequent conviction commences on expiry of the first sentence unless the court directs it to run concurrently. The meaning and purpose of sub- sections (1) and (2) of Section 427 and the object of enacting sub-section (2) is, therefore, clear."
Thus, there is hardly any judgment brought to the notice of this court which lays universal principle that wherever the accused is convicted for two different transactions under two different enactments at two different points of time, then the court is divested of its power and jurisdiction under the provisions of section 427(1) of the Code. The emphasis in the language under section 427(1) is not on different offences but the application thereof is on the premise of undergoing sentence of imprisonment in a previous conviction and directing sentence of imprisonment on a subsequent conviction to run consecutively unless directed to run concurrently by the court of competent jurisdiction. The exclusion of the provisions of section 427(1) with reference to different transactions, different offences and different cases, is not comprehensible within the language, particularly, in view of the unambiguous and clear terms used by the legislature in section 427(1) of the Code. The section is probably intended to achieve a twin purpose, one which is beneficial to the accused where the court is expected to consider directing the imposition of subsequent sentences to run consecutively or concurrently with the previous sentence and secondly, a general and administrative concept that of overcrowded jails where under-trials and convicts are lodged so as to even require the State to act in the interest of administration of criminal justice system and not to frustrate the purpose of sentencing by ill-treating the convict. These Page 32 of 68 R/SCR.A/3006/2018 CAV JUDGMENT alongwith the above-referred criteria are relevant consideration for exercise of jurisdiction but certainly are not determinative as they would have to be seen in the facts and circumstances of a given case. The court which exercises such jurisdiction has to be the court of competent jurisdiction and the matter essentially should fall within its jurisdiction. Exercise of judicial discretion presupposes legal and inherent jurisdiction to entertain such matters.
While sub-section (2) of Section 427 Cr.P.C. provides that when a person already undergoing 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, sub-section (1) of Section 427, however, provides that the subsequent sentence of a person undergoing a sentence of imprisonment, unless of course the previous sentence of imprisonment is not the imprisonment for life, shall run consecutively, i.e. the subsequent sentence shall commence at the expiration of the imprisonment to which such person has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with the previous sentence. Hence if a person is already undergoing a sentence of imprisonment for life, his subsequent conviction to imprisonment, which may be for any term or for imprisonment for life, shall have to run concurrently with the previous sentence for which the Court's order is not necessary. On the reverse situation i.e. if a person is undergoing a sentence of imprisonment, but not the imprisonment for life, and he has been subsequently convicted to imprisonment for any term or imprisonment for life, to run the subsequent sentence concurrently with the previous sentence, there must be an order of the Court to that effect.
The provisions of Sections 427 and 428 of the Cr.P.C. Came up for consideration before the Supreme Court in the case of State of Maharashtra and another v. Najakat Alia Mubarak Ali, IV (2001)6 SCC 311. The view of the Supreme Court on Sections 427 and 428 of the Code reads thus :
"The placement of that section just below Section 427 of Page 33 of 68 R/SCR.A/3006/2018 CAV JUDGMENT the Code tempts us to have a peep into the preceding section, which deals with instances wherein one person is sentenced in a case when he has already been undergoing the sentence in another case. The first sub- section of Section 427says that the sentence in the second conviction shall commence at the expiration of the imprisonment to which the accused has been previously sentenced, "unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence." The second sub-section to Section 427 of the Code says that 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.
Thus the sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter it would flow through one stream alone. Even if the sentence in one of those two cases is not imprisonment for life but only a lesser term the convergence will take place and the post-convergence flow would be through the same channel. In all other cases, it is left to the Court to decide whether the sentences in two different convictions should merge into one period or not. If no order is passed by the Court the two sentences would run one after the other.
No doubt, Section 427 is intended to provide amelioration to the prisoner. When such amelioration is a statutory operation in cases falling under the second sub-section it is a matter of choice for the Court when the cases fall within the first subsection. Nonetheless, the entire section is aimed at providing amelioration to a prisoner. Thus a penumbra of the succeeding section can be glimpsed through the former provision."
Referring to the report of a committee for introducing Section 428, Cr.P.C. Their Lordships have further laid down two requisites before the benefit of Section 428, Cr.P.C. could be given, namely, (1) during the stage of investigation, enquiry or trial of a particular case the prisoner should have been in jail at least for a certain period; and (2) he should have been sentenced to a term of imprisonment in that case. It is further clear that the Page 34 of 68 R/SCR.A/3006/2018 CAV JUDGMENT sentences are to dove tail in cases where a person is already convicted and while serving sentence he is further convicted. In such cases from the date of order of subsequent conviction, the convict is to undergo the balance sentence, not the whole sentence, However, if he is required in any other case, then it is entirely a different matter. A reading of paragraphs 16, 17 and 18 of the judgment of Najakat Alia Mubarak Ali's case (supra) makes the aforementioned position further clear which read as under:
"If the above two conditions are satisfied then the operative part of the provision comes into play i.e. if the sentence of imprisonment awarded is longer than the period of detention undergone by him during the stages of investigation, enquiry or trial, the convicted person need undergo only the balance period of imprisonment after deducting the earlier period from the total period of imprisonment awarded. The words "if any" in the section amplify that if there is no balance period left after such deduction the convict will be entitled to be set free from jail, unless he is required in any other case. In other words, if the convict was in prison, for whatever reason, during the stages of investigation, inquiry or trial of a particular case and was later convicted and sentenced to any term of imprisonment in that case the earlier period of detention undergone by him should be counted as part of the sentence imposed on him."
In the above context, it is apposite to point out that very often it happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of the imprisonment under each such count, all such sentences arc directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well.
Reading Section 428 of the Code in the above perspective, the words "of the same case" are not to be understood as suggesting that the set-off is allowable only if the earlier jail life was undergone by him exclusively for the case in which the sentence is imposed. The period during which the accused was in prison subsequent to the inception of a particular case, should be credited towards the period of imprisonment Page 35 of 68 R/SCR.A/3006/2018 CAV JUDGMENT awarded as sentence in that particular case. It is immaterial that the prisoner was undergoing sentence of imprisonment in another case also during the said period. The words "of the same case" were used to refer the pre-sentence period of detention undergone by him. Nothing more can be made out of the collocation of those words.
The Legislative intent obviously appears to be that when a person already undergoing a sentence of imprisonment is subsequently convicted and sentenced for another offence, the sentence awarded under the subsequent conviction shall not commence till after the expiry of the sentence which he is already undergoing. The general rule is that a sentence commences to run from the time it is imposed, but Section 427 of the Code engrafts an exception to this general rule in the case of a person who is already undergoing a sentence of imprisonment. However, a discretion is given to a court to direct that the subsequent sentence shall run concurrently with the previous sentence. Obviously, the stage for exercising the discretion is when the court records the conviction and inflicts punishments on the accused. The discretion under Section 427 of the Code can also be exercised at the stage when the court records the subsequent conviction. The language employed in Section 427 of the Code does not indicate that the discretion to direct that the sentence under the subsequent conviction shall run concurrently with the previous sentence can be exercised at any subsequent stage.
The discretion to make the sentence of subsequent conviction run concurrently with the previous sentence must be based on some sound principle and is not meant to be exercised in an arbitrary manner. It would be a proper exercise of discretion to make the sentence of a subsequent conviction to run concurrently with the previous sentence where separate trials are held for the offences which, while constituting distinct offences, are inherently or intimately connected with each other.
It would be an exercise in futility to lay down exhaustively the situations and circumstances in which the exercise of inherent power or writ-jurisdiction would be justified. However, it must be borne in mind that the general scheme of the Code is that the sentence Page 36 of 68 R/SCR.A/3006/2018 CAV JUDGMENT awarded at a subsequent trial shall commence at the expiration of the imprisonment to which the accused has been previously sentenced. The discretion conferred on the court under Section 427 of the Code has to be exercised on some judicial principal. If a situation arises like the one on hand, for invoking the inherent powers of the court under Section 482 of the Code or writ- jurisdiction under Article 226 of the Constitution of India, the court has to see, whether the circumstances and the object for which the inherent power is to be exercised are in existence and can be achieved. It is equally well- established that the inherent power is to be exercised to do the right and to undo the wrong in the course of the administration of justice and this power ought to be exercised sparingly only when the court feels that the ends of justice requiring it and not as a matter of course or routine.
In the aforesaid context, let me look into the decision of the Supreme Court in the case of V.K.Bansal v. State of Haryana, (2013)7 SCC 211. The question that fell for the determination of the Supreme Court in the said case was, whether the High Court was right in declining the prayer made by the appellant for a direction in terms of Section 427 read with Section 482 of the Code for the sentences awarded to the appellant in connection with the cases under Section 138 of the Negotiable Instruments Act, filed against him, to run concurrently. I may quote the relevant observations of the Supreme Court thus :
"8. Section 427 of the Code of Criminal Procedure deals with situations where an offender who is already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life. It provides that 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. Section 427 may at this stage be extracted:
"427. Sentence on offender already sentenced for another offence -
(1) when an person already undergoing sentence of imprisonment is sentenced on a subsequent conviction to Page 37 of 68 R/SCR.A/3006/2018 CAV JUDGMENT 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."
9. That upon a subsequent conviction the imprisonment or imprisonment for life shall commence at the expiration of the imprisonment which has been previously awarded is manifest from a plain reading of the above. The only contingency in which this position will not hold good is where the Court directs otherwise. Proviso to sub-section (1) to Section 427 is not for the present relevant as the same deals with cases where the person concerned is sentenced to imprisonment by an order under Section 122 in default of furnishing security which is not the position in the case at hand. Similarly sub-section (2) to Section 427 deals with situations where 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. Sub-section (2) provides that the subsequent sentence shall in such a case run concurrently with such previous sentence.
10. We are in the case at hand concerned more with the nature of power available to the Court under Section 427(1) of the Code, which in our opinion stipulates a general rule to be followed except in three situations, one falling under the proviso to sub-section (1) to Section 427, the second falling under sub-section (2) thereof and the third where the Court directs that the sentences shall run concurrently. It is manifest from Section 427(1) that the Court has the power and the discretion to issue a Page 38 of 68 R/SCR.A/3006/2018 CAV JUDGMENT direction but in the very nature of the power so conferred upon the Court the discretionary power shall have to be exercised along judicial lines and not in a mechanical, wooden or pedantic manner. It is difficult to lay down any strait jacket 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(1). 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. High Courts in this country have, therefore, invoked and exercised their discretion to issue directions for concurrent running of sentence as much as they have declined such benefit to the prisoners. For instance a direction for concurrent running of the sentence has been declined by the Gujarat High Court in Sumlo @ Sumla Himla Bhuriya and Ors. v. State of Gujarat and Ors. 2007 Crl.L.J. 612 that related to commission of offences at three different places resulting in three different prosecutions before three different Courts. The High Court observed:
"The rule of 'single transaction' even if stretched to any extent will not bring the cases aforesaid under the umbrella of 'single transaction' rule and therefore, this application fails. The application is rejected."
11. Similarly a direction for concurrent running of sentence has been declined by the same High Court in State of Gujarat v. Zaverbhai Kababhai 1996 Crl.L.J. 1296 which related to an offence of rape committed at different places resulting in conviction in each one of those offences in different prosecutions. The High Court observed:
"....It is true that it is left to the discretion of the Court while ordering the sentence to run either consecutively or concurrently. However, such discretion has to be exercised judicially, having regard to the facts and circumstances of the case. As observed by the Supreme Court, the rule with regard to sentencing concurrently will have no application, if the transaction relating to offence is not Page 39 of 68 R/SCR.A/3006/2018 CAV JUDGMENT the same and the facts constituting the two offences are quite different. The respondentaccused is found to be guilty for the offence punishable under Section 376 of the Indian Penal Code in two different and distinct occurrences on two different dates, and the transactions relating to the commission of the offences have no nexus with each other...
12. There are also cases where the High Courts have depending upon whether facts forming the basis of prosecution arise out of a single transaction or transactions that are akin to each other directed that the sentences awarded should run concurrently. As for instance the High Court of Allahabad has in Mulaim Singh v. State 1974 Crl. L.J. 1397 directed the sentence to run concurrently since the nature of the offence and the transactions thereto were akin to each other. Suffice it to say that the discretion vested in the Court for a direction in terms of Section 427 can and ought to be exercised having regard to the nature of the offence committed and the facts situation, in which the question arises.
13. We may at this stage refer to the decision of this Court in Mohd. Akhtar Hussain v. Assistant Collector of Customs (1988) 4 SCC 183 in which this Court recognised the basic rule of convictions arising out of a single transaction justifying concurrent running of the sentences. The following passage is in this regard apposite:
"The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
14. In. Madan Lal's case (supra) this Court relied upon the decision in Akhtar Hussain's case (supra) and affirmed the direction of the High Court for the sentences to run concurrently. That too was a case under Section 138 of the Negotiable Instruments Act. The State was aggrieved of the direction that the sentences shall run concurrently Page 40 of 68 R/SCR.A/3006/2018 CAV JUDGMENT and had appealed to this Court against the same. This Court, however, declined interference with the order passed by the High Court and upheld the direction issued by the High Court.
15. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor.
16. Applying the above test to the 15 cases at hand we find that the cases against the appellant fall in three distinct categories. The transactions forming the basis of the prosecution relate to three different corporate entities who had either entered into loan transactions with the State Financial Corporation or taken some other financial benefit like purchase of a cheque from the appellant that was on presentation dishonoured. The 15 cases that have culminated in the conviction of the appellant and the award of sentences of imprisonment and fine imposed upon him may be categorised as under:
1) Cases in which complainant-Haryana State Financial Corporation advanced a loan/banking facility to M/s Arawali Tubes Ltd. acting through the appellant as its Director viz. No.269-II/97; No.549-II/97; No.393- II/97;
No.371-II/97; No.372-II/97; No.373-II/97; No.877-II/96; No.880-II/96; No.878-II/96; No.876- II/96; No.879-II/96; No.485-II/96
2) Cases in which complainant-Haryana State Financial Corporation advanced a loan/banking facility to the appellant to M/s Arawali Alloys Ltd. Acting through the appellant as its Director viz. No.156- II/1997 and No.396- II/1998
3) Criminal complaint No. 331-II/97 in which complainant- State Bank of Patiala purchased/discounted the cheque offered by Sabhyata Plastics acting through the appellant as its Director.
17. Applying the principle of single transaction referred to Page 41 of 68 R/SCR.A/3006/2018 CAV JUDGMENT above to the above fact situations we are of the view that each one of the loan transactions/financial arrangements was a separate and distinct transaction between the complainant on the one hand and the borrowing company/appellant on the other. If different cheques which are subsequently dishonoured on presentation, are issued by the borrowing company acting through the appellant, the same could be said to be arising out of a single loan transaction so as to justify a direction for concurrent running of the sentences awarded in relation to dishonour of cheques relevant to each such transaction. That being so, the substantive sentence awarded to the appellant in each case relevant to the transactions with each company referred to above ought to run concurrently. We, however, see no reason to extend that concession to transactions in which the borrowing company is different no matter the appellant before us is the promoter/Director of the said other companies also. Similarly we see no reason to direct running of the sentence concurrently in the case filed by the State Bank of Patiala against M/s Sabhyata Plastics and M/s Rahul Plastics which transaction is also independent of any loan or financial assistance between the State Financial Corporation and the borrowing companies. We make it clear that the direction regarding concurrent running of sentence shall be limited to the substantive sentence only. The sentence which the appellant has been directed to undergo in default of payment of fine/compensation shall not be affected by this direction. We do so because the provisions of Section 427 of the Cr.P.C. do not, in our opinion, permit a direction for the concurrent running of the substantive sentences with sentences awarded in default of payment of fine/compensation.
18. In the result, these appeals succeed but only in part and to the following extent:
1) Substantive sentences awarded to the appellant by the Courts of Judicial Magistrate, First Class, Hissar and Additional Chief Judicial Magistrate, Hissar, in Criminal complaint cases No.269-II/97; No.549-II/97; No.393- II/97;
No.371-II/97; No.372-II/97; No.373- II/97; No.877-II/96; No.880- II/96; No.878-II/96; No.876-II/96; No.879-II/96; No.485-II/96 relevant to the loan transaction between Haryana Financial Corporation and Arawali Tubes shall Page 42 of 68 R/SCR.A/3006/2018 CAV JUDGMENT run concurrently.
2) Substantive sentences awarded to the appellant by the Court of Judicial Magistrate, First Class, Hissar in Criminal complaint cases No.156- II/1997 and No.396- II/1998 between Haryana Financial Corporation and Arawali Alloys relevant to the transactions shall also run concurrently; 3) Substantive sentences inter se by the Court of Judicial Magistrate, First Class, Hissar in the above two categories and that awarded in complaint case No.331-II/97 shall run consecutively in terms of Section 427 of the Code of Criminal Procedure.
4) No costs." V.K.Bansal (supra) later came to be referred to and relied upon by the Supreme Court in the case of Anil Kumar v. State of Punjab, (2017)5 SCC 53. I may quote the relevant observations thus :
"5. In terms of sub-section (1) of Section 427, 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. Only in appropriate cases, considering the facts of the case, the court can make the sentence run concurrently with an earlier sentence imposed. The investiture of such discretion, presupposes that such discretion be exercised by the Court on sound judicial principles and not in a mechanical manner. Whether or not the discretion is to be exercised in directing sentences to run concurrently would depend upon the nature of the offence/offences and the facts and circumstances of each case.
7. After referring to V.K. Bansal's case, in Benson v. State of Kerala (2016) 10 SCC 307: 2016 (9) SCALE 670, this Court directed the substantive sentences imposed on the appellant Benson to run concurrently. The appellant therein was convicted for the offences punishable under Section 379 and Section 414 read with Section 34 IPC in at least eleven cases. By a separate judgment, the appellant was convicted and sentenced in each of the aforesaid cases and total length of sentences in aggregate was around nineteen years.
8. In the present case, the appellant was earlier Page 43 of 68 R/SCR.A/3006/2018 CAV JUDGMENT convicted under Section 22 NDPS Act and subsequently convicted under Section 27(b)(ii) and Section 28 of the Drugs and Cosmetics Act, 1940. Considering the nature of the offences for which the appellant was convicted and the facts and circumstances of the case, we deem it appropriate to direct that the sentences imposed on the appellant in FIR No.37 and Complaint No.638 shall run concurrently. However, the fine amount and the default sentence or sentences are maintained. If the fine amount is not paid, the default sentence will run consecutively and not concurrently."
In Shyam Pal v. Dayawati Besoya and another, (2016)10 SCC 761, the Supreme Court, in paragraphs 12, 13, 14 and 15 observed as under :
"(12). The law on the orientation of two sentences awarded to an offender following his conviction successively, to define the cumulative duration thereof is envisaged in Section 427 of the Code of Criminal Procedure, 1973 (for short Code) in following terms:
"427. Sentence on offender already sentenced for another offence. - (1) 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.
(13) Though this provision has fallen for scrutiny of this Page 44 of 68 R/SCR.A/3006/2018 CAV JUDGMENT Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal vs. State of Haryana and Another (2013) 7 SCC 211 where it was held that though it is manifest from Section 427(1), that the Court has the power and discretion to issue a direction that a subsequent sentence shall run concurrently with the previous sentences, the very nature of the power so conferred, predicates that the discretion, would have to be exercised along judicial lines or not in a mechanical or pedantic manner. It was underlined that there is no cut and dried formula for the Court to follow, in the exercise of such power and that the justifiability or otherwise of the same, would depend on the nature of the offence or offences committed and the attendant facts and circumstances. It was however postulated, that the legal position favours the exercise of the discretion to the benefit of the prisoners in cases where the prosecution is based on a single transaction, no matter even if different complaints in relation thereto might have been filed. The caveat as well was that such a concession cannot be extended to transactions which are distinctly different, separate and independent of each other and amongst others where the parties are not the (14) The imperative essentiality of a single transaction as the decisive factor to enable the Court to direct the subsequent sentence to run concurrently with the previous one was thus underscored. It was expounded as well that the direction for concurrent running of sentence would be limited to the substantive sentence alone.
(15) In a more recent decision of this Court in Benson vs. State of Kerala, Criminal Appeal No.958 of 2016 (since disposed of on 03.10.2016) and the accompanying appeals, arising from the conviction of the appellant from his prosecution on the offences proved, this Court in the singular facts as involved and having regard to the duration of his incarceration and the remission earned by him, extended the benefit of such discretion and directed that the sentences awarded to him in those cases would run concurrently. It was noticeably recorded that the offences in the cases under scrutiny had been committed on the same day. The benefit of the discretion was accorded to the appellant therein referring as well to the observation in V.K. Bansal (supra) that it is difficult to lay Page 45 of 68 R/SCR.A/3006/2018 CAV JUDGMENT down any straight jacket approach in the matter and that a direction that the subsequent sentence would run concurrently or not, would essentially depend on the nature of the offence or offences and the overall fact situation. Understandably, the appellant was required to serve the default sentence as awarded with the direction that if the fine imposed had not been deposited, the default sentence or sentences would run consecutively."
19 The general principle is that the sentence should take effect immediately on conviction and the same cannot be postponed. Section 427 Cr.P.C. appears to be carving out an exception to the general principle governing execution of sentences when awarded by a Court of law. Sub-section (1) of Section 427, reproduced above, provides that a person who is already undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to imprisonment or imprisonment for life, then such imprisonment or imprisonment for life is to commence at the expiration of the imprisonment, to which he is previously sentenced. This principle, however, is subject to the exceptions carved out in the Section itself and it is to the effect that "unless the Court directs that subsequent sentence shall run concurrently with such previous sentence" (emphasis supplied). The scheme of the Section, thus, is that a person already undergoing a sentence if sentenced to differ subsequent imprisonment, then that subsequent imprisonment is to commence only on the expiry of the previous sentence, unless both the sentences are ordered to run concurrently. Section 31 of the Code of Criminal Procedure also enacts the rule that sentences are to run consecutively unless the Court directs that these should run concurrently. This Section, however, relates to those cases where a person is convicted at one trial of several offences and different/several sentences are awarded to him. Section 427 Page 46 of 68 R/SCR.A/3006/2018 CAV JUDGMENT Cr.P.C. on the other hand, enacts a rule where a person already undergoing the sentence is sentenced to imprisonment in a different trial.
20. Though Section 31, would also talk of a general principle of sentences to commence after expiration of the other but still, the Court awarding the same, has the discretion to direct that such punishments shall run concurrently. Sub-sections (2) and (3) of Section 31 may seem to be laying down some guidelines in regard to the principle that may govern the consideration for directing the sentences to run concurrently or consecutively. Otherwise, Sections 31 and 427 Cr.P.C. have made enabling provisions empowering the Courts to direct the manner of execution of the sentences but principles, method and manner of exercise of this judicial discretion cannot be discerned from the Sections as such. Since the powers have been left to the Court to direct the punishment to run concurrently under Section 31, there may not be much difficulty in such cases where the same Court is required to award several punishments at one trial of two or more offences. Obviously, the Court while making different sentences for more than one offences tried by it, can issue appropriate direction to make the sentences run concurrently and in the absence of such direction, the sentences of course would run consecutively as is clear from the wording of Section. There may not be much difficulty encountered in those cases where the trial of more than one case is held by the same Court and different imprisonments are awarded. A difficulty, however, may arise when person is sentenced to undergo an imprisonment and is subsequently convicted and is imprisoned either to a term or Page 47 of 68 R/SCR.A/3006/2018 CAV JUDGMENT imprisonment for life. The Court may still have the power to make the subsequent sentences to run concurrently with the previous sentence but no indication in regard to principle governing the same or in regard to manner and method is available from the Section. As per sub-section (2) of Section 427 Cr.P.C., the person undergoing sentence of imprisonment for life when is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for a life, the subsequent sentence shall run concurrently with such previous sentence. If such is the situation, then this would operate as law without any further direction being made by the Court in regard to its manner of execution. This aspect was considered by the Supreme Court in case of State of Maharashtra v. Najakat Alia Mubarak Ali, 2001(2) RCR(Criminal) 778 : AIR 2001 SC 2255. In this case, the Supreme Court was basically concerned with the interpretation of Section 428 Cr.P.C. regarding the principle of set off in case where person is convicted of two different offences by two different Courts and when he has remained in pre-trial custody in both the cases. The Supreme Court co-related the provisions of Sections 428 and 427 Cr.P.C. by observing that Section 428 is placed below Section 427 which tempted the Hon'ble Court to peep into this Section i.e. 427 as well. Noticing the provisions of sub-section (2) of Section 427 Cr.P.C., the Supreme Court observed that the subsequent sentence is to run concurrently with the previous sentence in an eventuality visualised under this sub- section. In this background, it is held in the case of Najakat Alia Mubarak Ali (supra) that :-
"Thus, the sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter it would flow through one alone.Page 48 of 68 R/SCR.A/3006/2018 CAV JUDGMENT
Even if the sentence in one of those two cases is not imprisonment life but only a lesser term the convergence will take place and the post-convergence flow would be through the same channel. In all other cases, it is left to the Court to decide whether the sentence in two different convictions should merge into one period or not. If no order is passed by the Court the two sentences would run one after the other. No doubt Section 427 is intended to provide amelioration to the prisoner. When such amelioration is a statutory operation in cases falling under the second Sub-section, it is a matter of choice for the court when the cases fall within the first sub- section. Nonetheless, the entire section is aimed at providing amelioration to a prisoner. Thus a penumbra of the succeeding section can be glimpsed through the former provision."
21. The decision, thus, seems to be clear so far as sub-section (2) of the Section is concerned. From the observations as reproduced above, it would also appear that in other cases, it is left to the Court to decide whether sentence in two different conviction should merge into one or not. Of course, if there is no order passed in this regard, the two sentences as per sub- section (1) have to run one after the other. It may also need a notice that this Section, as observed by the Supreme Court, is meant to provide amelioration to the prisoners. That being the purpose of the Section, the aim of the Court generally should be to so act unless of course the case is such where the Court, in its discretion, does not consider the case fit to show the consideration of amelioration.
22. In Ibrahim Ahmed Bhatti (supra), the Supreme Court held that where the second offence is distinct and different from the first one, the subsequent should normally run consecutively to the first one. Let me at the cost of repetition, once again, extract para-10 of the said decision;
Page 49 of 68 R/SCR.A/3006/2018 CAV JUDGMENT"10. The basic rule of thumb over the years has been the so called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
23. The ratio that may emerge from the above observations is that the basic thumb rule is that concurrent sentences are to be awarded in case of single transaction. Generally, this thumb rule may not apply if the transaction relating to the offences is not the same or the facts constituting the two offences are different. The Supreme Court in this case apparently has not laid down any binding principle in this regard but has made a reference to a thumb rule, which may act as a guide. Obviously, the Supreme Court was conscious of the fact that discretion in this regard has been left to the Court in terms of sub-section (1) of Section 427 Cr.P.C. This Section relates to administration of justice and provides a procedure for sentencing. Accordingly, it is the sentencing Court, which is required to apply its mind and consider what would be an appropriate sentence in a given case or in other words, if the sentences should be concurrent or consecutive..
24. In Ibrahim Ahmed Bhatti (supra), the Supreme Court had in its mind the un-reasonability of the sentence to be imposed upon the accused and it was of the view that the court should keep in mind the totality of the circumstances at the time of passing the order if the sentence should be consecutive or concurrent. In para 17 of the judgment, the Apex Court observed as under;
Page 50 of 68 R/SCR.A/3006/2018 CAV JUDGMENT"17. It is no doubt true that the enormity of the crime committed by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The Court has to consider the totality of the sentences which the accused has to undergo if the sentences are to be consecutive. The totality principle has been accepted as correct principle for guidance. In R. v. Edward Charles French, [1982] Cr. App. R. (S) p. 1 (at 6), Lord Lane, C.J., observed :
"We would emphasize that in the end, whether the sentences are made consecutive or concurrent the sentencing judge should try to ensure that the totality of the sentences is correct in the light of all the circumstances of the case."
25. The Apex Court further remarked that "no single consideration can definitely determine the proper sentence. In arriving at an appropriate sentence, the court must consider, and some times reject, many factors. The Court must recognize, learn to control and exclude many diverse data. It is a balancing act and tortuous process to ensure reasoned sentence. In consecutive sentences, in particular, the Court cannot afford to be blind in imprisonment which the accused is already undergoing.
26. Thus, on appreciation of the Supreme Court judgment, it could be safely viewed that Their Lordships laid much stress in keeping in view the totality of the circumstances while passing the order of sentence and they emphasized the principle of "reasonableness and balance" while looking to the "enormity of the crime" and "total sentence for the offence."
Page 51 of 68 R/SCR.A/3006/2018 CAV JUDGMENT27. The Supreme Court has again gone into this aspect in the case of Ranjit Singh v. Union Territory of Chandigarh and another, reported in (1991)4 Supreme Court Cases 304. In this case Ranjit Singh was convicted for an offence under Section 302 IPC on 6.3.1979 and sentenced to life imprisonment, which had been affirmed by the High Court. He committed another murder while on parole and was convicted under Section 303 IPC, which was, however, altered to one under Section 302 IPC. Ranjit Singh, however, was sentenced to life imprisonment in the second case which was ordered not to run concurrently with the earlier sentence of life imprisonment. Ranjit Singh impugned this order by filing a writ petition under Article 32 of the Constitution of India for issuance of a suitable direction to correct the above mode of execution mainly praying that it be brought in consonance with Section 427(2) Cr.P.C. The Supreme Court in this case, after making detailed reference to sub-sections (1) and (2) of Section 427 Cr.P.C. held as under :-
"8. Sub-section (1) of Section 427 Cr.P.C. provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or life imprisonment. In other words, sub-section (1) of Section 427 Cr.P.C. deals with an offender who while undergoing sentence for a fixed term is subsequently convicted to imprisonment for a fixed term or for life. In such a situation, the first sentence, being for the fixed term, expires on a definite date which is known when the subsequent conviction is made. Sub- section (1) says that in such a situation, the date of expiry of the first sentence which the offender is undergoing being known, ordinarily to subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence. Obviously, in cases covered by sub- section (1) where the sentence is for a fixed term, the Page 52 of 68 R/SCR.A/3006/2018 CAV JUDGMENT subsequent sentence can be consecutive unless directed to run concurrently. Sub-section (2), on the other hand, provides for an offender "already undergoing sentence of imprisonment for life" who is sentenced on a subsequent conviction to imprisonment for a term or for life. It is well settled since the decision of this Court in Gopal Vinayak Godse and reiterated in Maru Ram that imprisonment for life is a sentence for the remainder of the life of the offender unless the remaining sentence is computed or remitted by the appropriate authority. This being so at the stage of sentencing by the court on a subsequent conviction, the earlier sentence of imprisonment for life must be understood in this manner and therefore, there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively which is the general rule laid down in sub-section (1) of Section 427. As rightly contended by Shri Garg, and not disputed by Shri Lalit, the earlier sentence of imprisonment for life being understood to mean as a sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious situation which is stated in subsection (2) of Section 427 since the general rule enunciated in sub-section (1) thereof is that without the court direction the subsequent sentence will not run concurrently but, consecutively. The only situation in which no direction of the court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub- section (2) which has been enacted to avoid any possible controversy based on subsection (1) if there be no express direction of the Court to this effect. Sub-section (2) is in the nature of an exception to the general rule enacted in sub-section (1) of Section 427 that a sentence on subsequent conviction commences on expiry of the first sentence unless the court directs it to run concurrently. The meaning and purpose of sub-sections (1) and (2) of Section 427 and the object of enacting sub-
section (2) is, therefore, clear."
This case basically related to the interpretation of sub-
Page 53 of 68 R/SCR.A/3006/2018 CAV JUDGMENTsection (2) of Section 427 Cr.P.C. and it was held, as noticed above, that imprisonment for a term or an imprisonment for a life can only be superimposed to the earlier life sentence and certainly not added to it, since extending the life span of the offender or for that matter anyone is beyond human might. Referring about sub- section (1) of the Section, it is stated that the same deals with an offender, who while undergoing sentence for a fixed term is subsequently convicted to an imprisonment for a fixed term or for a life. It is further held that in such a situation, the first sentence, being for a fixed term, expires on a definite date which is known when the subsequent conviction is made. In this background, it is further observed that ordinarily the subsequent sentence would commence at the expiration of the first term of imprisonment unless the court directs the subsequent sentence to run concurrently with the previous sentence. Here again the Supreme Court would not provide any guidelines or directions governing the mode, method or principle where direction for consecutive or concurrent execution of sentences are to be made. In fact, in K. Prabhakaran v. P. Jayarajan, 2005(1) RCR(Civil) 667 :
(2005)1 SCC 754, the Hon'ble Supreme Court has clearly observed that there are no guidelines or specific provision to suggest under what circumstances various sentences of imprisonment shall be directed to run concurrently or consecutively the Code of Criminal Procedure and further that there are no judicial decisions laying down guidelines as to what should be the criteria in this regard. These observations, however, were made in a slightly different context as the Hon'ble Supreme Court in this case was mainly concerned to see the aspect of dis-qualification of a person in terms of Section 8(3) of the Representation of People Act upon his conviction for an offence and the sentence so awarded."
28. A full bench of the Bombay High Court in the case of Satnam Singh Puraksing Gill vs. State of Maharashtra, reported in 2009 Cr.L.J 3781 had the occasion to consider the law on the subject very exhaustively. The Full Bench also considered Ibrahim Ahmed Bhatti's case (supra) and observed as under;
Page 54 of 68 R/SCR.A/3006/2018 CAV JUDGMENT" 53. Even in the case of Mohammed Akhtar Hussein , the Supreme Court specifically noticed that the case under the Customs Act to some extent overlapped the case under Gold Control Act but it was evidently on different transactions and the complaints were based on different facts. One was a case of unauthorized smuggling of gold and export of silver under the Customs Act while the other related to possession of 7000 Tolas of primary gold prohibited under section 8 of the Gold Control Act. Thus, the accused was convicted for different offences committed at different points of time and under different statutes. Then the Supreme Court proceeded to grant benefit of section 427(1) of the Code to the accused on these facts and held that the court was not justified in directing that the sentences would run consecutively and not concurrently.
54. In various judgments of the Supreme Court and this Court, including a Division Bench judgment in the case of Sadashiv Chhokha Sable , the courts have clearly stated the principle of law that the Court is vested with the power under Section 427(1) of the Code to pass an order of sentence upon a subsequent conviction, for the sentences to run concurrently or consecutively or concurrently instead of consecutively. Of course, these judgments also state the canons of law in consonance with which jurisdiction is to be exercised, while keeping in mind the rule that subsequent sentence of imprisonment should run consecutively to the previous sentence of imprisonment unless directed specifically to run concurrently by the Court. The provisions of Section 427 of the Code is beneficial to the accused and it also places an obligation upon the Court to consider such a plea. If the legislature intended to deprive of benefit of Section 427(1) of the Code to any classes of convicts undergoing previous sentence from the operation of Section 427(1) of the Code, the legislature would have specifically spelt out the same in the provision itself. An approach which would render under Section 427(1) of the Code or any part thereof as repugnant or ineffective would hardly be permissible. Furthermore, this power is to be exercised by the Court while ensuring that indulgence shown by the Court, with reference to the Page 55 of 68 R/SCR.A/3006/2018 CAV JUDGMENT facts and circumstances of a given case, does not adversely affect the administration of criminal justice and does not encourage commission of such crime so as to prejudicially affect the society at large.
55. Thus, there is hardly any judgment brought to the notice of this court which lays universal principle that wherever the accused is convicted for two different transactions under two different enactments at two different points of time, then the court is divested of its power and jurisdiction under the provisions of section 427(1) of the Code. The emphasis in the language under section 427(1) is not on different offences but the application thereof is on the premise of undergoing sentence of imprisonment in a previous conviction and directing sentence of imprisonment on a subsequent conviction to run consecutively unless directed to run concurrently by the court of competent jurisdiction. The exclusion of the provisions of section 427(1) with reference to different transactions, different offences and different cases, is not comprehensible within the language, particularly, in view of the unambiguous and clear terms used by the legislature in section 427(1) of the Code. The section is probably intended to achieve a twin purpose, one which is beneficial to the accused where the court is expected to consider directing the imposition of subsequent sentences to run consecutively or concurrently with the previous sentence and secondly, a general and administrative concept that of overcrowded jails where under-trials and convicts are lodged so as to even require the State to act in the interest of administration of criminal justice system and not to frustrate the purpose of sentencing by ill-treating the convict. These alongwith the above-referred criteria are relevant consideration for exercise of jurisdiction but certainly are not determinative as they would have to be seen in the facts and circumstances of a given case. The court which exercises such jurisdiction has to be the court of competent jurisdiction and the matter essentially should fall within its jurisdiction. Exercise of judicial discretion presupposes legal and inherent jurisdiction to entertain such matters."
29. The Supreme Court, in Nagraja Rao vs. Central Page 56 of 68 R/SCR.A/3006/2018 CAV JUDGMENT Bureau of Investigation, (2015) 4 SCC 302, held as under;
" 13. The issue as to in which circumstances the Court should direct the sentences to run "concurrently" or "consecutively" after the accused is convicted of more than one offence in one trial or more has been the subject matter of several cases in this Court and thus remains no more res integra. This issue was considered by this Court while considering the scope of Sections 31, 427 and 428 of the Code and Section 71 of Indian Penal Code.
14. We consider it apposite to refer to some of the decisions.
15. In Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti v. Assistant Collector of Customs (Prevention), Ahmedabad and Anr., 1988 4 SCC 183, the accused was sentenced to undergo 7 years imprisonment and a fine of Rs. 10 lakhs was imposed for having found to be in possession of primary gold worth Rs. 1.4 crores which was in violation of the Gold (Control) Act. He was subsequently indicted for infringing the provisions of Customs Act by smuggling gold valued at Rs. 12.5 Crores and exporting silver worth Rs. 11.5 Crores. The accused pleading guilty in commission of the offences was awarded 4 years imprisonment and also a fine. Both the sentences were directed to run "consecutively". However, the State contended that the offence under the Customs Act merited the maximum sentence, while the accused contended that sentences should run "concurrently". The High Court, however, enhanced the sentence as contended by the State and rejected the plea of the accused in regard to the award of sentences. This Court in an appeal filed by the accused accepted the plea raised by him and while allowing his appeal directed both the sentences to run "concurrently" by referring to Section 427 of the Code.
16 The following observations made by this Court in paras 9 and 10 are apposite:
9. The section relates to administration of criminal justice Page 57 of 68 R/SCR.A/3006/2018 CAV JUDGMENT and provides procedure for sentencing. The sentencing court is, therefore, required to consider and make an appropriate order as to how the sentence passed in the subsequent case is to run. Whether it should be concurrent or consecutive
10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.
17. Likewise, a question arose before the three-judge Bench in State of Maharashtra and Anr. v. Najakat Alia Mubarak Ali, 2001 6 SCC 311, as to whether the accused convicted in two cases one after another was entitled to claim set off the period of detention during investigation, inquiry or trial from the sentence imposed on conviction in both the cases. While interpreting Section 428 of the Code, the majority of the judges answered the question in affirmative. While answering the question, Justice Thomas, speaking for majority of the Judges, made the following observations, which are pertinent.
18. In the above context, it is apposite to point out that very often it happens, when an accused is convicted in one case under different counts of offences and sentenced to different terms of imprisonment under each such count, all such sentences are directed to run concurrently. The idea behind it is that the imprisonment to be suffered by him for one count of offence will, in fact and in effect be imprisonment for other counts as well.
19. The aforesaid principle of law was relied upon by this Court in Chatar Singh v. State of M.P, 2006 12 SCC 37 and State of Punjab v. Madan Lal, 2009 5 SCC 238, and lastly recently in Manoj @ Panu v. State of Haryana, 2014 2 SCC 153, wherein this Court taking recourse to Section 31 of the Code directed in somewhat similar facts that the sentences awarded to the accused to run "concurrently" in place of "consecutively".
20. Keeping the aforesaid principle of law in mind and Page 58 of 68 R/SCR.A/3006/2018 CAV JUDGMENT applying the same to the facts of this case in the light of powers available Under Section 31 of the Code, we are of the considered opinion that both the sentences awarded to the Appellant in the case at hand should run "concurrently" and this we do by invoking Section 31 which enables the Court to so direct.
21. In our considered opinion, this is a fit case where we can direct the sentences awarded to the Appellant to run "concurrently" for the reasons that firstly, the case out of which this appeal arises relates to the year 1993 and is pending for a long period of 21 years; secondly, the two sentences, which were imposed on the Appellant, arose out of one offence of theft punishable Under Section 381 Indian Penal Code tried in one trial; thirdly, the provisions of Section 52 of the IPO Act were required to be invoked against the Appellant because he was the postal employee; fourthly, the Gold Chain was long recovered and also handed over to the person concerned; fifthly, the Appellant has already been dismissed from services due to impugned conviction; and lastly, the Appellant has been suffering from heart ailment since long, as is proved by documents filed along with the Appellant's affidavit 03.11.2014.
22. It is for all these reasons, in our considered opinion, the interest of justice would be sub-served by directing both the sentences awarded to the Appellant to run "concurrently". Since we have upheld the conviction, which was not challenged by the Appellant in this appeal, the directions to run both the sentences "concurrently" can always be passed by the appellate Court because such directions are in the nature of consequential on and incidental to the affirmance of the conviction as held by this Court in the case Sawal Das v. State of Bihar, 1975 3 SCC 156."
30 In O.M. Cherian @ Thankachan vs. State of Kerala & Ors., (2015) 2 SCC 501, the Supreme Court has exhaustively explained the position of law on the subject as under;
"9. Section 31 Cr.P.C. relates to the quantum of punishment that the court has jurisdiction to pass where the accused is convicted for two or more offences at one Page 59 of 68 R/SCR.A/3006/2018 CAV JUDGMENT trial. Section 31 Cr.P.C. reads as follows:-
"S.31. Sentence in cases of conviction of several offences at one trial.. -(1) When a person is convicted at one trial of two or 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-- in no case shall such person be sentenced to imprisonment for a longer period than fourteen years;
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 deemed to be a single sentence."
10. Section 31 Cr.P.C. relates to the quantum of punishment which may be legally passed when there is
(a) one trial and (b) the accused is convicted of "two or more offences". Section 31 Cr.P.C. says that subject to the provisions of Section 71 IPC, Court may pass separate sentences for two or more offences of which the accused is found guilty, but the aggregate punishment must not exceed the limit fixed in the proviso
(a) and (b) of sub-section (2) of Section 31 Cr.P.C. In Section 31(1) Cr.P.C., since the word "may" is used, in our considered view, when a person is convicted for two or more offences at one trial, the court may exercise its discretion in directing that the sentence for each offence may either run consecutively or concurrently subject to the provisions of Section 71 IPC. But the aggregate must Page 60 of 68 R/SCR.A/3006/2018 CAV JUDGMENT not exceed the limit fixed in proviso (a) and (b) of sub- section (2) of Section 31 Cr.P.C. that is - (i) it should not exceed 14 years and (ii) it cannot exceed twice the maximum imprisonment awardable by the sentencing court for a single offence.
11. The words "unless the court directs that such punishments shall run concurrently" occurring in sub- section (1) of Section 31, make it clear that Section 31 Cr.P.C. vests a discretion in the Court to direct that the punishment shall run concurrently, when the accused is convicted at one trial for two or more offences. It is manifest from Section 31 Cr.P.C. that the Court has the power and discretion to issue a direction for concurrent running of the sentences when the accused is convicted at one trial for two or more offences. Section 31 Cr.P.C. authorizes the passing of concurrent sentences in cases of substantive sentences of imprisonment. Any sentence of imprisonment in default of fine has to be in excess of, and not concurrent with, any other sentence of imprisonment to which the convict may have been sentenced.
12. The words in Section 31 Cr.P.C "....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" indicate that in case, the Court directs sentences to run one after the other, the Court has to specify the order in which the sentences are to run. If the Court directs running of sentences concurrently, order of running of sentences is not required to be mentioned. Discretion to order running of sentences concurrently or consecutively is judicial discretion of the Court which is to be exercised as per established law of sentencing. The court before exercising its discretion under Section 31 Cr.P.C. is required to consider the totality of the facts and circumstances of those offences against the accused while deciding whether sentences are to run consecutively or concurrently.
13. Section 31 (1) Cr.P.C. enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the Courts impose sentence Page 61 of 68 R/SCR.A/3006/2018 CAV JUDGMENT of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the Court does not direct that the sentences shall run concurrently, then the sentences will run consecutively by operation of Section 31 (1) Cr.P.C. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment. In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, Court has to direct those sentences to run concurrently.
14. The opening words "in the case of consecutive sentences" in sub- section (2) of Section 31 Cr.P.C. make it clear that this sub-section refers to a case in which "consecutive sentences" are ordered. The provision says that if an aggregate punishment for several offences is found to be in excess of punishment which the Court is competent to inflict on a conviction of single offence, it shall not be necessary for the Court to send the offender for trial before a higher court. Proviso (a) is added to sub- section (2) of Section 31 Cr.P.C. to limit the aggregate of sentences - that in no case, the aggregate of consecutive sentences passed against an accused shall exceed fourteen years. "Fourteen years rule" contained in clause
(a) of the proviso to Section 31 (2) Cr.P.C. may not be applicable in relation to sentence of imprisonment for life, since imprisonment for life means the convict will remain in jail till the end of his normal life.
15. In Ramesh Chilwal vs. State of Uttarakhand (2012) 11 SCC 629, the accused was convicted under Section 302 IPC and sentenced to undergo imprisonment for life. Accused was also convicted under Sections 2/3 [3(1)] of the U.P. Gangsters and Anti-Social Activities (Prevention) Act, 1986 and sentenced to undergo rigorous imprisonment for ten years and under Section 27 of the Arms Act sentenced to further undergo rigorous imprisonment for seven years. Considering the fact that the trial court had awarded life sentence under Section 302 IPC, this Court directed that all sentences imposed Page 62 of 68 R/SCR.A/3006/2018 CAV JUDGMENT under Section 302 IPC, Sections 2/3 [3(1)] of the Gangsters Act and Section 27 of the Arms Act to run concurrently.
16. When the prosecution is based on single transaction where it constitutes two or more offences, sentences are to run concurrently. Imposing separate sentences, when the acts constituting different offences form part of the single transaction is not justified. So far as the benefit available to the accused to have the sentences to run concurrently of several offences based on single transaction, in V.K. Bansal vs. State of Haryana & Anr. (2013) 7 SCC 211, in which one of us (Justice T.S. Thakur) was a member, this Court held as under:- "... we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor."
17. This Court in the case of Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti vs. Asstt. Collector of Customs (Prevention) Ahmedabad and Anr., (1988) 4 SCC 183, recognized the basic rule of conviction arising out of a single transaction justifying the concurrent running of the sentences. The following passage in this regard is relevant to be noted :-
"The basic rule of thumb over the years has been the so- called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different." In Manoj alias Panu vs. State of Haryana, (2014) 2 SCC 153, the Bench followed Mohd. Akhtar Hussain's case.
18. While referring the matter to a larger Bench, the Bench observed that in Mohd. Akhtar Hussain's case, Section 31 Cr.P.C. was not noticed by this Court. It is to be pointed out that in Mohd. Akhtar Hussain's case and Manoj's case, the appellants who were convicted for different counts of offences arose out of a single transaction, favouring the exercise of discretion to the Page 63 of 68 R/SCR.A/3006/2018 CAV JUDGMENT benefit of the accused that the sentences shall run concurrently. Those decisions are not cases arising out of conviction at one trial of two or more offences and therefore, reference to Section 31 Cr.P.C. in those cases was not necessitated.
19. As pointed out earlier, Section 31 Cr.P.C. deals with quantum of punishment which may be legally passed when there is - (a) one trial and
(b) the accused is convicted of two or more offences. Ambit of Section 31 is wide, covering not only single transaction constituting two or more offences but also offences arising out of two or more transactions. In the two judgments in Mohd. Akhtar Hussain and Manoj (supra), the issue that fell for consideration was the imposition of sentence for two or more offences arising out of the single transaction. It is in that context, in those cases, this Court held that the sentences shall run concurrently.
20. Under Section 31 Cr.P.C. it is left to the full discretion of the Court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the Reference by holding that Section 31 Cr.P.C. leaves full discretion with the Court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the Court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the Court may direct. We also do not find any conflict in earlier judgment in Mohd. Akhtar Hussain Page 64 of 68 R/SCR.A/3006/2018 CAV JUDGMENT and Section 31 Cr.P.C. "
31. In one of the recent pronouncements of the Supreme Court in the case of Neera Yadav vs. Central Bureau of Investigation, (2017) SCC 757, the law on the subject has been exhaustively explained. The relevant paras of the judgment are extracted hereunder;
"70. The sentencing Court has the discretion to direct concurrency. The investiture of such discretion, presupposes that it will be exercised on sound principles and not on whims. In the Criminal Procedure Code, there are no guidelines or specific provisions to suggest under what circumstances the various sentences of imprisonment shall be directed to run concurrently or consecutively. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1) Cr.P.C. Whether or not a direction ought to be issued in a given case would depend upon the nature of the offence or offences committed. In para (69) in K. Prabhakaran v. P. Jayarajan, 2005 1 SCC 754, contains a discussion on the topic. To quote:-
"69. In the case of the respondent, the Magistrate ordered that the sentence on various counts shall run consecutively. That does not mean that the respondent had been convicted of any offence, for which the sentence of imprisonment is two years or more. The direction for the sentence to run concurrently or consecutively is a direction as to the mode in which the sentence is to be executed. That does not affect the nature of the sentence It is also important to note that in the Code of Criminal Procedure, there are no guidelines or specific provisions to suggest under what circumstances the various sentences of imprisonment shall be directed to run concurrently or consecutively. There are no judicial decisions, to my knowledge, by superior courts laying down the guidelines as to what should be the criteria for directing the convict to undergo imprisonment on various counts concurrently or consecutively. In certain cases, if the person convicted is Page 65 of 68 R/SCR.A/3006/2018 CAV JUDGMENT a habitual offender and he had been found guilty of offences on various counts and it is suspected that he would be a menace if he is let loose on the society, then the court would direct that such person shall undergo the imprisonment consecutively "
71. It is well settled that where there are different transactions, different crime numbers and cases have been decided by different judgments, concurrent sentences cannot be awarded under Section 427 Cr.P.C. In Mohd. Akhtar Hussain v. Asst. Collector, Customs, 1988 4 SCC 183, it was held as under:-
"10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different.
12. The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold (Control) Act, but it is evidently on different transactions. The complaint under the Gold (Control) Act relates to possession of 7000 tolas of primary gold prohibited under Section 8 of the said Act. The complaint under the Customs Act is with regard to smuggling of gold worth Rs 12.5 crores and export of silver worth Rs 11.5 crores. On these facts, the courts are not unjustified in directing that the sentences should be consecutive and not concurrent."
72. The above general rule that there cannot be concurrency of sentence if conviction relates to two different transactions, can be changed by an order of the Court. There is no strait jacket formula for the Court to follow in the matter of issue or refusal of a direction within the contemplation of Section 427(1) Cr.P.C. Depending on the special and peculiar facts and circumstances of the case, it is for the court to make the Page 66 of 68 R/SCR.A/3006/2018 CAV JUDGMENT sentence of imprisonment in the subsequent trial run concurrently with the sentence in the previous one. In Benson v. State of Kerala, 2016 10 SCC 307, this Court directed the substantive sentences imposed on the appellant to run concurrently. In V. K. Bansal v. State of Haryana, 2013 7 SCC 211, some sentences were to run concurrently and some consecutively. In paras (14) and (16) in V.K. Bansal's case, it was held as under:-
"14. We may at this stage refer to the decision of this Court in Mohd. Akhtar Hussain v. Collector of Customs, 1988 4 SCC 183 in which this Court recognised the basic rule of convictions arising out of a single transaction justifying concurrent running of the sentences. The following passage is in this regard apposite: (SCC p. 187, para 10) "10. The basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. If a given transaction constitutes two offences under two enactments generally, it is wrong to have consecutive sentences. It is proper and legitimate to have concurrent sentences. But this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different."
16. In conclusion, we may say that the legal position favours exercise of discretion to the benefit of the prisoner in cases where the prosecution is based on a single transaction no matter different complaints in relation thereto may have been filed as is the position in cases involving dishonour of cheques issued by the borrower towards repayment of a loan to the creditor."
32. Now examining the facts and circumstances of the present case on the parameters as laid down by the Apex Court in Ibrahim Ahmed Bhatti's case (supra) and the other decisions referred to above, it is observed that the circumstances which persuades me to take a view in favour of the accused are that the accused has already undergone sentence of 10 years for the offence punishable under section Page 67 of 68 R/SCR.A/3006/2018 CAV JUDGMENT 489(B) and 489(C ) of the IPC. Later, he came to be convicted and sentenced for 3 years rigorous imprisonment for the offence under section 135 of the Customs Act. So far as the sentence of 3 years rigorous imprisonment for the offence under section 135 of the Customs Act is concerned, the writ applicant could be said to have started undergoing the same now at this point of time, i.e., after completing 10 years of rigorous imprisonment for the offence under section 489 of the IPC. Thus, if the accused undergoes consecutive sentence, then he will have to spend 13 years in jail. Besides, he would have to undergo further sentence in default of payment of fine.
33. I do not undermine the seriousness of the offence, but in my view, having regard to the peculiar facts and circumstances of the case, both the sentences should run concurrently.
34. In the result, this writ application is allowed with a direction that both the sentences shall run concurrently. As the writ applicant has already undergone 10 years rigorous imprisonment so far as the offence punishable under sections 489(B) and (C ) of the IPC are concerned, and as it is ordered that the sentences shall run concurrently, the jail authority shall look into the same and pass an appropriate order for release of the writ applicant from jail, if not required in any other case.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 68 of 68