Whether court can direct that default sentences can run concurrently?

 In terms of the decision taken by this Court in Sharad Hiru

Kilambe, the default sentence cannot be directed to run

concurrently. The discussion in that behalf is to be found in

paragraphs 17 and 18 of said decision which for facility are quoted

hereunder:

“17. 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.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.818-820 OF 2021

DUMYA ALIAS LAKHAN ALIAS INAMDAR Vs  STATE OF MAHARASHTRA

Dated: AUGUST 13, 2021.

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Whether the trial court is under obligation while awarding multiple sentences to specify whether they would run concurrently or consecutively?

 For what has been provided in Section 31(1) CrPC read with the

expositions of this Court, it follows that the Court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao (supra), this Court expounded on this legal obligation upon the Court of first instance in the following terms:-

“11. The expressions “concurrently” and “consecutively”

mentioned in the Code are of immense significance while

awarding punishment to the accused once he is found guilty

of any offence punishable under IPC or/and of an offence

punishable under any other Special Act arising out of one trial

or more. It is for the reason that award of former enure to the

benefit of the accused whereas award of latter is detrimental

to the accused’s interest. It is therefore, legally obligatory

upon the court of first instance while awarding sentence to

specify in clear terms in the order of conviction as to whether

sentences awarded to the accused would run “concurrently”

or they would run “consecutively”.”

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 526 OF 2021

SUNIL KUMAR @ SUDHIR KUMAR  Vs THE STATE OF UTTAR PRADESH 

Dated: MAY 25, 2021

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Whether Appellate Court and the Revisional Court may pass a direction, that sentence granted to accused to run concurrently?

 It is settled position of the law that the direction to run the sentence concurrently may be passed by the Trial Court, Appellate Court and the Revisional Court.

13. Full Bench of Kerala High Court in Mani & Anr. vs. State of Kerala, has held that "when no direction is given by the trial court that the sentences were to run concurrently, direction can be issued by the High Court under inherent powers even if the stage of exercising discretion under section 427(1) of the Code is over, in circumstances which would serve the purposes mentioned in Section 482".

IN THE HIGH COURT OF DELHI

Crl. A. 611/2018, Crl. M.A. 40714/2019 and Crl. M.B. 5926/2020

Decided On: 12.06.2020

 Pankaj Verma  Vs.   State

Hon'ble Judges/Coram:

Suresh Kait, J.

Citation: MANU/DE/1232/2020

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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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When court should direct that subsequent sentence shall run concurrently with previous sentences?

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 Court umpteen times, we can profitably refer to one of the recent pronouncements in V.K. Bansal v. State of Haryana and Anr. MANU/SC/0673/2013 : (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 same.

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.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 988-989 of 2016 (Arising out of S.L.P. (Crl.) Nos. 6226-27 of 2016)

Decided On: 28.10.2016

 Shyam Pal Vs. Dayawati Besoya and Ors.

Hon'ble Judges/Coram:

Dipak Misra and Amitava Roy, JJ.
Citation:(2016) 10 SCC 761

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Whether sentences can run concurrently if conviction relates to two different transactions?

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 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)  CA NO.253 OF 2017 “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.”

69. This instant case is one covered under Section 427 Cr.P.C. As noted earlier appellant Neera Yadav has been convicted in two different cases, one of abusing the official position in getting the plots allotted to herself and her daughters and other irregularities in making changes in the site plan and another one in abusing her position as CEO, Noida conspired with Rajiv Kumar in allotting plot to him. Having regard to the facts and circumstances of the case and considering the nature of allegations, in our view, it is not justifiable to direct concurrency of sentence. Any unprincipled exercise of judicial discretion and casual direction made regarding concurrency would go against the express provisions of the Prevention of Corruption Act, 1988 and the Criminal Procedure Code.

Supreme Court of India

Neera Yadav vs Central Bureau Of Investigation on 2 August, 2017

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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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When court should not award consecutive sentences?

 Dealing with the question of sentences of imprisonment being consecutive or concurrent, this Court in Mohd. Akhtar Hussain v. Collector of Customs MANU/SC/0290/1988 : (1988) 4 SCC 183 had evolved the rule of a single transaction giving rise to two different or more offences under two or more enactments. This Court had taken the view that if a single transaction gives rise to more than one offence under different enactments it would not be correct to award consecutive sentences. The said view of this Court has been reiterated in Manoj Alias Panu v. State of Haryana MANU/SC/1251/2013 : 2014 (1) R.C.R. (Criminal) 525 : 2014 (1) Recent Apex Judgments (R.A.J.) 197 : (2014) 2 SCC 153 (paras 14 and 15).

5. In the present case, the charge Under Section 344 Indian Penal Code is in respect of illegal confinement of 27 persons on the same day. Similar is the charge under the Bonded Labour System (Abolition) Act, 1976 and the Child Labour (Prohibition and Regulation) Act, 1986 extracted above. In such a situation, the rule laid down by this Court in Mohd. Akhtar Hussain (supra) and consistently followed thereafter would be squarely applicable.

6. Mr. R. Basant, learned Senior Counsel appearing for the victims who has also been heard in the matter has laid before this Court a recent pronouncement in O.M. Cherian Alias Thankachan v. State of Kerala and Ors. MANU/SC/1003/2014 : 2014 (4) R.C.R. (Criminal) 922 : 2014 (6) Recent Apex Judgments (R.A.J.) 297 : (2015) 2 SCC 501. We have read and considered the aforesaid decision. The ratio of law discernible from the aforesaid judgment does not, in any way, depart from the basic rule laid down in Mohd. Akhtar Hussain (supra) with regard to two or more offences committed in the course of a single act/transaction.

7. In the present case, having regard to the law evolved in Mohd. Akhtar Hussain (supra) and consistently followed we are of the view that the award of consecutive sentences by the learned courts below was not correct and is contrary to the principles laid down by this Court in Mohd. Akhtar Hussain (supra). Consequently, we interfere with the order of the High Court insofar as the imposition of consecutive sentences is concerned and direct that the accused Appellant shall suffer imprisonment for the period(s) for which he has been sentenced for the different offences concurrently and not consecutively.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1617 of 2015 (Arising out of Special Leave Petition (Criminal) No. 6942 of 2015)

Decided On: 01.12.2015

 M.S. Krishna Reddy  Vs. State of Karnataka

Hon'ble Judges/Coram:Ranjan Gogoi and Rohinton Fali Nariman, JJ.

Citation: 2016 ALL SCR (CRI)399

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Whether any sentence of imprisonment in default of fine can be made to run concurrently?

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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2387 OF 2014
(Arising out of SLP (Crl.) No. 2487/2014)

O.M. CHERIAN @ THANKACHAN Vs STATE OF KERALA & ORS.

Citation;(2015) 2 SCC501

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Whether default sentences for non-payment of fine can be ordered 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.

 In view of the aforesaid reasons, we are answering the reference to the effect that the default sentences for non-payment of fine cannot be ordered to run concurrently.

MADRAS HIGH COURT

Donatus Tony Ikwanusi vs The Investigating Officer on 30 January, 2013

CORAM

 MR . JUSTICE K.N.BASHA

MR.JUSTICE T.SUDANTHIRAM

AND

MR. JUSTICE P.DEVADASS

Citation; 2013 CR L J 1938 Madras (FB)

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