NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.    208          OF 2020 (Arising out of SLP(Crl.) No.4201 of 2019)

VICKY @ VIKAS                                              ...Appellant

VERSUS

STATE (GOVT. OF NCT OF DELHI)                    …Respondent

J U D G M E N T

R. BANUMATHI, J.

Leave granted.

2. This  appeal  has  been  filed  by  the  appellant  against  the

impugned judgment dated 20.05.2016 passed by the High Court of

Judicature  at  Delhi  in  Criminal  Appeal  No.1496 of  2013,  whereby

while dismissing the appeal filed by the appellant, the High Court also

dismissed his application to direct sentences awarded to him to run

concurrently.

3. Case of the prosecution in brief is that on 28.04.2011, at about

10:25  PM,  the  appellant  along  with  co-accused  Yamin  @  Sohail

committed  robbery  upon  the  complainant  Israr  and  took  away

Rs.2700/- and the complainant’s mobile phone by inflicting injuries on

him with a knife. FIR No.67/2011 was registered against the accused

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for the occurrence on 28.04.2011 at 10.25 PM. After completion of

investigation, charge-sheet was filed against the accused.  In the trial,

charges were framed against the appellant and the co-accused under

Sections 392, 394, 397 IPC read with Section 34 IPC. The appellant

pleaded not guilty and claimed trial.  

4. Based on the evidence adduced by the prosecution, the trial

court convicted the appellant under Sections 392 and 394 IPC while

acquitting him of the charge under Section 397 IPC.  The trial court

sentenced  the  appellant  to  rigorous  imprisonment  for  a  period  of

seven years and a fine of Rs.10,000/- with default sentence of one

month in case of non-payment of fine and clarified that this sentence

will run consecutively to the sentence imposed on the appellant in FIR

No.64/2011 under Sections 392, 397, 411 IPC read with Section 34

IPC.

5. In appeal, vide the impugned judgment, the High Court opined

that  the  conviction  recorded  by  the  trial  court  is  based  upon  fair

appraisal of evidence and warrants no interference. As to the prayer

of  the  appellant  directing  sentences  to  run  concurrently,  the  High

Court  observed  that  the  appellant  is  involved  in  sixteen  criminal

cases, he is a habitual hard core criminal and in the instant case, not

only was the victim robbed of valuable articles but also inflicted with

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grievous injuries on his body. The High Court thus rejected the prayer

that both the sentences in FIR No.64/2011 and FIR No.67/2011 to run

concurrently.

6. By order dated 26.04.2019, we had already held that we are not

inclined to interfere with the verdict of conviction of the appellant and

also the quantum of sentence imposed upon him. The instant appeal

is confined to the appellant’s prayer seeking concurrent  running of

sentences imposed upon him.

7. The  appellant  faced  trial  in  various  cases  and  has  been

convicted  in  number  of  cases.   Mr.  Anish  Kumar  Gupta,  learned

counsel appearing for the appellant-accused has collected the details

from the Assistant Superintendent, Central Jail-13, Mandoli.  By order

dated 13.12.2019, we have called for details of the cases pertaining

to the appellant from the Director General (Prison).  Accordingly, the

Superintendent,  Central  Jail  No.13  has  sent  the  status  report

containing the details of the cases in which the appellant is convicted

and the sentence of imprisonment imposed upon him and the period

of sentence undergone by him.

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Case No. Details of Court Date of

Conviction

Conviction and Sentence

Sentence undergone as

well as pending and in which

cases FIR No.64/2011 PS  –  Bhalswa Dairy

ASJ,  Rohini Courts, Delhi  Date of conviction - 02.06.2012

Section 394/397 IPC  Sentenced to R.I. for 10 years + Rs.10,000/- fine

Sentence completed (Sentence  in default  of  fine  is remaining)

FIR No.67/2011 SC No.58/2011

ASJ,  Rohini Courts, Delhi  Date of conviction – 28.07.2012

Section 392/394 IPC   Sentence  to  R.I.  for  7 years + Rs.10,000/- fine in default for one month  

Currently  serving sentence. As  of  11.12.2019, he  has  undergone 01  year  04 months  and  28 days. During trial, he was inside  for  01  year 02 months and 17 days  from 10.05.2011  to 27.07.2012.

FIR No.263/2009 PS – Janakpuri

CMM,  Tis  Hazari Courts, Delhi  Date of conviction – 09.09.2013

Section 394 IPC Sentenced to  R.I.  for  4 years

Sentence  will commence  after completion  of sentence  in  case FIR No.67/2011

FIR No.601/2007 PS  –  Model Town

MM,  Rohini Courts, Delhi

Section  353/365/506 IPC  Sentence  to  the  period already undergone

Convict was inside from 04.12.2013 to 16.09.2014.

FIR No.234/2012 PS  –  Subzi Mandi

MM,  Tis  Hazari Courts, Delhi

Section  20/61/85  of NDPS Act Sentence  to  the  period already undergone

Convict was inside from 04.12.2013 to 15.09.2015.

8. As per the Status Report filed by the DGP on 16.01.2020, the

appellant  is  presently  undergoing rigorous imprisonment  for  seven

years awarded to him in the case in FIR No.67/2011. As seen from

the above,  as  on 11.12.2019,  the appellant  has undergone actual

sentence  of  01  year  04  months  and  28  days  and  has  earned

remission of 6 days. During trial of the case in FIR No.67/2011, the

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appellant was in custody for 01 year 02 months and 17 days from

10.05.2011 to 27.07.2012. It has been stated that the sentence in the

case  in  FIR  No.67/2011  started  w.e.f.  02.10.2019  after  expiry  of

previous sentence of 10 years’ rigorous imprisonment in the case in

FIR No.64/2011. This sentence of imprisonment of ten years in the

case in FIR No.64/2011 was completed on 01.10.2019.  In the case in

FIR No.263/2009, the appellant is also convicted and sentenced to 4

years’ rigorous imprisonment under Section 394 IPC vide order dated

09.09.2013 in the case in FIR No. 263/2019. This sentence would

commence after completion of sentence running in the case in FIR

No. 67/2011. Further on 16.09.2014, the appellant was convicted in

the case in FIR No.601/2007 under Sections 353, 365 and 506 IPC.

On 15.09.2015, he was convicted under Sections 20, 61 and 85 of

NDPS Act in the case in FIR No. 234/2012. However as noted above,

in both these cases – FIR No.601/2007 and FIR No.234/2012, he was

sentenced to the period already undergone, i.e. judicial custody from

04.12.2013 till the date of decision in these cases.   

9. The point falling for consideration is whether the sentence of

imprisonment in the cases in FIR No.64/2011, FIR No.67/2011 and

FIR No.263/2009  are  to  be  ordered  to  run  concurrently.   We  are

conscious  that  the  case  in  FIR  No.263/2009  is  not  before  us.

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However, considering the facts and circumstances of the case and

the family background of the appellant and with a view to give quietus

to the matter, we have considered the case in FIR No.263/2009 also.

10. Section 427 Crl.P.C. deals with the situations where an offender

who is already undergoing a sentence of imprisonment is sentenced

to imprisonment on a subsequent conviction or imprisonment for life.

Section  427  Crl.P.C.  provides  that  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. Section 427 Crl.P.C. reads 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

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imprisonment for life, the subsequent sentence shall run concurrently with

such previous sentence.”

11. We may refer to the decision of the Supreme Court in  Mohd.

Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of

Customs (Prevention), Ahmedabad and Another  (1988) 4 SCC 183,

wherein the Supreme Court recognised the basic rule of convictions

arising out of a single transaction justifying concurrent running of the

sentences. In Mohd. Akhtar Hussain, it was held as under:-

“10. The basic rule of thumb over the years has 7been 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.

……….

12. 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 7000 tolas of primary gold prohibited under Section 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

should be consecutive and not concurrent.”

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12. After referring to Mohd. Akhtar Hussain and other cases, in V.K.

Bansal  v.  State  of  Haryana  and  Another  (2013)  7  SCC  211,  the

Supreme  Court  held  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 may have been filed. In V.K. Bansal, it was held as under:-

“14. We may at this stage refer to the decision of this Court  in  Mohd.

Akhtar Hussain v.  Collector of Customs  (1988) 4 SCC 183 in which this

Court  recognised  the  basic  rule  of  convictions  arising  out  of  a  single

transaction justifying concurrent running of the sentences. ….”

15. In  Madan  Lal  case  (2009)  5  SCC 238  this  Court  relied  upon  the

decision  in  Akhtar  Hussain  case  (1988)  4  SCC 183  and  affirmed  the

direction of the High Court for the sentences to run concurrently. That too

was a case under  Section 138 of  the Negotiable Instruments  Act.  The

State  was  aggrieved  of  the  direction  that  the  sentences  shall  run

concurrently and had appealed to this Court against the same. This Court,

however, declined interference with the order passed by the High Court

and upheld the direction issued by the High Court.

16. 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.”

13. In  V.K. Bansal, the appellant-accused was facing fifteen cases

and the Supreme Court has grouped fifteen cases into three different

groups:- (i) the first having twelve cases relating to advancement of

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loan/banking  facility  to  M/s  Arawali  Tubes  Ltd.  acting  through  the

appellant  thereon  as  Director;  (ii)  the  second  having  two  cases

relating to advancement of loan to the appellant M/s Arawali Alloys

Ltd.  acting through the appellant  as  its  Director;  and (iii)  the third

having a single case qua the criminal complaint by the State Bank of

Patiala. The Court directed that the substantive sentences within first

two  groups  would  run  inter-se  concurrently.   The  Supreme  Court

directed that the substantive sentences in first two groups and that in

respect of the case in the third group would run consecutively.

14. Following the decision in  V.K.  Bansal, in  Benson v.  State of

Kerala  (2016)  10  SCC 307,  the  Supreme  Court  directed  that  the

sentences imposed in each of the cases shall run concurrently with

the  sentence  imposed  in  Crime  No.8  which  was  then  currently

operative.  However,  the  Court  held  that  the  benefit  of  “concurrent

running  of  sentences”  is  granted  only  with  respect  of  substantive

sentences; but the sentences of fine and default sentences shall not

be affected by the direction.  The Supreme Court observed that the

provisions of Section 427 Crl.P.C. do not permit a direction for the

concurrent running of the default sentence for non-payment of fine.  

15. Further, in the case of  Anil Kumar v. State of Punjab (2017) 5

SCC 53, it was held by this court that “in terms of sub-section (1) of

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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.  Only  in  appropriate  cases,  considering  the

facts of the case, the court can make the sentence run concurrently

with an earlier sentence imposed. The investiture of such discretion,

presupposes that such discretion be exercised by the court on sound

judicial principles and not in a mechanical manner. Whether or not the

discretion is to be exercised in directing sentences to run concurrently

would depend upon the nature of the offence/offences and the facts

and circumstances of each case.”

16. The point falling for consideration is whether the case of the

appellant  is a fit  case for  exercising the discretion in directing the

sentence of  imprisonment to run concurrently with the sentence of

imprisonment  imposed  in  the  earlier  case  in  FIR  No.64/2011.  Of

course, FIR No.64/2011, FIR No.67/2011 and FIR No.263/2009 relate

to different transactions.  Since the appellant was already undergoing

imprisonment in FIR No.64/2011, in terms of  Section 427 Crl.P.C.,

subsequent  sentences shall  run consecutively  until  and unless the

court specifically directs that they shall run concurrently.

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17. Coming  to  the  facts  of  the  instant  case,  we  find  that  the

appellant is a young man with roots in his family.  The appellant has

already undergone 10 years of  imprisonment  for  conviction in  FIR

No.64/2011. The appellant is currently undergoing imprisonment for

conviction  in  FIR  No.67/2011  out  of  which  he  has  already

undergone 01 year 06 months and 16 days as of 29.01.2020.  As

per  status  report  of  the  DGP  (Prison),  during  the  trial  in  FIR

No.67/2011, the appellant was in custody for 01 year 02 months and

17  days  i.e.  with  effect  from  10.05.2011  to  27.07.2012.   If  the

appellant  is  to  undergo the sentences consecutively,  the appellant

has  to  undergo  another  about  five  years  plus  four  years  of

imprisonment for the conviction in FIR No.263/2009.

18. Pursuant to the order dated 13.12.2019, the Probation Officer,

Department of Social Welfare, Govt.  of NCT of Delhi  had sent the

report dated 10.01.2020 stating the family background and also that

there is ample scope of improvement in the behaviour of the appellant

and that he may be given a chance for reformation and reintegration

with  the  family  and  the  society.   As  per  the  report  filed  by  the

Probation officer dated 10.01.2020, on visiting the residential address

of the appellant, it was found that his family is very poor and residing

in a 50 yard house for the last 20 years. The father of the appellant is

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58 years old, having ill health and the only bread winner in the family,

was working as carpenter. The mother of the appellant was suffering

from cancer  and  was  not  able  to  take  treatment  due  to  the  poor

economic condition.  The father  of  the appellant  submitted that  the

appellant was helping in his work before conviction. The elder sister

of the appellant is married, but since the last one and a half year, she

has been living in her maternal house due to domestic violence in her

in-laws’ house. On enquiring from neighbours, they reported in favour

of the appellant and his family. The family of the appellant expressed

positive attitude to be reunited with the appellant and desired to live a

normal social life. The appellant has full acceptance of his family and

the appellant has also shown keen interest and willingness to re-unite

with them.   

19. Considering the report  of  the Probation Officer,  illness of  the

mother  of  the  appellant,  his  family  background,  facts  and

circumstances of the case and in the interest of justice, in our view,

this is a fit case for exercising discretion in directing the sentence of

imprisonment  to run concurrently.   Since the appellant  has a poor

economic background, fine amount of Rs.10,000/- imposed on him

each in  FIR  No.67/2011  and  FIR  No.263/2009  are  set  aside  and

therefore,  the  appellant  need  not  to  undergo  default  sentence  of

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imprisonment.   This  order  to  run  the  sentence  of  imprisonment

concurrently has been made in the peculiar facts and circumstances

of the case and the illness of the appellant’s mother and hence, the

same may not be quoted as precedent in other cases.

20. In the result, the sentence of imprisonment imposed upon the

appellant in FIR No.64/2011, FIR No.67/2011 and FIR No.263/2009

are  ordered  to  run  concurrently.   The  fine  amount  of  Rs.10,000/-

imposed  on  the  appellant  each  in  FIR  No.67/2011  and  FIR

No.263/2009 are set aside and therefore, the appellant need not to

undergo  default  sentence  of  imprisonment.   The  appellant  has

already  undergone  rigorous  imprisonment  for  ten  years  in  FIR

No.64/2011 which is  ordered  to  run concurrently  with  sentence of

imprisonment  in  FIR  No.67/2011  and  also  the  sentence  of

imprisonment  in  FIR No.263/2009.  The  appellant  is  ordered to  be

released forthwith. The appeal is, accordingly, disposed of.

………………………..J.                                                                           [R. BANUMATHI]

………………………..J.                                                                   [A.S. BOPANNA]

New Delhi; January 31, 2020.

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