Kerala HC: Direction to run sentence concurrently in a criminal case can be given only by the Court imposing the subsequent sentence of imprisonment

“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.

…..............................................”

In order to attract the application of Section 427 of the Code, the

following conditions have to be satisfied:

1. A person already undergoing sentence of

imprisonment stands convicted;

2. While undergoing such sentence such a person is

subsequently convicted and awarded the sentence of

imprisonment including imprisonment for life;

3. Such imprisonment of rigorous imprisonment for

life shall commence at the expiration of the

imprisonment to which he has been previously

sentenced; and,

4. The court directs that subsequent sentence shall run

concurrently with such previous sentence.

12. In other words, in order to attract Section 427(1) of the

Code, when a person already undergoing the sentence of

imprisonment is sentenced on a subsequent conviction to

imprisonment or imprisonment for life, then the second sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that a subsequent sentence shall run concurrently with such previous sentence.

14. It is also trite that the benefit under Section 427 of the

Code can be conferred only by the court dealing with the subsequent

case. It has also been held that the basic rule of thumb over the years

has been the so-called single transaction rule for concurrent

sentences. The Hon'ble Supreme Court in Mohd. Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of Customs

(Prevention) Ahmedabad & Ors. (AIR 1988 SC 2143) held that

Section 427 of the Code 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 subsequent case is to run. It is also apposite to quote the following passage from the 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

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.”

15. That means, whether the sentences shall run concurrently

or consecutively can be decided only by the court deciding the latter case and not the former. 

18. Moreover, as the very provision suggests, the rule is

always that the sentences should run one after the other and the rule of concurrency is the exception. As held by the Apex Court, the benefit under Section 427 cannot be conferred for transactions which are unrelated. In such cases, the sentences should run consecutively.

20. To sum up, granting of prayer for concurrency depends on

facts and circumstances of each case and the benefit under Section 427 of the Code can be claimed only before the Court trying the subsequent offences. Direction to run concurrently can be given only in appropriate cases by the Court imposing subsequent sentence of imprisonment; the appellate court dealing with subsequent conviction also can exercise the jurisdiction.  To put it in other words,seeking such a relief from the court dealing with the first  conviction is totally out of place.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

 MR. JUSTICE K.HARIPAL

Dated: 10TH DAY OF JULY 2020 

CRL.A.No. 992 OF 2013

MUSHTHAFA  MUHAMMED, Vs THE SUB INSPECTOR OF POLICE

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Whether court can direct different sentences passed in different cases to run concurrently?

In the instant case, the learned Magistrate has not at all considered the exercise of his power under Section 427(1) even though, as already observed by us, the facts and circumstances of the case required him to do so. To aggravate the situation, the learned Additional Sessions Judge observed that there was no provision in the Code of Criminal Procedure permitting different sentences passed in different cases to run concurrently. This only shows non-application of mind as well as ignorance of law on the part of both the Courts below which has resulted in committing of a grave error of law writ large on the face of the record further leading to miscarriage of justice in the present case. That also shows failure to perform a public duty.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 1437 of 2013

Decided On: 22.07.2013

Abidkhan  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.C. Dharmadhikari and S.B. Shukre, JJ.

 Citation: 2014 ALL Mr. (Cri.) 1719

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Bombay high court Guidelines to judicial officers regarding sentencing of accused convicted in other offences

It is true that Bhandara Court and Tumsar may or may not be aware of cases pending in two different Courts. But, it is certain that both these Courts are fully aware of cases dealt with by them. Can we say that these two courts are unaware about legal provisions contained in section 427 of Cr.P.C. These two Courts have not given them the benefit of concurrent theory of sentences. These two Courts are fully aware about the provisions of Probation of Offenders Act and they have denied the benefit to the petitioners.

16. Ultimately, the Judicial Officers dealing with the case is also having human element on it. So, while convicting the petitioners, they must be having "repetitive tendency of these petitioners while committing these offences" in their mind. They were fully justified in denying them benefits of concurrent theory. The theory of deterrence must have weighed with their mind. But what we feel is that the trial Courts are unaware of these provisions of law. We say so because there is no discussion on this issue. Judge may consciously deny benefit. But, it must be reflected from the judgment. In case of Abidkhan, there was direction to place the matter before Registrar General. In order to sensitize the Judges in the State of Maharashtra, we feel some more needs to be done. Hence, we intend to direct the Registrar (Judicial) to circulate this judgment amongst all Judges in State of Maharashtra. We hope the Judges of trial Court and the appellate Court will consider the provisions of Section 427 of Cr.P.C. while dealing with the issue of sentence. Ultimately, it is the discretion of the concerned Judge whether to grant him benefit or not. It depends upon facts of each case. But it should not happen that due to ignorance of this provision of law, a rightful convict may be denied benefit of this provision of law.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 1036 of 2018

Decided On: 15.02.2019

Akash Rashtrapal Deshpande  Vs. State of Maharashtra 

Hon'ble Judges/Coram:

S.B. Shukre and S.M. Modak, JJ.

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Whether Default Sentences, Inter Se, Can Be Directed To Run Concurrently?

 The principle laid down by the Hon’ble Apex
Court in the decisions cited supra makes it crystal clear that
imposition of the term of imprisonment in default of payment
of fine is not a sentence and it is a penalty which a person
incurs on account of non-payment of fine. It is also made clear
that if such default sentence is imposed, undoubtedly, an
offender must undergo unless it is modified or varied in part or
whole in the judicial proceedings. Therefore, there is no power
for the Court to order the default sentences to run concurrently.
The Hon’ble Apex Court also made it clear that when such a
default sentence is imposed, a person is required to undergo
imprisonment either because he is unable to pay the amount of
fine or refuses to pay such amount.”
The conclusion regarding concurrent running of default sentence was
as under:
“18. It is relevant to state that there are provisions under
the code, as pointed out earlier, to order the substantive
sentences to run concurrently and the legislature specifically
excluded such power to the Court in respect of ordering the
default sentences to run concurrently. The Court cannot add or
substitute any additional words to any particular provision of
the Code. It is not for the Court to take up the work of
legislation and the Court can only apply the provision contained
under the Code as it is. It is well-settled in a catena of decisions
that the term of imprisonment in default of payment of fine
cannot be deemed to be a sentence, but a penalty which is
incurred on account of non-payment of fine.”
15. In the circumstances, we reject the submission regarding concurrent
running of default sentences, as in our considered view default sentences,
inter se, cannot be directed to run concurrently. 
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1209 OF 2018

(Diary No.33034 of 2017)

Sharad Hiru Kolambe Vs State of Maharashtra 

Dated:September 20, 2018
Uday Umesh Lalit, J.
Citation:AIR 2018 SC 4595,(2018)18 SCC 718

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Whether sentence imposed on accused undergoing life imprisonment shall run concurrently?

It is undisputed that on 6th February, 2010 when the judgment
is delivered in four cases in which the appellant is tried, the appellant was
undergoing life imprisonment as per the judgment delivered in Sessions Trial
No. 199 of 1998 and maintained by this Court in Criminal Appeal No. 89 of
2003. Considering the provisions of Section 427(2) of the Code of Criminal
Procedure  and the proposition laid down in the judgment given in the case
of  Rambhau Pandurang Wankhade, I am of the view that the appellant is
entitled for the benefit of Section 427(2) of the Code of Criminal Procedure.

The learned Additional Sessions Judge has committed an error by not giving
benefit of Section 427(2) of the Code of Criminal Procedure to the appellant accused.
  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 355  OF 2010

Mahendra S/o. Digamber Deshmukh,

  V
 State of Maharashtra, 

              CORAM : Z.A.HAQ, J.
              DATED   : APRIL 05, 2016.
Citation:2016 ALLMR(CRI)4748

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