Supreme Court of India
BENSONversusSTATE OF KERALA
- Citation
- 2016 INSC 944
- Decided
- 3 October 2016
- Disposal
- Case Partly allowed
- Bench
- DIPAK MISRA
Holding
The Court has discretionary power under Section 427(1) CrPC to order concurrent running of subsequent sentences, and it exercised that discretion to allow concurrent substantive sentences in the present case while keeping fines and default sentences consecutive.
Summary
The appellant, Benson, was convicted in twelve separate theft cases under Sections 379 and 414 of the IPC, each tried and sentenced individually. He petitioned for the subsequent sentences to run concurrently with the sentence already being served (Crime No.8). The Supreme Court examined Section 427(1) of the Criminal Procedure Code, which permits a court to order concurrent running of a later sentence at its discretion, considering the nature of the offences and the factual matrix. Relying on the precedent set in V.K. Bansal v. State of Haryana, the Court held that discretion must be exercised judicially and not mechanically. Consequently, it directed that the substantive sentences in the four pending cases (CC Nos. 158/04, 1039/03, 390/04, 1168/06) run concurrently with the operative sentence, while fines and default sentences would remain consecutive. The appeals were therefore partly allowed, modifying the earlier orders accordingly.
Issues considered
- Whether a court may, under Section 427(1) CrPC, direct that a subsequent imprisonment sentence run concurrently with a previous sentence.
- Whether the discretion to grant concurrent sentences should be exercised in the present facts involving multiple theft offences.
- Whether the direction for concurrent running applies to substantive sentences only, excluding fines and default sentences.
Legislation cited
Subjects
concurrent sentencesSection 427 CrPCdiscretionary powermultiple convictionssubstantive sentencedefault sentencefineremission
Judgment
[2016] 8 S.C.R. 166
A BENSON
v.
STATE OF KERALA
(Criminal Appeal No. 958of2016)
B OCTOBER 03, 2016
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
Code of Criminal Procedure, 1973 - s.42? - Concurrent
running of subsequent sentence with previous sentence - Appellant
c charged of having committed various offences - Tried separately
and sentenced in each of the offences - Plea of appellant for
concurrent running of sentences - Held: Court has the power and
discretion to issue a direction that the subsequent sentence shall
run concurrently with the previous sentence - Whether or not a
direction ought to be issued in a given case would depend upon the
D nature of the offence or offences committed and the fact situation -
On facts, sentence imposed on appellant in each of the present cases
to run concurrently with the sentence imposed upon the appellant
in another crime committed by him which is currently operative -
Howeve1; this benefit limited in respect of substantive sentences and
not on default sentences and sentences of fine.
E
Partly allowing the appeals, the Court
HELD: 1. In terms of sub-section (1) of Section 427 of
Cr.P.C., if a person already undergoing a sentence of imprisonment
is sentenced on a subsequent conviction to imprisonment, such
F subsequent term of imprisonment would normally commence at
the expiration of the imprisonment to which he was previously
sentenced. Going by this normal principle, in the instance case
the sentence chart indicated in communication mentioned is quite
correct. However this normal rule is subject to a qualification
and it is within the powers of the Court to direct that the
G subsequent sentence shall run concurrently with the previous
sentence. [Para 6][174-G-H; 175-A)
2. In the present case, the appellant stands convicted and
sentenced in 12 different matters including the present 4 matters.
The maximum sentence in respect of the present crimes is two
H
166
BENSON v. STATE OF KERALA 167
years' rigorous imprisonment. As per the record, these crimes A
were committed on the same day. Having considered the matters,
the sentences imposed in each of the present 4 cases (which
appear at serial nos.9, 10, 11 and 12 of the chart/communication
received from the Director General of Prisons & Correctional
Services) shall run concurrently with the sentence imposed in
8
crime no.8 which is currently operative. This benefit is granted
in respect of substantive sentences to the appellant but the
sentences of fine and the default sentences arc maintained. If
the fine as imposed is not deposited, the default sentence or
sentences are to run consecutively and not concurrently. [Paras
4, 9)174-A; 176-B-D] C
V.K. Bansal v. State of Haryana (2013) 7 SCC
211 : :Z013 (7) SCR 617 - referred to.
Case Law Reference
2013 (7) SCR 617 referred to Para 7 D
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
958of2016.
From the Judgment and Order dated 16.09.2015 of the High Court
ofKerala at Ernakulam in Criminal Appeal No. 808 of2015
E
WITH
Criminal Appeal Nos. 957, 959 & 960 of2016.
Ranjith B. Marar, Ms. Lakshmi N. Kaimal and T. K. Babu, Advs.
for the Appellant.
G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms. Beena F
Prakash, Manu Srinath and Ramesh Babu M. R., Advs. for the
Respondent.
The Judgment of the Court was delivered by
UDAY UMESH LALIT, J. I. Leave granted. These appeals . G
by Special Leave arise out of judgments and orders passed by the High
Court of Kerala in Criminal Revision Petition Nos. (i) 808 of 2015 on
16.09.2015, (ii) 859of2015 on 16.09.2015, (iii) 858of2015 on 14.09.2015
and (iv) 670of2015 on 17.09.2015.
H
168 SUPREME COURT REPORTS [2016] 8 S.C.R.
A 2. On the allegation that the appellant was involved in committing
thefts he was charged of having committed offences on different
occasions and was separately tried in i) CC No.158 of 2004 before
Judicial Magistrate First Class, Chavakkad for offences punishable under
Section 379, 414 read with 34 !PC, ii) CC No.1039 of2003 by Judicial
B Magistrate First Class, Chavakkad for offences punishable under Section
379, 414 read with 34 !PC, iii) CC No.390 of2004 by Judicial Magistrate
First Class, Chavakkad for offences punishable under Section 3 79, 414
read with 34 !PC and (iv) CC No.1168 of2006 by Judicial Magistrate
First Class, Kunnamkulam. By separate judgments, the appellant was
convicted and sentenced in each of the aforesaid crimes. The respective
C appeals preferred by the appellant were dismissed by the Sessions Judge,
Thrissur. The appellant filed Criminal Revision Petitions in the High
Court which were also dismissed. The following chart would disclose
the relevant details:-
D
C.C.'.\'o,[ Date Date of CrL Appeal CrL SLP
Offence of Conviction and '.\'o. R.P. '.\'o.
occurrence Sentence by '.\'o. in
Judicial the
E Magistrate High
First Class Court
15&2004 03.06.2003 28.06.06, 5312012 80R SLP
in the Court RI for 2 years decided on 2015 (Cr!.)
of Judicial and fine of 15.11.2012 3757,'
Magistrate First Rs.1,000/- for by Sessions 2016
F Class (in shon offence u!s 379 Judge,
JMFC), IPC and RI for 2 Thrissur
Chmkkad! years u/s 414 ID
U/s 379, 414 ri\'' RI for 3months
34 ofIPC
G
H
BENSON v. STATE OF KERALA 169
[UDAY UMESH LAUT, J.]
A
1039;2003 03.06.2003 28.06.06, 7592011 859! SLP
in the Court RI for 2 years decided on 2015 (Cd.)
ofJMFC, and fine of 17.09.2012 37591
Chavakkad/ Rs.l.OOO:- for by Sessions 2016
U!s 379, 414 r;\v offence u!s 379 Judge, B
34 of!PC !PC and RI for 2 Turissur
years for offence
u/s 414 !PC, ID
RI for 3months.
3902004 03.06.2003 28.06.06, 7612011 858. SLP c
in the Court RI for 2 years decided on 2015 (CrL)
of JMFC, and fine of 04.08.2012 3758/
Chavakkadl Rs.1,000.'- for by Sessions 2016
Uis 379, 414 r/w offence u:s 379 Judge,
34ofIPC !PC and RI for 2 Turissur D
years u.!s 414 ID
RI for 3months
1168/2006 03.06.2003 31.12.08, 46L201! 670! SLP
in the Court RI for 1 year decided on 2005 (Cr!.)
ofJMFC, and fine of 30.09.2011 3756/
E
Kunnamkulam! Rs.1,000'- !D SI by Sessions 2016
U.s 379 r/w 34 for 6months Judge,
of!PC Tiuissur
F
3. These matters came up on 22.04.20 I 6 when this Court noted
the submissions of the learned counsel for the appellant regarding
concurrent running of sentences and issued notice to the State. The
learned counsel appearing for the State has produced before us
communication dated 27.05.2016 from the Director General of Prisons G
and Correctional Services, which is as under:-
H
170 SUPREME COURT REPORTS [2016) 8 S.C.R.
A "PRISONS HEADQUARTERS,
THIRUVANANTHAPURAM
Dated: 27.05.2016
WPl-9606/2016
From
B
The Director General of Prisons &
Correctional Services.
To
The Law Officer,
C Office of the Resident Commissioner,
Travancore Palace,
Kasturba Gandhi Marg,
New Delhi-110 001.
Sir,
D Sub: Prisons - Prisons Headquarters, Kerala - Supreme
Coui1 case - SLP (Crl) CRLMP No.6727/2016/Benson
vs. State of Kerala - reg.
Ref: Lr. No.38749/81/2016/Home dtd.19/05/2016
Attention is invited to the subject & reference cited.
E
I may furnish the details called for vide reference is noted
below:
Conviction Details
SL Case No., Court Sentence Details
F No. and Warrant Date
1 cc 613i03 Sentenced to undergo RI for3 years uis 379
JFCM I, Thrissur IPC
Wdt.20-11-2003 Set off97 days. Atlarge bail period -153
days.
2 cc 533;04 Sentenced to undergo RI for 2 years ufs 392
G JFMC II, Thrissur IPC
Wdt.8-6-2005 Set off 521 days.
3 cc 529!04 Sentenced to undergo RI for 3 years ufs 392
JFMC II, Thrissur IPC,
wdt.18-6-2005 Set off 493 days
H
BENSON v. STATE OF KERALA 171
[UDAY UMESH LAUT, J.]
A
4 CC 1270113 JFCM Sentenced to undergo RI for 2 years +fine
Changanassery Rs.50001- id SI for 1month u/s 380 IPC, RI
Wdt.18-6-2005 for 2 years +fine Rs.5 ,000!- L'd SI for I
month uis 457 IPC (Concurrently) Set of 348
days B
5 CC 1115103 JFCM Sentenced to undergo RI for 2 years +fine
Irinjalakk11da Rs.2,000/- i!d SI for 2 months u/s 379 IPC
Wdt. 4-7-2005 Set off 402 davs
6 cc 932105 Sentenced to undergo RI for 2 years +fine
JFMC Irinjalak11da Rs-2,000,- L'd SI for 2 months 11's 379 IPC c
Wdt.4-7-2005 Set off 465 days
7 cc 171105 Sentenced to widergo RI for 5years u.s 392
ADSJ Adhoc II !PC, RI for 3 years u/s 120(B) IPC
Kanayam (ConC\llrently) Set off 418 days.
Wdt.25-11-2005
D
8 cc 274,06 Sentenced to undergo SI for 3 years us 205
JFCM Kodwigallur !PC
Wdt.30-9-2008 Set off 414 days
9 cc 158/04 Sentenced to undergo RI for 2 years +fme
JF CM Chava.kkad Rs.1,000. - iid SI for 3 months u's 379 IPC,
wdt.28-6-2006 RI for2 years u·s 414 !PC (Concurrently) E
Set off347 days
10 CC 1039'03 JFCM Seutenced to undergo RI for 2 years .,. fine
Chavakkad Rs.1,000- i'd SI for 3 months ws 379 !PC, RI
\Vdt. 28-6-2006 for 2 years u.'s 414 !PC (Concurrently)
Ser off 240 days F
11 cc 39004 Sentenced to undergo RI for 2 years +fine
JFCM Chavakkad Rs.1,000- i'd SI for 3 momhs 11s 379 IPC, RI
Wdr.28-6-2006 for 2 years ws 414 !PC (Concurrently) Set off
14ldays
12 cc 1168,06 Sentenced to undergo RI for 1year t fine
JFCM Rs.1,000 Ld SI for 2months uis 379 r/w 34 G
Kunnamangalam !PC Set off 14 days
Wdt.31-12-2008
H
172 SUPREME COURT REPORTS [20 I 6) 8 S.C.R.
A
Sentence Calculation
S.No. Case No. Sentence Calculation
1n Sentence Started 20-11-2003
B 1 cc 613/03 Sentence 3 years 19-11-2006
JFCM I, Thrissur Set Off 97days 14-08-2006
At large 153 days 14-01-2007
)
cc 533/04 2ui Sentence Started 14-01-2007
JFCM II, Thrissur Semence 2years 14-01-2007
c Set off 521 days 12-08-2009
3 cc 529<04 3m Sentence Started 12-08-2009
JFCM II, Thrissur Sentence 3 years 12-08-2010
Set off 49 3davs 06-04-2009
4 CC 1270.'13 JFCM 4± Sentence Started 06-04-2009
D
Changanasseiy Sentence 2 years 06-04-2011
Set off 348 days 23-04-2010
I
5 CC 115/03 JFCM 5± Sentence Started 23-04-2010
hinjalili:uda Semence 2vears 23-04-2012
E Set off ~02 days lS-03-2011
I 6 cc 932'05 6&. Sentence Staned 18-03-2011
I JFCM Irinjalakuda Sentence 2yms lS-03-2013
Set off 465 days .
09-12-2011
7 SC 171/05 /t't. Sentence Started 09-12-2011
F ADSJ Adhoc II, Sentence 5 years 09-12-2016
Kottayam Set off 418 days 18-10-2015
s cc 27t06 Stt. Sentellce Staned 18-10-2015
JFCM Kodullgallur Sentence 3years 18-10-2018
Set off~ 14 days 30-08-2017
G
' 9 cc 1ss.o.i 9:: Sentence Stanrd 30-0S-~017
I
I IF C?>I C!ma:.;kad Senteuce 2wats 30-0S-~019
I
I Set off 34 7davs 17-09-2018
H
BENSON v. STATE OF KERALA 173
[UDAY UMESH LALJT, J.]
A
10 CC 1039/03 JFCM 1OU: Sentence Started 17-9-201&
Chavakkad Sentence 2years 17-09-2020
Set off 240 days 21-01-2020
11 cc 390/04 11 tl: Sentence Started 21-01-2020 B
JFCM Sentence 2 years 21-01-2022
Chavakkad Set off l·H days 02-09-2021
12 cc 1168106 !2U: Sentence Started 02-09-2021
JFCM Sentence 1year 02-09-2022
Kunnamangalam Set off 14 days 19-08-2022 c
Fine Sentence 19-10-2022 (F4)
Details 19-12-2022
(F5)
19-02-2023
(F6) D
19-05-2023
(F9)
19-08-'.l023 (FlO)
19-11-2023
(11)
E
19-05-2024
tF12)
As per the records, he· wi II spend 12 years 3 months and 8
F
days in prison as on 31 /07/2016.
His date of expiry of substantive sentence falls on 19-08-
2022 without any remission. He has already earned 3 years
I 0 months 27 days remission as on 26-05-16. He has to
pay fine ofRs.18,000/- in various cases in default he has to
undergo I year 5 months in Jail. G
Yours faithfully,
Sd/-
Director General of Prisons &
Correctional Services"
H
174 SUPREME COURT REPORTS (2016) 8 S.C.R.
A 4. According to the aforesaid communication, the appellant stands
convicted and sentenced in 12 different matters including the present
matters which appear at Serial Nos.9, I 0, 11 and 12 in the chart. Going
by the sentence calculation, the sentence in the 9'h case would begin on
30.08.2017 and finally, the sentence in the J 2•h case, after getting all
benefits of set off, would be over on 02.09.2022.
B
5. Section 427 of the Code of Criminal Procedure, 1973 is as
under:-
"427. Sentence on offender already sentenced for
another offence. -(I) When a person already undergoing
c 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 .
D
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
E
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
F conviction to imprisonment for a term or imprisonment for
life, the subsequent sentence shall run concurrently with
such previous sentence."
6. In terms of sub-section (I) of Section 427, ifa person already
undergoing a sentence of imprisonment is sentenced on a subsequent
G conviction to imprisonment, such subsequent tenn of imprisonment would
normally commence at the expiration of the imprisonment to which he
was previously sentenced. Going by this normal principle, the sentence
chart indicated in the communication dated 27.05.2016 is quite correct.
However this normal rule is subject to a qualification and it is within the
1-1
BENSON v. STATE OF KERALA 175
[UDAY UMESH LAUT, J.]
powers of the Court to direct that the subsequent sentence shall run A
concurrently with the previous sentence.
7. In V.K.Bansal v. State of Haryww amt A11otl1er 1 it was
stated by th is Court:
"It is manifest from Section 427(1) that the Court has the
B
power and the discretion to issue a direction but in the very
nature of the power so conferred upon the Court the
discretionary power shall have to be exercised along the
judicial lines and not in a mechanical, wooden or pedantic
manner. It is difficult to lay down any straitjacket approach
in the matter of exercise of such discretion by the courts. c
There is no cut and dried formula for the Court to follow in
the matter of issue or refusal of a direction within the
contemplation of Section 427( I). Whether or not a direction
ought to be issued in a given case would depend upon the
nature of the offence or offences committed, and the fact
situation in which the question of concurrent running of the D
sentences arises."
This Court then went on to club various crimes in respect of which
sentences were imposed upon the appellant therein in three groups; i)
the first having 12 cases, ii) the second having 2 cases and iii) the third
having a single case. This Court directed that substantive sentences E
within first two groups would run inter se concun-ently and the substantive
sentences in first two groups and that in respect of the case in the third
group would run consecutively. The benefit was confined only in respect
of substantive sentences and no qua sentences in default.
8. We have gone through the record and considered rival F
submissions. We do not find anything incorrect in the assessment made
by the Courts below and in our view the orders of conviction recorded
against the appellant in the present cases are quite correct. We also do
not find anything wrong in the quantum of sentence imposed in respect
of the respective crimes. However going by the sentence calculation, G
the sentence imposed in respect of the first crime sta1ied with effect
from 20.11.2003 and the last sentence would be over by 19.08.2022,
which would effectively mean that the total length of sentences in
aggregate would be around 19 years. We are not concerned with first
1
(2013) 7 sec 211 H
176 SUPREME COURT REPORTS [2016] 8 S.C.R.
A eight matters and sentences imposed in respect of those crimes. The
sentence in respect of 8'h crime is presently running against the appellant
and would be over on 30.08.2017.
9. The maximum sentence in respect of the present crimes is two
years' rigorous imprisonment. As per the record, these crimes were
B committed on the same day. Having considered the matters, we deem it
appropriate to direct that the sentences imposed in each of the cases,
i.e. (i) CC No.158 of2004, (ii) CC No. I 039 of2003, (iii) CC No. 390 of
2004 and (iv) CC No. 1168 of 2006 namely those at Sl.Nos.9 to 12
respectively as indicated in the sentence chart in the communication
dated 27.05.2016 shall run concurrently with the sentence imposed in
c Crime No.8 which is currently operative. We grant this benefit in respect
of substantive sentences to the appellant but maintain the sentences of
fine and the default sentences. If the fine as imposed is not deposited,
the default sentence or sentences will run consecutively and not
concurrently.
D I 0. The appeals are thus allowed in part and the orders of sentences
stand modified accordingly.
Ankit Gyan Appeals partly allowed.
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