25 May 2121

The court of first instance legally obligated to specify whether the sentences would run consecutively or concurrently - Supreme Court of India

Case : Sunil Kumar @Sudhir Kumar & Anr. v. The State of Uttar Pradesh Criminal Appeal No. 526 Of 2021 (Arising from SLP (Crl.) No.3549 of 2018)

Court : Supreme Court of India

Bench : Justice Dinesh Maheshwari and Justice Aniruddha Bose

Decided on : 25 May 2121

Relevant Statutes

Article 134 and 142 of the Constitution of India

Sections 363,366,376(1) of the Indian Penal Code,1860

Sections 31, 220(1),433 and 433A of Criminal Procedural Code,1973

Brief Facts and Procedural History

1. Section 366 and 363 of the Indian Penal Code was filed against the accused based on the complaint of the Complainant’s daughter who had one to school and not returned. In the course of the investigation, the victim girl was recovered and, ultimately, the charge sheet was filed against the appellants for offences under Sections 363, 366 and 376 Indian Penal Code, 1860.

2. The Sessions trial court convicted them under the above-mentioned offences. The trial court sentences the appellants for rigorous imprisonment for a term of 5 years with a fine of Rs. 2,000/- and in default, further imprisonment for 6 months for the offence under Section 363 Indian Penal Code,1860; rigorous imprisonment for a term of 7 years with a fine of Rs. 3,000/- and in default, further imprisonment for 1 year for the offence under Section 366 Indian Penal Code,1860; and rigorous imprisonment for a term of 10 years with a fine of Rs. 5,000/- and in default, further imprisonment for 1½ years for the offence under Section 376(1) Indian Penal Code,1860.

3. They had already undergone 13 years and 2 months of imprisonment. The trial court failed to specify if the punishments would consecutively or concurrently and if consecutively, the Trial Court did not specify the order in which one punishment of imprisonment was to commence after expiration of the other. Therefore, Appellant no.1 moved to the High Court and the High Court provided for the modification of default stipulations in converse order i.e., for offences under Sections 376(1), 366 and 363 IPC respectively.

The Issue of the Case

Whether the punishments of appellants, who convicted under sections 363, 366 and 376(1) of the Indian Penal Code, 1860 and had already undergone 13 years and 2 months of imprisonment, would run concurrently or consecutively?

The Observations of the Court

1. The Honourable Supreme Court observed that section 31(1) Criminal Procedure Code,1973 completely vests discretion with the court to order the sentences for 2 or more offences at one trial to run concurrently having regard to the nature of offences and the surrounding factors. Even though it cannot be said that consecutive running is the normal rule but, it is also not laid down that multiple sentences must run concurrently.

2. Further, the Honourable Supreme Court said that “The court of the first instance has a legal obligation to specify whether the sentences would run consecutively or concurrently in case of multiple sentences.  In the cases where the court specifies or decided on the consecutive running of the sentence, it is obligated to state the sequence in which they are to be executed”.

3. Relying upon the decisions of Muthuramalingam & Ors. v. State: (2016) 8 SCC 313 & O.M. Cherian alias Thankachan v. State of Kerala & Ors.: (2015) 2 SCC 501 read with Section 31(1) of Criminal Procedure Code,1860 the court noted that on the omission to state that the sentences would run consecutively it would not lead to the concurrent running of sentences.

4. The Honourable Supreme Court discussed the principle of “single transaction” which cannot be invoked due to the omission of the court since the facts and offences under which the appellants /accused are charged differ from case to case.

5. The Honourable Supreme Court concluded that “It needs hardly an emphasis that any omission to carry out this obligation by the Court of the first instance causes unnecessary and avoidable prejudice to the parties, be it the accused or be it the prosecution.”

The Decision Held by the Court

1. In exercise of powers under Article 142 of the Constitution of India,  the Honorable Supreme court held that in view of the facts of the case and section 31(2) Criminal Procedure Code,1973 the maximum period of imprisonment to be served by appellants shall be 14 years and not beyond.

2. The requirement of payment of fine and the default stipulations, as applicable to the appellant No.1 in terms of the order of the High Court and to the appellant No.2 in terms of the order of the Trial Court, shall remain intact.

3. The appeal is partly allowed.

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