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 consolidated complaint for dishonour of two cheques is maintainable if those cheques were issued on different dates?

It has been argued on behalf of the petitioner that a great prejudice is likely to be caused to the defence of the petitioner by such joinder of charges in one trial. This has been disagreed to the learned Counsel for respondent No. 2. I think, the learned Counsel for respondent No. 2 is right in expressing his such a disagreement. Reason being that the charge will be framed by the trial Court in such a manner as would contain two heads of offence relating to dishonour of two different cheques, and I would say that the trial Court would be well advised to do so. If this is done, the petitioner would get an ample opportunity to defend himself against the two heads of offence with which he would be charged in this case and would be in a position to prepare adequately on his defence. If it is the contention of the petitioner that the petitioner would like to advance two different kinds of defence for dishonour of these two separate cheques, even then, I do not think that any impediment in this regard would be encountered by the petitioner for the reason that the complainant would have to adduce evidence in a specific manner to prove these two different heads of offence and that will result in giving sufficient notice of allegations being made against the petitioner, which shall be enough for him to put up his different stands of defence in respect of these two separate offences. But, these two offences, as stated earlier, having been committed in one and the same transaction, would certainly require a joint trial with the aid of Section 220 of Cr.P.C., which is also a view taken in this case by the Courts below and rightly so.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 884 of 2017

Decided On: 06.02.2018

Umakant  Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.B. Shukre, J.

Citation: 2019(2) MHLJ 618

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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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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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What is basic concept of single transaction rule for concurrent sentences?

“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.”1
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.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

V.K. Bansal
Versus
State of Haryana and Ors.
Decided on;July 5, 2013

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