Tags Theft

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   |      |      |