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Zulfiwar Ali And Another v. State Of U.P .
Judgment Summary — A.S. Srivastava, J.
Factual and Procedural Background
This appeal concerns the punishment awarded to two appellants, Zulfiwar Ali alias Ram Chander and Sayyed Tariq Masood (also recorded under several alternate names), by the Additional Sessions Judge, Dehradun, in Sessions Trial No. 39 of 1979. By the trial court's judgment dated 8-3-1982 the appellants were convicted and each was sentenced to 14 years' rigorous imprisonment (R.I.) under Section 120B, Indian Penal Code, and to another term of 14 years' R.I. under Section 3 of the Official Secrets Act; the trial court directed that the two sentences for each appellant run consecutively.
Relevant events relied on by the trial court (as recorded in the opinion): on 4-10-1971 two persons (Mohammad Tayyab alias Rajendra Singh and Mohammad Sajjad alias Mohan Lal) were arrested in Dehradun as Pakistani spies; their recorded statements under Section 164, Cr. P.C. (dated 14-10-1971 and 16-10-1971 respectively) led to the arrest of another alleged spy, Akram Ali Daudi, on 13-12-1971. Akram Ali's disclosures implicated the two appellants, leading to their arrests: Zulfiwar Ali was arrested near Aroma Hotel, Chandigarh (date recorded in the opinion as 9-2-1982) and Sayyed Tariq Masood was arrested at Royal Hotel, Hyderabad (29-1-1972). Statements of the appellants under Section 164, Cr. P.C. were recorded (dates in the opinion: 26-2-1972 and 9-2-1972). After investigation a charge-sheet was filed against the five persons; during trial two co-accused were repatriated to Pakistan and one co-accused released on bail absconded; the trial proceeded only against the two appellants who were convicted as above.
Legal Issues Presented
- Whether the trial court erred in directing that the two 14-year sentences (under Section 120B IPC and Section 3 Official Secrets Act) should run consecutively so that the aggregate sentence becomes 28 years, in light of proviso (a) to Section 31(2), Cr. P.C. which prescribes a limit of 14 years.
- Whether the maximum sentences awarded for the offences were excessive or otherwise inappropriate given the facts proved.
- Whether, on the facts (including whether the offences were based on the same facts), the sentences should have been made concurrent rather than consecutive.
Arguments of the Parties
Appellants' Arguments (as presented in the opinion)
- The proviso (a) to Section 31(2), Cr. P.C. precludes an aggregate sentence exceeding 14 years in a single trial; accordingly the trial court's order which produced an aggregate of 28 years is illegal.
- The offences proved against the appellants did not warrant maximum sentences on each count; in any event, the sentences should not have been directed to run consecutively to produce an aggregate exceeding 14 years (effectively exceeding life imprisonment as argued by counsel).
Respondent / State's Arguments (as presented in the opinion)
- The nature of the offences (espionage and activities jeopardising state security) justifies the maximum sentences awarded; no sentence is excessive for such conduct.
- The trial judge properly followed the normal rule that sentences for multiple offences are consecutive; the placement of proviso (a) in sub-section (2) does not, in the State's view, negate the normal rule in sub-section (1) permitting consecutive sentencing.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sheo Narain v. Emperor, (1910) 11 Cri. LJ 679 | Interpreting the old Code proviso (S.35) to prohibit giving consecutive sentences in one trial beyond 14 years; the proviso aims to limit aggregate consecutive sentences in a single trial to 14 years. | The court relied on this decision to support the proposition that the proviso to the present Section 31(2), Cr. P.C. (in pari materia with the old Code provision) similarly prohibits aggregate consecutive sentences exceeding 14 years in one trial. |
| Nga Mya Gai (a) E. Maung v. Emperor, AIR 1937 Rangoon 391; (1938 (39) Cri. LJ 28) | Same view as Sheo Narain — that an aggregate consecutive sentence in one trial cannot lawfully exceed the statutory 14-year ceiling under the comparable old Code provision. | Used as additional authority endorsing the interpretation that the proviso limits aggregate consecutive sentences to 14 years and thus supports setting aside aggregate sentences in excess of that limit. |
Court's Reasoning and Analysis
The court proceeded in several discrete steps, applying statutory text, legislative scheme and precedent to the facts:
- Recognition of gravity: The court acknowledged the seriousness of the offences and accepted the trial judge's factual findings on culpability. It agreed that the crime was "the gravest of grave offences" and that the offenders merited the maximum penalty provided by law for the offences proved.
- Statutory text — S.31(1), Cr. P.C.: The court quoted S.31(1) (as contained in the opinion) to show that the default rule is that multiple punishments commence one after the other (i.e., consecutive), but that the statute expressly permits the court to direct that punishments shall run concurrently ("Unless the court directs that such punishments shall run concurrently"). The court emphasized that these words show the statute contemplates concurrent sentences in appropriate cases.
- Proviso (a) to S.31(2), Cr. P.C.: The court examined proviso (a) to sub-section (2) which states "in no case shall such person be sentenced to imprisonment for a longer period than fourteen years." It treated this proviso as prescribing a statutory ceiling on the aggregate of consecutive sentences imposed in one trial.
- Historical and precedential support: Observing that the proviso is in pari materia with S.35(a) of the old Code, the court cited commentary and prior decisions (Sheo Narain and Nga Mya Gai) that interpreted the old provision to mean that consecutive sentences imposed in one trial cannot lawfully aggregate to more than 14 years. The court adopted that view for the present proviso.
- Interaction of sub-sections (1) and (2): The court rejected the State's contention that because proviso (a) is appended to sub-section (2) it does not govern sub-section (1). It reasoned that sub-section (1) establishes the normal rule (consecutive) but contemplates concurrency "in appropriate cases." Sub-section (2) expressly deals with the case of consecutive sentences and, by its proviso, limits the aggregate consecutive sentence to 14 years. Thus, the proviso applies to cases in which the court orders consecutive sentences and acts as a statutory constraint on the aggregate term.
- Application to present facts: The court concluded that the trial court's order producing an aggregate of 28 years violated proviso (a) to S.31(2) Cr. P.C., and therefore could not be sustained. Further, even if that proviso were put to one side, the court held that concurrent sentences would be appropriate because the two convictions were based on essentially the same facts — the prosecution had to prove the same factual matrix for both offences — and where offences are based on the same facts it is often just and appropriate to make sentences concurrent.
- Remedy: Accordingly, the court maintained the convictions and the individual sentences on each count (14 years R.I. under Section 3 Official Secrets Act and 14 years R.I. under Section 120B IPC) but modified the order so that the sentences shall run concurrently rather than consecutively.
Holding and Implications
Holding: The court maintained the convictions under Section 3 of the Official Secrets Act and Section 120-B, IPC, but it modified the sentences so that the two 14-year terms for each appellant shall run concurrently rather than consecutively. With that modification, the appeal was dismissed.
Immediate consequences for the parties: The direct effect of the court's modification is that each appellant's effective period of imprisonment is the term of one 14-year sentence (the two 14-year sentences to run concurrently), instead of an aggregate of 28 years produced by the trial court's consecutive order. The convictions remain undisturbed.
Broader implications: The opinion does not announce any new legal principle beyond its application and reaffirmation of the established interpretation that proviso (a) to Section 31(2), Cr. P.C. limits the aggregate of consecutive sentences in a single trial to 14 years and that concurrent sentences are available where appropriate (for example, where multiple convictions are founded on the same facts). The court relied on earlier authorities and commentary in arriving at this conclusion.
Disposition
Appeal dismissed subject to the modification that the sentences imposed on each appellant shall run concurrently.
A.S Srivastava, J.:— Only a short question has been raised in this appeal which relates to the punishment awarded to two appellants viz. Zulfiwar Ali alias Ram Chander and Sayyed Tariq Masood alias Ramesh Chand, alias Aijaj Ahmad, alias Chet Ram, alias Khokar, alias Mohd. Iqbal by the Additional Sessions Judge, Dehradun, in Sessions Trial No. 39 of 1979. By this judgment dated 8-3-1982 the learned Sessions Judge has convicted and sentenced each of the appellants to 14 years, R.I under S. 120B, I.P.C.and to another term of 14 years' R.I under S. 3 of the Official Secrets Act he has further directed that both the sentences of the appellants shall run consecutively.
2. The facts relevant for the purposes of the disposal of the above question may be stated as under:
3. On 4-10-1971 two persons, namely, Mohammad Tayyab alias Rajendra Singh and Mohammad Sajjad alias Mohan Lal were arrested at Dehradun as Pakistani Spies operating in India. After their arrest they made some statements which were recorded under section 164, Cr. P.C on 14-10-1971 and 16-10-1971 respectively. Their statements led to the arrest of another spy of Pakistan Akram Ali Daudi on 13-12-1971. On his arrest he also made some disclosures. His statement under S. 164, Cr. P.C was also recorded on the same day. It is from the statement of Akram Ali Daudi that the complicity of the two appellants in espionage work were also revealed. This led to the arrest of the two appellants. Zulfiwar Ali, appellant, was arrested on 9-2-1982 near Aroma Hotel in. Chandigarh. The other appellant, Sayyed Tariq Masood was arrested on 29-1-1972 at Royal Hotel at Hyderabad. After their arrest, they had also made statements which were also recorded under S. 164, Cr. P.C on 26-2-1972 and 9-2-1972 respectively. After investigation in the case conducted by the crime branch of C.I.D Lucknow, a charge-sheet was filed against all these five persons, namely, Mohammad Tayyab alias Rajendra Singh Mohammad Sajjid Alias Mohan lal, Akram Ali and the two appellants which gave rise to Sessions Trial No. 39 of 1979 against the said five persons. During trial, however, two persons viz. Mohammad Tayyab alias Rajendra Singh and Mohammad Sajjad alias Mohan Lal were repatriated to Pakistan by the Government of India. Akram Ali Daudi who was released on bail jumped that bail and is still absconding. The trial, therefore, proceeded against the two appellants only who have been convicted and sentenced as already stated above.
4. The allegations which have been held established by the trial court are that the two appellants were members of a criminal conspiracy in Pakistan and India along with the aforesaid three co-accused viz. Akram Ali Daudi, Mohd. Tayyab and Mohd. Sajjad and several other unknown persons, and the object of these conspirators was to stay in India with their avowed object of moving throughout the country, collecting informations relating to ammunition factories, Cantonment areas, movement of Western Military Command at Chandigarh and other informations of vital importance relating to Military and passing them over to appropriate authorities in Pakistan. Their such activities were calculated and intended only to help Pakistan, an enemy country, directly or indirectly.
5. As already stated above these findings of the trial court are not challenged and rightly so. It is, however, urged that the offences proved against the appellants did not warrant maximum sentences for the offences for which they have been convicted. In any case these sentences should not have been directed to (run) consecutively particularly when the result of such a direction is that the appellants' sentence of imprisonment exceeds 14 years' R.I which is the longest period of imprisonment for a person for any offence.
6. According to the learned Additional Government Advocate, no sentence was excessive to an accused who indulges in activities of such nature which ultimately result in jeopardising the very security of the State. If, even after awarding maximum sentence to the appellants on each count, the trial court has committed no error in directing them to run consecutively.
7. In the opinion of the trial Judge, the activities of the appellants deserve no sympathy, they being gravely dangerous to the very security of this country. He has further opined that in such cases the punishment provided by Legislature for such offence is not adequate and actually such accused persons deserve the sentence of death as provided in some other foreign countries. Therefore, after convicting and sentencing the appellants to the maximum sentences under S. 3 of the Official Secrets Act and 120 B.I.P.C, he has refused to make their sentences concurrent.
8. We have heard the counsel for both the sides at great length. There can be no doubt that the offences committed by the appellants are greavest of grave offences.
9. The object of punishment in a crime of above nature is not only to prevent the person who has committed the crime from repeating the act but also for preventing others similarly placed from embarking on such a venture. In this case, a repetition of another offence by them can only be achieved by making them afraid of the offence i.e by intimidation. As regards the other persons belonging to the community of the appellants who are disposed to commit similar offences, the only way of preventing them from committing similar crime is by providing an exemplary punishment to the appellants which may have deterrent effect on others. The crime committed by the appellants, therefore, merits maximum punishment. It is only the maximum sentence provided in law which is commensurated with the gravity of the offence committed by the appellants.
10. In this connection the trial Judge has observed that the appellants deserve death penalty but it could not be given to them but for that sentence not being provided in law. We can only draw the attention of the trial Judge to the settled principle of law on the subject. As regards the quantum of punishment the policy of law is to fix a maximum penalty which is intended only for the worst cases and to leave the discretion of the Judge the determination of the extent to which in a particular case the punishment awarded could approach to or recede from, the maximum limit therefore, having regard to the gravity of the offence committed by the appellants they deserve the maximum penalty provided in law.
11. The next question raised in this appeal is whether the trial Judge ought to have made the sentences of the appellants concurrent. According to Sri C.S Saran, the learned Counsel for the appellants, the proviso (a) to S. 31(2), Cr. P.C leaves no room for doubt that 14 years, R.I is maximum term of punishment which can be awarded as an aggregate sentence whereas in this case, the aggregate sentence of the appellants comes to 28 (Twenty eight) years which, according to him, exceeds even the life imprisonment. He has urged that even though the appellants belong to an enemy country, their trial in this country cannot defy the law of the land as it is.
12. The learned Additional Government Advocate, however, defended the act of the trial Judge in not making the sentences concurrent by contending that, by doing so the learned Judge has only followed the normal rule of law relating to the sentence, passed in a trial relating to more than one offence which lays down that the sentences must be consecutive. According to him, proviso (a) to S. 31(2) of the Code does provide that in no case the aggregate sentence awarded for two or more offences tried in one trial can exceed 14 years because this proviso is not appended at the end of the section but it is placed at the end of cl. (2) of this Section.
13. It is no doubt true that the normal rule of punishment as provided in S. 31(1) is that the sentences should run consecutively but it is also provided in S. 31(1) itself that in appropriate cases it can be made concurrent. It is clear from S. 31(1), Cr. P.C itself which reads as under:—
“When a person is convicted at one trial or two or more offences, the Court may subject to the provisions of Section 71 of the Indian Penal Code (45 of 1860) sentence him for such offences, to the several punishments prescribed therefor, which such court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct. Unless the court directs that such punishments shall run concurrently.”
14. The words “unless the court directs that such punishment shall run concurrently” occur in the Section for some object. These words clearly indicate that the punishments can be directed to run concurrently in an appropriate case. In other words, there may be a case where only concurrent punishments can meet the ends of justice. Therefore, it has to be examined in this case whether on the facts proved in the case, concurrent punishment is called for. If once it is concluded that this case warrants concurrent punishments, the order of the trial Judge directing the punishments to be consecutive cannot be upheld.
15. The learned counsel for the appellant in this connection contended that the aggregate of the two sentences being more than 14 years, the order of the learned Sessions Judge is hit by proviso (a) to S. 31(2), Cr. P.C and is, therefore, illegal.
16. Proviso (a) to S. 31(2), Cr. P.C reads asunder:—
“(a) in no case shall such person be sentenced to imprisonment for a longer period than fourteen years.”
17. The above proviso, therefore, clearly prescribes the maximum term of punishment by providing that the aggregate punishment for several offences in one trial is not to exceed 14 years. Therefore, the aggregate sentence of 28 years in the present case passed by the learned trial court as contended by teamed counsel for the appellant is hit by this proviso.
18. If a reference is made to the old Code, it will be seen that the above proviso is in pari materia with S. 35(a) of the old Code. In the commentary of S. 35(a) of the old Code in the “Code of Criminal Procedure” by Chitaley and Annaji Rao (Edition 1 Vol. 1) the following observation is given at page 200:
“Thus an aggregate sentence of 20 years passed in respect of 3 convictions in one trial is contrary to this provision.”
19. In Sheo Narain v. Emperor, (1910) 11 Cri. LJ 679 the accused was sentenced to 7 years' R.I each on two charges and 6 years' R.I on one charge in one trial. The sentences were directed to run concurrently. The aggregate of these sentences was thus 20 years i.e it exceeded the maximum limit of 14 years provided by above proviso. In appeal Reid, C.J and Ryves, J. while considering the above sentence along with the proviso (a) of S. 35(2) of the old Code observed:
“What in my opinion the proviso (a) to S. 35, Criminal P.C aims at is the prohibition of giving of consecutive sentences in one trial beyond the period of fourteen years. This is in my opinion in consonance with the scheme and frame of the Indian Penal Code wherein the maximum sentence of imprisonment for some of the heinous crimes is fourteen years.”
20. In this connection a reference may also be made to Nga Mya Gai (a) E. Maung v. Emperor, AIR 1937 Rangoon 391 : (1938 (39) Cri. LJ 28) wherein also the same view has been taken.
21. The above two decisions, therefore, supports the view that according to proviso (a) of S. 35 of the old Code 14 years' imprisonment was the maximum term of imprisonment which could be awarded as an aggregate sentence for various offences in the same trial. Where aggregate sentence exceeds 14 years, imprisonment, it becomes illegal. The object of proviso (a) to S. 31(2) Cr. P.C which is in pari materia with S. 35(2) of the old Code is, also the same i.e it also aims at the prohibition of passing of consecutive sentences in one trial beyond the period of 14 years.
22. It has been urged in this connection that proviso (a) is appended to sub-s. (2) of S. 31, and therefore, it will not govern the provisions of sub-sec. (1) of S. 31 which contains the normal rule that the sentences should be consecutive. Since this sub-section does not prescribe any maximum term of imprisonment that can be passed in a trial, a proviso appended to sub-s. (2) will not govern this sub-section.
23. We do not subscribe to the above view. Sub-sec. (1) of S. 31 no doubt says that the sentences should normally be consecutive but it has further provided that in appropriate cases the sentences may be made to run concurrently. The object of this sub-section is clearly to emphasis that the court must expressly direct whether the sentences awarded in a trial are to run concurrently or consecutively. This has been emphasised by providing that normally the sentences should be made to run consecutive and they may be made to run concurrently only if there is a reason for giving such a direction. By making such a provision, this sub-section has not provided any maximum term of punishment when the court directs the sentences to run consecutively. This is, as seen below, is provided in the following sub-sec. (2).
24. The opening words “In the case of consecutive sentences” sub-s. 31(2) make it clear that this sub-section refers to a case in which “consecutive sentences” are ordered. After providing that in such a case if an aggregate of punishment for several offences is found to be in excess of punishment which the court is competent to inflict on a conviction of single offence, it shall not be necessary for the court to send the offender for trial before a higher court. After making such a provision, proviso (a) is added to this sub-section to limit the aggregate of sentences which such a court pass while making the sentences consecutive. That is this proviso has provided that in no case the aggregate of consecutive sentences passed against an accused shall exceed 14 years. In the instant case the aggregate of the two sentences passed against the appellant being 28 years clearly infringes the above proviso. It is accordingly not liable to be sustained.
25. Even if the proviso (a) to S. 31(1), Cr. P.C is ignored, the sentences passed in this case deserve to be made concurrent. No doubt each of the two charges for which the appellant has been tried was distinct and separate but the offences committed giving rise to the said two charges were akin to each other in the sense that the prosecution had to prove the same facts. In other words the appellant has been held to have committed both the offences on the same facts proved by the prosecution.
26. In case where the offences for which the accused is charged on more than one head are based on the same facts, it is only just and appropriate that the sentences should be made concurrent. It is only to meet such contingencies that S. 31(1), Cr. P.C has made a provision that the sentences could be made concurrent.
27. In the above view of the matter the sentences passed against the appellants deserves to be made to run, concurrent. In the result, the conviction and sentence of the appellants under S. 3 of the Official Secrets Act and S. 120-B, I.P.C are maintained but the sentences awarded shall run concurrently instead of consecutively. With this modification in the order of the learned Additional Sessions Judge, this appeal is dismissed.
28. Appeal dismissed.
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