BENSON Vs. STATE OF KERALA
Section 34 - Acts done by several persons in futherance of common intention
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 958 of 2016, Judgment Date: Oct 03, 2016
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 958 OF 2016
(Arising out of SLP (Criminal) No.3757 of 2016)
Benson ….Appellant
Versus
State of Kerala …. Respondent
With
CRIMINAL APPEAL NO. 960 OF 2016
(Arising out of SLP(Criminal) No.3759 of 2016)
CRIMINAL APPEAL NO. 959 OF 2016
(Arising out of SLP(Criminal) No.3758 of 2016)
and
CRIMINAL APPEAL NO. 957 OF 2016
(Arising out of SLP(Criminal) No.3756 of 2016)
J U D G M E N T
Uday Umesh Lalit, J.
Leave granted. These appeals 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) 859 of 2015 on 16.09.2015, (iii)
858 of 2015 on 14.09.2015 and (iv) 670 of 2015 on 17.09.2015.
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 IPC, ii) CC No.1039 of 2003 by Judicial Magistrate First Class,
Chavakkad for offences punishable under Section 379, 414 read with 34 IPC,
iii) CC No.390 of 2004 by Judicial Magistrate First Class, Chavakkad for
offences punishable under Section 379, 414 read with 34 IPC and (iv) CC
No.1168 of 2006 by Judicial Magistrate First Class, Kunnamkulam. By
separate judgments, the appellant was convicted and sentenced in each of
the aforesaid crimes. The respective 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:-
These matters came up on 22.04.2016 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 and Correctional Services, which is as
under:-
“PRISONS HEADQUARTERS,
THIRUVANANTHAPURAM
Dated: 27.05.2016
WP1-9606/2016
From
The Director General of Prisons &
Correctional Services.
To
The Law Officer,
Office of the Resident Commissioner,
Travancore Palace,
Kasturba Gandhi Marg,
New Delhi – 110 001.
Sir,
Sub: Prisons – Prisons Headquarters, Kerala - Supreme Court case – SLP
(Crl) CRLMP No.6727/2016/Benson vs. State of Kerala – reg.
Ref: Lr. No.38749/B1/2016/Home dtd.19/05/2016
Attention is invited to the subject & reference cited.
I may furnish the details called for vide reference is noted below:
Conviction Details
|Sl. |Case No., Court |Sentence Details |
|No. |and Warrant Date | |
|1 |CC 613/03 |Sentenced to undergo RI for 3 years u/s 379 |
| |JFCM I, Thrissur |IPC |
| |Wdt.20-11-2003 |Set off 97 days. At large bail period -153 |
| | |days. |
|2 |CC 533/04 |Sentenced to undergo RI for 2 years u/s 392 |
| |JFMC II, Thrissur|IPC |
| |Wdt.8-6-2005 |Set off 521 days. |
|3 |CC 529/04 |Sentenced to undergo RI for 3 years u/s 392 |
| |JFMC II, Thrissur|IPC, |
| |Wdt.18-6-2005 |Set off 493 days |
|4 |CC 1270/13 JFCM |Sentenced to undergo RI for 2 years + fine |
| |Changanassery |Rs.5000/- i/d SI for 1 month u/s 380 IPC, |
| |Wdt.18-6-2005 |RI for 2 years + fine Rs.5,000/- i/d SI for |
| | |1 month u/s 457 IPC (Concurrently) Set of |
| | |348 days |
|5 |CC 1115/03 JFCM |Sentenced to undergo RI for 2 years + fine |
| |Irinjalakkuda |Rs.2,000/- i/d SI for 2 months u/s 379 IPC |
| |Wdt. 4-7-2005 |Set off 402 days |
|6 |CC 932/05 |Sentenced to undergo RI for 2 years + fine |
| |JFMC Irinjalakuda|Rs.2,000/- i/d SI for 2 months u/s 379 IPC |
| |Wdt.4-7-2005 |Set off 465 days |
|7 |CC 171/05 |Sentenced to undergo RI for 5 years u/s 392 |
| |ADSJ Adhoc II |IPC, RI for 3 years u/s 120(B) IPC |
| |Kottayam |(Concurrently) Set off 418 days. |
| |Wdt.25-11-2005 | |
|8 |CC 274/06 |Sentenced to undergo SI for 3 years u/s 205 |
| |JFCM Kodungallur |IPC |
| |Wdt.30-9-2008 |Set off 414 days |
|9 |CC 158/04 |Sentenced to undergo RI for 2 years + fine |
| |JFCM Chavakkad |Rs.1,000/- i/d SI for 3 months u/s 379 IPC,|
| |Wdt.28-6-2006 |RI for 2 years u/s 414 IPC (Concurrently) |
| | |Set off 347 days |
|10 |CC 1039/03 JFCM |Sentenced to undergo RI for 2 years + fine |
| |Chavakkad |Rs.1,000/- i/d SI for 3 months u/s 379 IPC, |
| |Wdt. 28-6-2006 |RI for 2 years u/s 414 IPC (Concurrently) |
| | |Set off 240 days |
|11 |CC 390/04 |Sentenced to undergo RI for 2 years + fine |
| |JFCM Chavakkad |Rs.1,000/- i/d SI for 3 months u/s 379 IPC, |
| |Wdt.28-6-2006 |RI for 2 years u/s 414 IPC (Concurrently) |
| | |Set off 141 days |
|12 |CC 1168/06 |Sentenced to undergo RI for 1 year + fine |
| |JFCM |Rs.1,000 i/d SI for 2 months u/s 379 r/w 34 |
| |Kunnamangalam |IPC Set off 14 days |
| |Wdt.31-12-2008 | |
| |Sentence Calculation |
|S. |Case No. |Sentence Calculation |
|No. | | |
| | |1st Sentence |20-11-2003 |
|1 |CC 613/03 |Started | |
| |JFCM I, Thrissur | | |
| | |Sentence 3 years |19-11-2006 |
| | |Set Off 97 days |14-08-2006 |
| | |At large 153 days |14-01-2007 |
|2 |CC 533/04 |2nd Sentence |14-01-2007 |
| |JFCM II, Thrissur |Started | |
| | |Sentence 2 years |14-01-2007 |
| | |Set off 521 days |12-08-2009 |
|3 |CC 529/04 |3rd Sentence |12-08-2009 |
| |JFCM II, Thrissur |Started | |
| | |Sentence 3 years |12-08-2010 |
| | |Set off 493 days | 06-04-2009 |
|4 |CC 1270/13 JFCM |4th Sentence |06-04-2009 |
| |Changanassery |Started | |
| | |Sentence 2 years |06-04-2011 |
| | |Set off 348 days |23-04-2010 |
|5 |CC 115/03 JFCM |5th Sentence |23-04-2010 |
| |Irinjalakkuda |Started | |
| | |Sentence 2 years |23-04-2012 |
| | |Set off 402 days |18-03-2011 |
|6 |CC 932/05 |6th Sentence |18-03-2011 |
| |JFCM Irinjalakuda |Started | |
| | |Sentence 2 years |18-03-2013 |
| | |Set off 465 days |09-12-2011 |
|7 |SC 171/05 |7th Sentence |09-12-2011 |
| |ADSJ Adhoc II, |Started | |
| |Kottayam | | |
| | |Sentence 5 years |09-12-2016 |
| | |Set off 418 days |18-10-2015 |
|8 |CC 274/06 |8th Sentence |18-10-2015 |
| |JFCM Kodungallur |Started | |
| | |Sentence 3 years |18-10-2018 |
| | |Set off 414 days |30-08-2017 |
|9 |CC 158/04 |9th Sentence |30-08-2017 |
| |JFCM Chavakkad |Started | |
| | |Sentence 2 years |30-08-2019 |
| | |Set off 347 days |17-09-2018 |
|10 |CC 1039/03 JFCM |10th Sentence |17-9-2018 |
| |Chavakkad |Started | |
| | |Sentence 2 years |17-09-2020 |
| | |Set off 240 days |21-01-2020 |
|11 |CC 390/04 |11th Sentence |21-01-2020 |
| |JFCM |Started | |
| |Chavakkad | | |
| | |Sentence 2 years |21-01-2022 |
| | |Set off 141 days |02-09-2021 |
|12 |CC 1168/06 |12th Sentence |02-09-2021 |
| |JFCM |Started | |
| |Kunnamangalam | | |
| | |Sentence 1 year |02-09-2022 |
| | |Set off 14 days |19-08-2022 |
| |Fine Sentence | |19-10-2022 (F4) |
| |Details | |19-12-2022 |
| | | |(F5) |
| | | |19-02-2023 |
| | | |(F6) |
| | | |19-05-2023 |
| | | |(F9) |
| | | |19-08-2023 (F10) |
| | | |19-11-2023 |
| | | |(11) |
| | | |19-05-2024 |
| | | |(F12) |
As per the records, he will spend 12 years 3 months and 8 days in prison as
on 31/07/2016.
His date of expiry of substantive sentence falls on 19-08-2022
without any remission. He has already earned 3 years 10 months 27 days
remission as on 26-05-16. He has to pay fine of Rs.18,000/- in various
cases in default he has to undergo 1 year 5 months in Jail.
Yours faithfully,
Sd/-
Director General of Prisons &
Correctional Services”
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, 10, 11 and 12 in the chart. Going by the sentence
calculation, the sentence in the 9th case would begin on 30.08.2017 and
finally, the sentence in the 12th case, after getting all benefits of set
off, would be over on 02.09.2022.
Section 427 of the Code of Criminal Procedure, 1973 is as under:-
“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.”
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.
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 powers of the Court to
direct that the subsequent sentence shall run concurrently with the
previous sentence.
In V.K.Bansal v. State of Haryana and Another[1] it was stated by this
Court:
“It is manifest from Section 427(1) that the Court has the power and the
discretion to issue a direction but in the very nature of the power so
conferred upon the Court the discretionary power shall have to be exercised
along the judicial lines and not in a mechanical, wooden or pedantic
manner. It is difficult to lay down any straitjacket approach in the
matter of exercise of such discretion by the courts. There is no cut and
dried formula for the Court to follow in the matter of issue or refusal of
a direction within the contemplation of Section 427(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.”
This Court then went on to club various crimes in respect of which
sentences were imposed upon the appellant therein in three groups; i) the
first having 12 cases, ii) the second having 2 cases and iii) the third
having a single case. This Court directed that substantive sentences within
first two groups would run inter se concurrently 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.
We have gone through the record and considered rival submissions. We do
not find anything incorrect in the assessment made by the Courts below and
in our view the orders of conviction recorded against the appellant in the
present cases are quite correct. We also do not find anything wrong in the
quantum of sentence imposed in respect of the respective crimes. However
going by the sentence calculation, the sentence imposed in respect of the
first crime started 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 eight matters and sentences imposed in respect of those crimes.
The sentence in respect of 8th crime is presently running against the
appellant and would be over on 30.08.2017.
The maximum sentence in respect of the present crimes is two years’
rigorous imprisonment. As per the record, these crimes were committed on
the same day. Having considered the matters, we deem it appropriate to
direct that the sentences imposed in each of the cases, i.e. (i) CC No.158
of 2004, (ii) CC No. 1039 of 2003, (iii) CC No. 390 of 2004 and (iv) CC No.
1168 of 2006 namely those at Sl.Nos.9 to 12 respectively as indicated in
the sentence chart in the communication dated 27.05.2016 shall run
concurrently with the sentence imposed in Crime No.8 which is currently
operative. We grant this benefit in respect of substantive sentences to
the appellant but maintain the sentences of fine and the default sentences.
If the fine as imposed is not deposited, the default sentence or sentences
will run consecutively and not concurrently.
The appeals are thus allowed in part and the orders of sentences stand
modified accordingly.
…………………….…J.
(Dipak Misra)
...…………..…….……J.
(Uday Umesh Lalit)
New Delhi,
October 03, 2016
-----------------------
[1]
(2013) 7 SCC 211
-----------------------
|C.C.No./ |Date |Date of |Crl. Appeal|Crl. |SLP |
|Offence |of |Conviction |No. |R.P. |No. |
| |occurrence |and Sentence | |No. in| |
| | |by Judicial | |the | |
| | |Magistrate | |High | |
| | |First Class | |Court | |
|158/2004 |03.06.2003 |28.06.06, |533/2012 |808/ |SLP |
|in the Court | |RI for 2 |decided on |2015 |(Crl.)|
|of Judicial | |years and |15.11.2012 | |3757/ |
|Magistrate | |fine of |by Sessions| |2016 |
|First Class | |Rs.1,000/- |Judge, | | |
|(in short | |for offence |Thrissur | | |
|JMFC), | |u/s 379 IPC | | | |
|Chavakkad/ | |and RI for 2 | | | |
|U/s 379, 414 | |years u/s 414| | | |
|r/w 34 of IPC | |ID RI for 3 | | | |
| | |months | | | |
|1039/2003 |03.06.2003 |28.06.06, |759/2011 |859/ |SLP |
|in the Court | |RI for 2 |decided on |2015 |(Crl.)|
|of JMFC, | |years and |17.09.2012 | |3759/ |
|Chavakkad/ | |fine of |by Sessions| |2016 |
|U/s 379, 414 | |Rs.1,000/- |Judge, | | |
|r/w 34 of IPC | |for offence |Thrissur | | |
| | |u/s 379 IPC | | | |
| | |and RI for 2 | | | |
| | |years for | | | |
| | |offence u/s | | | |
| | |414 IPC, ID | | | |
| | |RI for 3 | | | |
| | |months. | | | |
|390/2004 |03.06.2003 |28.06.06, |761/2011 |858/ |SLP |
|in the Court | |RI for 2 |decided on |2015 |(Crl.)|
|of JMFC, | |years and |04.08.2012 | |3758/ |
|Chavakkad/ | |fine of |by Sessions| |2016 |
|U/s 379, 414 | |Rs.1,000/- |Judge, | | |
|r/w 34 of IPC | |for offence |Thrissur | | |
| | |u/s 379 IPC | | | |
| | |and RI for 2 | | | |
| | |years u/s 414| | | |
| | |ID RI for 3 | | | |
| | |months | | | |
|1168/2006 |03.06.2003 |31.12.08, |461/2011 |670/ |SLP |
|in the Court | |RI for 1 year|decided on |2005 |(Crl.)|
|of JMFC, | |and fine of |30.09.2011 | |3756/ |
|Kunnamkulam/ | |Rs.1,000/- ID|by Sessions| |2016 |
|U/s 379 r/w 34| |SI for 6 |Judge, | | |
|of IPC | |months |Thrissur | | |
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