Benson v. State Of Kerala

Judgment

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 958of2016. From the Judgment and Order dated 16.09.2015 of the High Court ofKerala at Ernakulam in Criminal Appeal No. 808 of2015

WITH

Criminal Appeal Nos. 957, 959 & 960 of2016. Ranjith B. Marar, Ms. Lakshmi N. Kaimal and T. K. Babu, Advs. for the Appellant. G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms. Beena Prakash, Manu Srinath and Ramesh Babu M. R., Advs. for the Respondent.

The Judgment of the Court was delivered by UDAY UMESH LALIT, J. I. Leave granted. These appeals . G 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) 859of2015 on 16.09.2015, (iii) 858of2015 on 14.09.2015 and (iv) 670of2015 on 17.09.2015.

2. 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 !PC, ii) CC No.1039 of2003 by Judicial Magistrate First Class, Chavakkad for offences punishable under Section 379, 414 read with 34 !PC, iii) CC No.390 of2004 by Judicial Magistrate First Class, Chavakkad for offences punishable under Section 3 79, 414 read with 34 !PC and (iv) CC No.1168 of2006 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:-

C.C.'.\'o,[ Offence

15&2004 in the Court of Judicial Magistrate First Class (in shon JMFC), Chmkkad! U/s 379, 414 ri\'' 34 ofIPC

Date Date of CrL Appeal CrL of Conviction and '.\'o. R.P. occurrence Sentence by '.\'o. in Judicial the Magistrate High First Class Court 03.06.2003 28.06.06, 5312012 80R RI for 2 years decided on and fine of 15.11.2012 Rs.1,000/- for by Sessions offence u!s 379 Judge, IPC and RI for 2 Thrissur years u/s 414 ID RI for 3months

SLP '.\'o.

SLP (Cr!.) 3757,'

1039;2003 03.06.2003 in the Court ofJMFC, Chavakkad/ U!s 379, 414 r;\v 34 of!PC

3902004 03.06.2003 in the Court of JMFC, Chavakkadl Uis 379, 414 r/w 34ofIPC

1168/2006 in the Court ofJMFC, Kunnamkulam! U.s 379 r/w 34 of!PC

03.06.2003

7592011 28.06.06, RI for 2 years decided on and fine of 17.09.2012 Rs.l.OOO:- for by Sessions offence u!s 379 Judge, !PC and RI for 2 Turissur years for offence u/s 414 !PC, ID RI for 3months. 7612011 28.06.06, RI for 2 years decided on and fine of 04.08.2012 Rs.1,000.'- for by Sessions offence u:s 379 Judge, !PC and RI for 2 Turissur years u.!s 414 ID RI for 3months 31.12.08, 46L201! RI for 1 year decided on and fine of 30.09.2011 Rs.1,000'- !D SI by Sessions for 6months Judge, Tiuissur

859!

SLP (Cd.) 37591

858.

SLP (CrL)

3758/

670!

SLP (Cr!.) 3756/

3. These matters came up on 22.04.20 I 6 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:-

[2016) 8 S.C.R.

"PRISONS HEADQUARTERS,

THIRUVANANTHAPURAM Dated: 27.05.2016 WPl-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 Coui1 case - SLP (Crl) CRLMP No.6727/2016/Benson vs. State of Kerala - reg. Ref: Lr. No.38749/81/2016/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

No.

Case No., Court and Warrant Date cc 613i03

JFCM I, Thrissur Wdt.20-11-2003 cc 533;04 JFMC II, Thrissur Wdt.8-6-2005 cc 529!04 JFMC II, Thrissur wdt.18-6-2005

Sentence Details Sentenced to undergo RI for3 years uis 379 IPC Set off97 days. Atlarge bail period -153 days. Sentenced to undergo RI for 2 years ufs 392 IPC Set off 521 days. Sentenced to undergo RI for 3 years ufs 392 IPC, Set off 493 days

CC 1270113 JFCM Changanassery Wdt.18-6-2005

CC 1115103 JFCM Irinjalakk11da Wdt. 4-7-2005 cc 932105 JFMC Irinjalak11da Wdt.4-7-2005 cc 171105 ADSJ Adhoc II Kanayam Wdt.25-11-2005 cc 274,06

JFCM Kodwigallur Wdt.30-9-2008 cc 158/04 JF CM Chava.kkad wdt.28-6-2006

CC 1039'03 JFCM Chavakkad \Vdt. 28-6-2006 cc 39004 JFCM Chavakkad Wdr.28-6-2006 cc 1168,06 JFCM Kunnamangalam Wdt.31-12-2008

Sentenced to undergo RI for 2 years +fine Rs.50001- id SI for 1month u/s 380 IPC, RI for 2 years +fine Rs.5 ,000!- L'd SI for I month uis 457 IPC (Concurrently) Set of 348 days Sentenced to undergo RI for 2 years +fine Rs.2,000/- i!d SI for 2 months u/s 379 IPC Set off 402 davs Sentenced to undergo RI for 2 years +fine Rs-2,000,- L'd SI for 2 months 11's 379 IPC Set off 465 days Sentenced to widergo RI for 5years u.s 392 !PC, RI for 3 years u/s 120(B) IPC (ConC\llrently) Set off 418 days. Sentenced to undergo SI for 3 years us 205 !PC Set off 414 days Sentenced to undergo RI for 2 years +fme Rs.1,000. - iid SI for 3 months u's 379 IPC, RI for2 years u·s 414 !PC (Concurrently) Set off347 days Seutenced to undergo RI for 2 years .,. fine Rs.1,000- i'd SI for 3 months ws 379 !PC, RI for 2 years u.'s 414 !PC (Concurrently) Ser off 240 days Sentenced to undergo RI for 2 years +fine Rs.1,000- i'd SI for 3 momhs 11s 379 IPC, RI for 2 years ws 414 !PC (Concurrently) Set off 14ldays Sentenced to undergo RI for 1year t fine Rs.1,000 Ld SI for 2months uis 379 r/w 34 !PC Set off 14 days

[20 I 6) 8 S.C.R.

S.No.

)

I

I 6 I

Sentence Calculation Case No. Sentence Calculation 1n Sentence Started 20-11-2003 cc 613/03 19-11-2006 Sentence 3 years JFCM I, Thrissur Set Off 97days 14-08-2006 At large 153 days 14-01-2007 2ui Sentence Started 14-01-2007 cc 533/04 JFCM II, Thrissur Semence 2years 14-01-2007 Set off 521 days 12-08-2009 cc 529<04 3m Sentence Started 12-08-2009 JFCM II, Thrissur Sentence 3 years 12-08-2010 Set off 49 3davs 06-04-2009 CC 1270.'13 JFCM 4± Sentence Started 06-04-2009 Changanasseiy Sentence 2 years 06-04-2011 Set off 348 days 23-04-2010 CC 115/03 JFCM 5± Sentence Started 23-04-2010 hinjalili:uda Semence 2vears 23-04-2012 Set off ~02 days lS-03-2011 cc 932'05 6&. Sentence Staned 18-03-2011 JFCM Irinjalakuda Sentence 2yms lS-03-2013 Set off 465 days 09-12-2011 SC 171/05 /t't. Sentence Started 09-12-2011 ADSJ Adhoc II, Sentence 5 years 09-12-2016 Kottayam Set off 418 days 18-10-2015 cc 27t06 Stt. Sentellce Staned 18-10-2015 JFCM Kodullgallur Sentence 3years 18-10-2018 Set off~ 14 days 30-08-2017 cc 1ss.o.i 9:: Sentence Stanrd 30-0S-~017 IF C?>I C!ma:.;kad Senteuce 2wats 30-0S-~019 17-09-2018 Set off 34 7davs .

s

'

I I I

I

[UDAY UMESH LALJT, J.]

CC 1039/03 JFCM Chavakkad cc 390/04

JFCM Chavakkad cc 1168106 JFCM Kunnamangalam Fine Sentence Details

1OU: Sentence Started Sentence 2years Set off 240 days 11 tl: Sentence Started Sentence 2 years Set off l·H days !2U: Sentence Started Sentence 1year Set off 14 days

17-9-201& 17-09-2020 21-01-2020 21-01-2020 21-01-2022 02-09-2021 02-09-2021 02-09-2022 19-08-2022 19-10-2022 (F4) 19-12-2022 (F5) 19-02-2023 (F6)

19-05-2023 (F9) 19-08-'.l023 (FlO) 19-11-2023 (11)

19-05-2024 tF12)

As per the records, he· wi II spend 12 years 3 months and 8 days in prison as on 31 /07/2016.

His date of expiry of substantive sentence falls on 19-082022 without any remission. He has already earned 3 years I 0 months 27 days remission as on 26-05-16. He has to pay fine ofRs.18,000/- in various cases in default he has to undergo I year 5 months in Jail. Yours faithfully, Sd/Director General of Prisons & Correctional Services"

(2016) 8 S.C.R.

4. 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, I 0, 11 and 12 in the chart. Going by the sentence calculation, the sentence in the 9'h case would begin on 30.08.2017 and finally, the sentence in the J 2•h case, after getting all benefits of set off, would be over on 02.09.2022.

5. Section 427 of the Code of Criminal Procedure, 1973 is as under:-

"427. Sentence on offender already sentenced for another offence. -(I) 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."

6. In terms of sub-section (I) of Section 427, ifa person already undergoing a sentence of imprisonment is sentenced on a subsequent G conviction to imprisonment, such subsequent tenn 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 1-1 powers of the Court to direct that the subsequent sentence shall run concurrently with the previous sentence.

7. In V.K.Bansal v. State of Haryww amt A11otl1er 1 it was stated by th is 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( I). 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 concun-ently 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.

8. 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 sta1ied 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

(2013) 7 sec 211 eight matters and sentences imposed in respect of those crimes. The sentence in respect of 8'h crime is presently running against the appellant and would be over on 30.08.2017.

9. 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 of2004, (ii) CC No. I 039 of2003, (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. I 0. The appeals are thus allowed in part and the orders of sentences stand modified accordingly.

Ankit Gyan

Appeals partly allowed.