Page 1

1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 958  OF 2016 (Arising out of SLP (Criminal) No.3757 of 2016)

Benson           ….Appellant

Versus

State of Kerala  …. Respondent

With

CRIMINAL APPEAL NO.  960 OF 2016 (Arising out of SLP(Criminal) No.3759 of 2016)

CRIMINAL APPEAL NO.  959  OF 2016   (Arising out of SLP(Criminal) No.3758 of 2016)

and

CRIMINAL APPEAL NO.  957  OF 2016    (Arising out of SLP(Criminal) No.3756 of 2016)

J U D G M E N T  

Uday Umesh Lalit, J.

1. Leave granted. These appeals by Special Leave arise out of judgments

and orders passed by the High Court of Kerala in Criminal Revision Petition

Page 2

2 Nos. (i) 808 of 2015 on 16.09.2015, (ii) 859 of 2015 on 16.09.2015, (iii) 858

of 2015 on 14.09.2015 and (iv) 670 of 2015 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  IPC,  ii)  CC  No.1039  of  2003  by  Judicial  Magistrate  First  Class,

Chavakkad for  offences  punishable  under  Section 379,  414 read with 34

IPC, iii) CC No.390 of 2004 by Judicial Magistrate First Class, Chavakkad

for offences punishable under Section 379, 414 read with 34 IPC and (iv)

CC No.1168 of 2006 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:-

Page 3

3

C.C.No./  Offence

Date  of  

occurrence   

Date  of Conviction and  Sentence by  Judicial Magistrate First Class

Crl. Appeal No.

Crl. R.P.

No. in the

High Court

SLP No.

158/2004 in the  Court  of Judicial  Magistrate First Class (in short  JMFC),  Chavakkad/   U/s  379,  414 r/w 34 of IPC

03.06.2003 28.06.06, RI  for  2  years and  fine  of Rs.1,000/-  for offence u/s 379 IPC and RI for 2 years u/s 414 ID  RI  for  3 months

533/2012  decided on  15.11.2012  by Sessions  Judge,  Thrissur

808/ 2015

SLP (Crl.) 3757/ 2016

1039/2003  in the Court  of JMFC,  Chavakkad/   U/s  379,  414 r/w 34 of IPC

03.06.2003 28.06.06, RI  for  2  years and  fine  of Rs.1,000/-  for offence u/s 379 IPC and RI for 2  years  for offence u/s 414 IPC, ID RI for 3 months.

759/2011  decided on  17.09.2012  by Sessions  Judge,  Thrissur

859/ 2015

SLP (Crl.) 3759/ 2016

390/2004  in the  Court  of  JMFC,  Chavakkad/   U/s 379, 414  r/w 34 of IPC

03.06.2003 28.06.06,  RI  for  2  years and  fine  of Rs.1,000/-  for offence u/s 379 IPC and RI for 2 years u/s 414 ID  RI  for  3 months

761/2011 decided on   04.08.2012  by Sessions  Judge,  Thrissur

858/ 2015

SLP (Crl.) 3758/ 2016

1168/2006  in the Court  of JMFC,  Kunnamkulam/  U/s 379 r/w 34  of IPC

03.06.2003 31.12.08, RI  for  1  year and  fine  of Rs.1,000/-  ID SI for 6 months

461/2011  decided on   30.09.2011  by Sessions  Judge,  Thrissur

670/ 2005

SLP (Crl.) 3756/ 2016

Page 4

4 3. These  matters  came  up  on  22.04.2016  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:-

  “PRISONS HEADQUARTERS,                                             THIRUVANANTHAPURAM

                          Dated: 27.05.2016 WP1-9606/2016

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 Court  case – SLP (Crl)  CRLMP No.6727/2016/Benson vs. State of Kerala – reg.

Ref:  Lr. No.38749/B1/2016/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:

Page 5

5

Conviction Details

Sl. No.

Case No., Court and Warrant Date

Sentence Details

1 CC 613/03 JFCM I, Thrissur Wdt.20-11-2003

Sentenced to undergo RI for 3 years u/s 379 IPC Set off 97 days. At large bail period -153 days.

2 CC 533/04 JFMC II, Thrissur

Wdt.8-6-2005

Sentenced to undergo RI for 2 years u/s 392 IPC Set off 521 days.

3 CC 529/04 JFMC II, Thrissur

Wdt.18-6-2005

Sentenced to undergo RI for 3 years u/s 392 IPC, Set off 493 days

4 CC 1270/13 JFCM Changanassery Wdt.18-6-2005

Sentenced to undergo RI for 2 years + fine  Rs.5000/-  i/d SI for 1 month u/s 380 IPC, RI for 2  years + fine Rs.5,000/- i/d SI for 1 month u/s 457  IPC  (Concurrently)  Set of 348 days

5 CC 1115/03 JFCM Irinjalakkuda  Wdt. 4-7-2005

Sentenced to undergo RI for 2 years + fine  Rs.2,000/-  i/d SI for 2 months u/s 379 IPC Set off  402 days

6 CC 932/05 JFMC Irinjalakuda

Wdt.4-7-2005

Sentenced to undergo RI for 2 years + fine  Rs.2,000/-  i/d SI for 2 months u/s 379 IPC Set off 465 days

7 CC 171/05 ADSJ Adhoc II

Kottayam Wdt.25-11-2005

Sentenced to undergo RI for 5 years u/s 392 IPC, RI  for 3 years u/s 120(B) IPC (Concurrently) Set off  418 days.

8 CC 274/06 JFCM Kodungallur

Wdt.30-9-2008

Sentenced to undergo SI for 3 years u/s 205 IPC Set off 414 days

9 CC 158/04 JFCM Chavakkad

Wdt.28-6-2006

Sentenced to undergo RI for 2 years + fine  Rs.1,000/-  i/d SI for 3 months u/s 379 IPC, RI for 2  years u/s 414 IPC (Concurrently)   Set off 347 days

10 CC 1039/03 JFCM Chavakkad

Wdt. 28-6-2006

Sentenced to undergo RI for 2 years + fine  Rs.1,000/- i/d SI for 3 months u/s 379 IPC, RI for 2  years u/s 414 IPC (Concurrently) Set off 240 days

11 CC 390/04 JFCM Chavakkad

Wdt.28-6-2006

Sentenced to undergo RI for 2 years + fine  Rs.1,000/- i/d SI for 3 months u/s 379 IPC, RI for 2  years u/s 414 IPC (Concurrently) Set off 141 days

Page 6

6 12 CC 1168/06

JFCM Kunnamangalam Wdt.31-12-2008

Sentenced to undergo RI for 1 year + fine Rs.1,000  i/d SI for 2 months u/s 379 r/w 34 IPC Set off 14  days

Sentence Calculation S.  No.

Case No. Sentence Calculation

1 CC 613/03 JFCM I, Thrissur

1st Sentence Started 20-11-2003 Sentence 3 years 19-11-2006 Set Off 97 days 14-08-2006

At large 153 days 14-01-2007 2 CC 533/04

JFCM II, Thrissur 2nd Sentence Started 14-01-2007

Sentence 2 years 14-01-2007 Set off 521 days 12-08-2009

3 CC 529/04 JFCM II, Thrissur

3rd Sentence Started 12-08-2009 Sentence 3 years 12-08-2010 Set off 493 days  06-04-2009

4 CC 1270/13 JFCM Changanassery

4th Sentence Started 06-04-2009 Sentence 2 years 06-04-2011 Set off 348 days 23-04-2010

5 CC 115/03 JFCM Irinjalakkuda

5th Sentence Started 23-04-2010 Sentence  2 years 23-04-2012 Set off 402 days 18-03-2011

6 CC 932/05 JFCM Irinjalakuda

6th Sentence Started 18-03-2011 Sentence 2 years 18-03-2013 Set off 465 days 09-12-2011

7 SC 171/05 ADSJ Adhoc II,

Kottayam

7th Sentence Started 09-12-2011 Sentence 5 years 09-12-2016 Set off 418 days 18-10-2015

8 CC 274/06 JFCM Kodungallur

8th Sentence Started 18-10-2015 Sentence 3 years 18-10-2018 Set off 414 days  30-08-2017

9 CC 158/04 JFCM Chavakkad

9th Sentence Started 30-08-2017 Sentence 2 years 30-08-2019 Set off 347 days 17-09-2018

10 CC 1039/03 JFCM Chavakkad

10th Sentence Started 17-9-2018 Sentence 2 years 17-09-2020 Set off 240 days 21-01-2020

Page 7

7

11 CC 390/04 JFCM

Chavakkad

11th Sentence Started 21-01-2020 Sentence 2 years 21-01-2022 Set off 141 days 02-09-2021

12 CC 1168/06  JFCM

Kunnamangalam

12th Sentence Started 02-09-2021 Sentence 1 year 02-09-2022 Set off 14 days 19-08-2022

Fine Sentence  Details

19-10-2022 (F4) 19-12-2022

(F5) 19-02-2023

(F6) 19-05-2023

(F9) 19-08-2023 (F10)

19-11-2023 (11)

19-05-2024 (F12)

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

His  date  of  expiry  of  substantive  sentence  falls  on 19-08-2022 without any remission.   He has already earned 3 years 10 months 27 days remission as on 26-05-16.  He has to pay fine of Rs.18,000/-  in various cases in default  he has to undergo 1 year 5 months in Jail.

Yours faithfully, Sd/-

Director General of Prisons & Correctional Services”

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,  10, 11 and 12 in the chart.   Going by the

Page 8

8 sentence calculation, the sentence in the 9th case would begin on 30.08.2017

and finally, the sentence in the 12th 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.  – (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.”   

6. In  terms  of  sub-section  (1)  of  Section  427,  if  a  person  already

undergoing  a  sentence  of  imprisonment  is  sentenced  on  a  subsequent

conviction to imprisonment, such subsequent term 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

Page 9

9 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 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 Haryana and Another1 it was stated by this

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(1).  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 concurrently and the substantive sentences in first

two groups and that  in  respect  of  the case in  the third group would run

1

(2013) 7 SCC 211

Page 10

10 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 started 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 eight matters and sentences imposed in respect of

those  crimes.   The  sentence  in  respect  of  8th 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 of

2004, (ii) CC No. 1039 of 2003, (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

Page 11

11 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.

10. The appeals are thus allowed in part and the orders of sentences stand

modified accordingly.  

…………………….…J.  (Dipak Misra)

...…………..…….……J. (Uday Umesh Lalit)

New Delhi, October 03, 2016