Benson v. State Of Kerala ., Supreme Court Of India, Judgment, Law, casemine.com

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Case Number

Criminal Appeals No. 958 of 2016 with Nos. 957 of 2016, 959 of 2016 and 960 of 2016, decided on October 3, 2016

Disposition

in part

Attorney(S)

Ranjith B. Marar, Ms Lakshmi N. Kaimal and T.K. Babu, Advocates, ;
G. Prakash, Jishnu M.L., Ms Priyanka Prakash, Ms Beena Prakash, Manu Srinath and Ramesh Babu M.R., Advocates,

Judges

Dipak Misra
Uday U. Lalit, JJ.

Acts

Section 427 of the Code of Criminal Procedure, 1973
Section 5, Subsection 2 of the 1983 Income Tax Act
Section 379 r/w 34 of the Indian Penal Code (IPC)

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Smart Summary

Factual and Procedural Background

The appellant, Benson, was tried separately in four cases—CC No. 158/2004, 1039/2003, 390/2004 (all before the Judicial Magistrate First Class, Chavakkad) and CC No. 1168/2006 (before the Judicial Magistrate First Class, Kunnamkulam)—for offences under Sections 379 and 414 read with Section 34 of the Indian Penal Code. He was convicted and sentenced in each matter, and the sentences were affirmed by the Sessions Judge, Thrissur, and later by the High Court of Kerala in Criminal Revision Petitions Nos. 808, 859, 858 and 670 of 2015. The present criminal appeals, arising out of Special Leave Petitions (Criminal) Nos. 3756-3759 of 2016, challenge only the manner in which the sentences were ordered to run, not the convictions themselves.

Legal Issues Presented

Whether the Supreme Court should exercise its discretion under Section 427(1) of the Code of Criminal Procedure, 1973, to direct that the sentences imposed in CC Nos. 158/2004, 1039/2003, 390/2004 and 1168/2006 run concurrently with the sentence already being served in another case (identified as Crime No. 8 in the prison‐authority chart).

Arguments of the Parties

Appellant's Arguments

Invoked Section 427 CrPC, contending that the Court should direct concurrent running of the four impugned sentences with the sentence presently operative.
Stressed that all four offences were committed on the same day, and cumulative consecutive execution would extend imprisonment to about 19 years.

State's Arguments

Filed a communication dated 27 May 2016 from the Director General of Prisons and Correctional Services containing a detailed sentence-calculation chart reflecting consecutive running of all sentences.
No specific opposition to concurrency is recorded, but the State relied on the existing calculation to show the legal position absent a court order to the contrary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
V.K. Bansal v. State of Haryana & Anr. (2013) 7 SCC 211	Discretion under Section 427(1) CrPC must be exercised judicially; concurrency may be directed based on nature of offences and surrounding circumstances.	The Court relied on the approach in V.K. Bansal to group sentences and limit concurrency to substantive terms while keeping default sentences consecutive.

Court's Reasoning and Analysis

1. Section 427(1) CrPC establishes the default rule that subsequent sentences begin after the previous sentence ends, but allows the court to order concurrency.

2. The Court examined the prison authority’s sentence-calculation chart, confirming that—absent intervention—the appellant’s aggregate sentences would extend until 19 August 2022, amounting to about 19 years of incarceration.

3. The Court noted that the four convictions in question all relate to offences committed on the same day and carry a maximum of two years’ rigorous imprisonment each.

4. Applying the principle in V.K. Bansal, and recognising the judicial discretion embedded in Section 427(1), the Court found it appropriate to mitigate the cumulative effect of consecutive sentences in these circumstances.

5. Consequently, it directed that the substantive sentences in CC Nos. 158/2004, 1039/2003, 390/2004 and 1168/2006 (serial numbers 9-12 in the prison chart) should run concurrently with the sentence already being served in Crime No. 8.

6. The Court expressly maintained (i) the quantum of fines in all cases and (ii) the default sentences for non-payment of fines, specifying that any default imprisonment would run consecutively.

Holding and Implications

Allowed in Part; sentences modified.

The Supreme Court ordered concurrency of the four impugned substantive sentences with the sentence presently operative, thereby substantially reducing the appellant’s remaining period of imprisonment. The fines and their default sentences remain intact. The ruling applies established principles under Section 427 CrPC and does not create new precedent beyond reinforcing judicial discretion for concurrent sentencing in factually similar situations.

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Benson v. State Of Kerala .

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

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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:-

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C.C.No./ Date Date of Crl. Appeal Crl. SLP Offence of Conviction No. R.P. No. occurrence and Sentence No. in by Judicial the

Magistrate High

First Class Court

158/2004 03.06.2003 28.06.06, 533/2012 808/ SLP in the Court RI for 2 years decided on 2015 (Crl.) of Judicial and fine of 15.11.2012 3757/ Magistrate First Rs.1,000/- for by Sessions 2016 Class (in short offence u/s 379 Judge, JMFC), IPC and RI for Thrissur

Chavakkad/ 2 years u/s 414

U/s 379, 414 ID RI for 3

r/w 34 of IPC months

1039/2003 03.06.2003 28.06.06, 759/2011 859/ SLP in the Court RI for 2 years decided on 2015 (Crl.) of JMFC, and fine of 17.09.2012 3759/ Chavakkad/ Rs.1,000/- for by Sessions 2016 U/s 379, 414 offence u/s 379 Judge, r/w 34 of IPC IPC and RI for Thrissur 2 years for

offence u/s 414

IPC, ID RI for

3 months.

390/2004 03.06.2003 28.06.06, 761/2011 858/ SLP in the Court RI for 2 years decided on 2015 (Crl.) of JMFC, and fine of 04.08.2012 3758/ Chavakkad/ Rs.1,000/- for by Sessions 2016 U/s 379, 414 offence u/s 379 Judge, r/w 34 of IPC IPC and RI for Thrissur 2 years u/s 414

ID RI for 3

months

1168/2006 03.06.2003 31.12.08, 461/2011 670/ SLP in the Court RI for 1 year decided on 2005 (Crl.) of JMFC, and fine of 30.09.2011 3756/ Kunnamkulam/ Rs.1,000/- ID by Sessions 2016 U/s 379 r/w 34 SI for 6 months Judge, of IPC Thrissur

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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.

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:

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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

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12 CC 1168/06 Sentenced to undergo RI for 1 year + fine Rs.1,000 JFCM i/d SI for 2 months u/s 379 r/w 34 IPC Set off 14 Kunnamangalam days

Wdt.31-12-2008

Sentence Calculation

S. Case No. Sentence Calculation No.

1^stSentence Started 20-11-2003

1 CC 613/03 Sentence 3 years 19-11-2006 JFCM I, Thrissur Set Off 97 days 14-08-2006 At large 153 days 14-01-2007

2 CC 533/04 2^ndSentence Started 14-01-2007 JFCM II, Thrissur Sentence 2 years 14-01-2007 Set off 521 days 12-08-2009

3 CC 529/04 3^rdSentence Started 12-08-2009 JFCM II, Thrissur Sentence 3 years 12-08-2010 Set off 493 days 06-04-2009

4 CC 1270/13 JFCM 4^thSentence Started 06-04-2009 Changanassery Sentence 2 years 06-04-2011 Set off 348 days 23-04-2010

5 CC 115/03 JFCM 5^thSentence Started 23-04-2010 Irinjalakkuda Sentence 2 years 23-04-2012 Set off 402 days 18-03-2011

6 CC 932/05 6^thSentence Started 18-03-2011 JFCM Irinjalakuda Sentence 2 years 18-03-2013 Set off 465 days 09-12-2011

7 SC 171/05 7^thSentence Started 09-12-2011 ADSJ Adhoc II, Sentence 5 years 09-12-2016 Kottayam Set off 418 days 18-10-2015

8 CC 274/06 8^thSentence Started 18-10-2015 JFCM Kodungallur Sentence 3 years 18-10-2018 Set off 414 days 30-08-2017

9 CC 158/04 9^thSentence Started 30-08-2017 JFCM Chavakkad Sentence 2 years 30-08-2019 Set off 347 days 17-09-2018

10 CC 1039/03 JFCM 10^thSentence Started 17-9-2018 Chavakkad Sentence 2 years 17-09-2020 Set off 240 days 21-01-2020

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11 CC 390/04 11^thSentence Started 21-01-2020 JFCM Sentence 2 years 21-01-2022 Chavakkad Set off 141 days 02-09-2021

12 CC 1168/06 12^thSentence Started 02-09-2021 JFCM Sentence 1 year 02-09-2022

Kunnamangalam Set off 14 days 19-08-2022 Fine Sentence 19-10-2022 (F4)

Details 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

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sentence calculation, the sentence in the 9^thcase would begin on 30.08.2017 and finally, the sentence in the 12^thcase, 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 8

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 9

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 8^thcrime 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 10

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

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Benson v. State Of Kerala .

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

State's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Benson v. State Of Kerala .

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