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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When court should not order that sentences shall run consecutively relying on single transaction rule?

The basic rule of thumb over the years has been the so called single transation 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. In this appeal, the primary challenge to the sentence is based on assumption that the two cases against the appellant, under the Gold (Control) Act, and the Customs Act pertain to the same subject matter. It is alleged that the appellant was prosecuted under the two enactments in respect of seizure of 7,000 tolas of gold. On this basis, reference is also made to Section 428 Cr. P.C. claiming set off in regard to the period of imprisonment already undergone by the appellant.

The submission, in our opinion, appears to be misconceived. The material produced by the State unmistakably indicates that the two offences for which the appellant was prosecuted are quite distinct and different. The case under the Customs Act may, to some extent, overlap the case under the Gold (Control) Act, but it is evidently on different transactions. The complaint under the Gold (Control) Act relates to possession of 7,000 tolas of PG NO 752 primary gold prohibited under s. 8 of the said Act. The complaint under the Customs Act is with regard to smuggling of Gold Worth Rs. 12.5 crores and export of silver worth Rs.

11. 5 crores. On these facts, the Courts are not unjustified in directing that the sentences could be consecutive and not concurrent.

Supreme Court of India

Mohd. Akhtar Hussain Alias ... vs Assistant Collector Of Customs ... on 31 August, 1988

Equivalent citations: 1988 AIR 2143, 1988 SCR Supl. (2) 747

BENCH:
SHETTY, K.J. (J)
OZA, G.L. (J)

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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 consecutive life sentences can be awarded to a convict guilty of multiple murders in a single trial?.

 In conclusion our answer to the question is in the
negative. We hold that while multiple sentences for
imprisonment for life can be awarded for multiple murders or
other offences punishable with imprisonment for life, the life
sentences so awarded cannot be directed to run consecutively.
Such sentences would, however, be super imposed over each
other so that any remission or commutation granted by the
competent authority in one does not ipso facto result in
remission of the sentence awarded to the prisoner for the other.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.231-233 OF 2009

MUTHURAMALINGAM & ORS. V STATE REP. BY INSP. OF POLICE 
Dated:July 19, 2016
Citation:AIR 2016 SC 3340

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