It is in the fitness of things that the Supreme Court has commendably, cogently and convincingly in a latest, learned, laudable and landmark judgment titled Sunil Kumar @ Sudhir Kumar & Anr. vs The State of Uttar Pradesh in Criminal Appeal No. 526 of 2021 (Arising from SLP (Crl.) No. 3549 of 2018) in exercise of its criminal appellate jurisdiction on May 25, 2021 by a two Judge Bench of the Apex Court comprising of Justice Dinesh Maheshwari and Justice Aniruddha Bose observed that the Trial Courts while awarding multiple punishments of imprisonment, have to specify in clear terms as to whether the sentences would run concurrently or consecutively. It was also made pretty clear by the Apex Court that any omission to carry out this obligation causes unnecessary and avoidable prejudice to the parties. In no uncertain terms it was also clarified that the omission to state whether the sentences awarded to the accused would run concurrently or would run consecutively essentially operates against the accused because unless stated so by the Court, the omission to state the order of consecutive running cannot ipso facto lead to concurrent running of sentences. Very rightly so!
To start with, after granting leave as noted in para 1, the Bench then observes in para 2 that, “In view of the order dated 13.04.2018 passed by this Court while granting permission to the Special Leave Petition and issuing notice, the scope of this appeal is restricted to the question of sentence; and the appellants herein, after their conviction of offences under Sections 363, 366 and 376(1) of the Indian Penal Code, 1860 (‘IPC’), have already undergone 13 years and 2 months of imprisonment. In the given circumstances, we have heard learned counsel for the parties finally at this stage itself.”
To put things in perspective, the Bench then enunciates in para 3 that, “As regards relevant background aspects, suffice it to notice that on 03.02.2008, Case Crime No. 44 of 2008 for offences under Sections 363 and 366 Indian Penal Code, 1860 ( ‘IPC’) came to be registered at Police Station, T.P. Nagar, Meerut on the basis of a written complaint that the complainant’s 13-year-old daughter, who had gone to school on 15.01.2008, had not returned; and after a lot of efforts, the complainant came to know that the accused-appellant No. 2 Faimuddin @ Feru @ Sonu had enticed his daughter. In the course of investigation, the victim girl was recovered and ultimately, the charge-sheet was filed against the appellants for offences under Sections 363, 366 and 376 IPC. They were tried in Sessions Trial No. 575 of 2008 wherein, the Court of Additional District and Sessions Judge, Fast Track Court No. 5, Meerut, in its judgment and order dated 12.09.2008, convicted them of offences under Sections 363, 366 and 376(1) IPC.”
As it turned out, the Bench then remarks in para 4 that, “After having recorded conviction as aforesaid, the Trial Court sentenced the appellants to several punishments in the following manner: rigorous imprisonment for a term of 5 years with fine of Rs. 2000/- and in default, further imprisonment for 6 months for the offence under Section 363 IPC; rigorous imprisonment for a term of 7 years with fine of Rs. 3,000/- and in default, further imprisonment for 1 year for the offence under Section 366 IPC; and rigorous imprisonment for a term of 10 years with fine of Rs 5.000/- and in default, further imprisonment for 11/2 years for the offence under Section 376(1) IPC. However, the Trial Court did not specify the order in which one punishment of imprisonment was to commence after expiration of the other.”
Going ahead, the Bench then brings out in para 5 that, “As against the judgment and order of the Trial Court, only the appellant No. 1 Sunil Kumar @ Sudhir Kumar preferred an appeal before the High Court of Judicature at Allahabad, being Criminal Appeal No. 7399 of 2008. However, learned counsel for the appellant before the High Court confined his arguments only on the point of sentence and did not press on the point of conviction. Thus, the conviction recorded by the Trial Court attained finality, for the appellant No. 2 having not filed the appeal and for the appellant No. 1, even after filing the appeal, having not challenged the same. Accordingly, the High Court, examined only the question of sentence qua the appellant No.1 and, in its impugned judgment and order dated 21.02.2018. while holding that the default stipulations were rather disproportionate, proceeded to modify the order of sentencing only to the extent that in the event of default in payment of fine, the accused-appellant (i.e. the appellant No.1) shall undergo additional imprisonment for the terms of 5 months, 3 months and 1 month for the offences under Sections 376(1), 366 and 363 IPC respectively. However, the High Court, even after taking note of the fact that. the accused-appellant had already undergone 10 years of imprisonment, did not consider that the Trial Court had neither provided for concurrent running of sentences, if they were to run consecutively. Interestingly, while the Trial Court sentenced the appellants for offences under Sections 363, 366 and 376(1) in that order, the High Court provided for modification of default stipulations in converse order i.e., for offences under Sections 376(1), 366 and 363 IPC respectively.”
It cannot be lost on us that the Bench then envisages in para 6 that, “For the reason that the decisions aforesaid were silent on the point of concurrent or consecutive running of sentences, the Jail Superintendent, District Jail, Meerut, while issuing certificates of confinement on 14.03.2018, stated that the accused-appellants had undergone 10 years and 1 month of imprisonment but, there being no mention in the sentencing order about concurrent running of sentences, they were serving 22 years of imprisonment. Faced with such a predicament, the accused-appellants have approached this Court.”
Needless to state, the Bench then observed in para 9 that, “We have given thoughtful consideration to the rival submissions and have examined the record of the case with reference to the law applicable.”
It would be instructive to mention here that the Bench then lays bare in para 10 while citing the relevant case law that, “The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) CrPC. The contours of these provisions have been succinctly delineated and explained by this Court in the case of O.M. Cherian (supra) in the following terms:-
“20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain and Section 31 CrPC.”
In hindsight, the Bench then points out in para 10.1 that, “In Muthuramalingam (supra), the basic question before the Constitution Bench was as to whether consecutive life sentences could be awarded to a convict on being found guilty of a series of murders, for which, he had been tried in a single trial. In the course of determination of this question, the Constitution Bench dealt with several dimensions of sentencing, particularly those relating to multiple sentences and observed inter alia that, –
“23…….So interpreted Section 31 (1) CrPC must mean that sentences awarded by the court for several offences committed by the prisoner shall run consecutively (unless the court directs otherwise) except where such sentences include Imprisonment for life which can and must run concurrently……”
Of course, the Bench then very rightly goes on to add in para 10.2 which we cannot lose sight of that, “Thus, it is beyond a shadow of doubt that Section 31 (1) CrPC vests complete discretion with the Court to order the sentences for two 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. There cannot be any straitjacket approach in the matter of exercise of such discretion by the Court; but this discretion has to be judiciously exercised with reference to the nature of the offence/s committed and the facts and circumstances of the case. However, if the sentences (other than life imprisonment) are not provided to run concurrently, one would run after the other, in such order as the Court may direct.”
To be sure, the Bench then postulates in para 11 that, “For what has been provided in Section 31(1) CrPC read with the expositions of this Court, it follows that the Court of first instance is under legal obligation while awarding multiple sentences to specify in clear terms as to whether they would run concurrently or consecutively. In the case of Nagaraja Rao (supra), this Court expounded on this legal obligation upon the Court of first instance in the following terms:-
“11. The expressions “concurrently” and “consecutively” mentioned in the Code are of immense significance while awarding punishment to the accused once he is found guilty of any offence punishable under any other Special Act arising out of one trial of more. It is for the reason that award of former enure to the benefit of the accused whereas award of latter is detrimental to the accused’s interest. It is therefore, legally obligatory upon the court of first instance while awarding sentence to specify in clear terms in the order of conviction as to whether sentences awarded to. the accused would run “concurrently” or they would run “consecutively”.”
Be it noted, the Bench then clearly, cogently and convincingly holds in para 12 that, “As noticed, if the Court of first instance does not specify the concurrent running of sentences, the inference, primarily, is that the Court intended such sentences to run consecutively, though, as aforesaid, the Court of first instance ought not to leave this matter for deduction at the later stage. Moreover, if the Court of first instance is intending consecutive running of sentences, there is yet another obligation on it to state the order (i.e., the sequence) in which they are to be executed. The disturbing part of the matter herein is that not only the Trial Court omitted to state the requisite specifications, even the High Court missed out such flaws in the order of the Trial Court.”
Most notably, the Bench then minces no words to state it quite upfront in para 13 that, “Even when we find the aforementioned shortcomings in the orders passed by the Trial Court as also by the High Court,, the question is as to whether the sentences awarded to the appellants could be considered as running concurrently? As noticed, the omission to state whether the sentences awarded to the accused would run concurrently or would run consecutively essentially operates against the accused because, unless stated so by the Court, multiple sentences run consecutively, as per the plain language of Section 31(1) CrPC read with the expositions in Muthuramalingam and O.M. Cherian (supra). The other omission to state the order of consecutive running cannot ipso facto lead to concurrent running of the sentences.”
As a corollary, the Bench then stipulates in para 14 that, “Faced with the position that the stated omissions will not, by themselves, provide a room for concurrent running of sentences, learned counsel for the appellants has endeavoured to invoke the ‘single transaction’ principle. In our view, the said principle is essentially referable to Section 220 CrPC, which provides that if more offences than one are committed in one series of acts so connected together as to form the same transaction, then the accused may be charged with and tried at one trial for every such offence. In a given case, after such trial for multiple offences, if the accused is convicted and awarded different punishments, concurrent running thereof may be provided depending on the facts and the relevant surrounding factors. We are afraid, the principle related with ‘single transaction’ cannot be imported for dealing with the question at hand.”
As we see, the Bench then propounds in para 16 that, “For what has been discussed hereinabove, we are not inclined to accept the principal part of the submissions of learned counsel for the Appellants. However, the other part of his submissions, that requiring the appellants to serve a total term of 22 years in prison would be highly disproportionate to the actual punishment they need to suffer in this case, cannot be brushed aside as altogether unworthy of consideration.”
It would be worthwhile to mention that the Bench then points out in para 17 that, “We have taken note of the observations of the Constitution Bench in Muthuramalingam (supra), which were made in the context of a previous decision of this Court, where the eventuality of consecutive running of life sentences was obviated with reference to the proviso to sub-section (2) of Section 31. The Constitution Bench though endorsed the view that consecutive life sentences cannot be awarded but observed that the proviso to sub-section (2) of Section 31 CrPC cannot be relied upon to support this conclusion and also observed that sub-section (2) of Section 31 CrPC has no application to a case tried by the Court of Sessions nor sub-section (2) forbids a direction for consecutive running of sentences awardable by the Court of Sessions.”
Interestingly enough, the Bench then envisages in para 17.1 that, “Even when sub-section (2) of Section 31 CrPC is not directly applicable, some of the relevant features of the present case are that the offences in question were committed in the year 2008 i.e., before amendment of IPC by the Amending Act 13 of 2013; the appellants have continuously served about 13 years and 2 months of imprisonment; and nothing adverse in regard to their conduct while serving the sentences has been placed on record. In the given set of circumstances, we have pondered over the question as to what ought to be the order for a just balance on the requirements of punishment on one hand and reasonable release period for the appellants on the other, while keeping in view the overall scheme of awarding of punishments and execution thereof, including the ancillary aspects referable to Sections 433 and 433A CrPC as also Section 55 IPC whereunder, serving of a term of 14 years even in the sentence of imprisonment for life is the bottom line (subject to the exercise of powers of commuting by the appropriate Government in accordance with other applicable principles). After anxious consideration of all the relevant factors, we are of the view that the requirements of complete justice to the cause before us could adequately be met by providing that the maximum period of imprisonment to be served by the appellants shall be 14 years and not beyond.”
Nevertheless, the Bench then lays bare in para 18 that, “However, the submission for extending the benefit of modification of default stipulations qua the appellant no.2 carries the shortcoming that the said appellant did not prefer appeal against the judgment and order of the Trial Court. This is coupled with the fact that in the root cause of this matter, the initial accusation of enticing the victim was made against the appellant No.2. In view of the overall circumstances and the principal subject matter of this appeal, we find no reason to re-open the issue which was not taken by the appellant No.2 at the relevant stage.”
As a consequence, the Bench then holds in para 19 that, “In view of the above, in exercise of powers under Article 142 of the Constitution of India, we provide for modification of the punishment awarded to the appellants in the manner that the maximum period of imprisonment to be served by them in relation to offences in question shall be 14 years amd not beyond. It goes without saying that this order of modification is passed only in the peculiar facts and circumstances of this case.”
Adding more to it, the Bench then specified in para 19.1 that, “However, 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. Learned counsel for the appellants submits that as per his instructions, the appellant No.1 has deposited the fine amount. The submission is taken on record. However, it is made clear that in default in payment of fine, the defaulter-appellant shall undergo respective default sentences consecutively and in the order they have been imposed, for offences under Sections 363, 366 and 376(1) IPC.”
Before concluding, the Bench clarified in para 20 that, “The appeal is partly allowed, as aforesaid.”
On a concluding note, the Bench then holds in para 21 that, “While closing on the matter, we deem it appropriate to reiterate what was expounded in the case of Nagaraja Rao (supra), that it is legally obligatory upon the court of first instance, while awarding multiple punishments of imprisonment, to specify in clear terms as to whether the sentences would run concurrently or consecutively. It needs hardly an emphasis that any omission to carry out this obligation by the Court of first instance causes unnecessary and avoidable prejudice to the parties, be it the accused or be it the prosecution.”
It goes without saying that as the Apex Court has set the record straight on this vexed issue. It is the bounden duty of all the Trial Courts and the High Courts to strictly abide by what it has held. Thus the Trial Courts have to clearly specify now whether sentences would run concurrently or consecutively while awarding multiple punishments of imprisonment. No denying it!
Sanjeev Sirohi