TMI Blog2021 (5) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... or what has been provided in Section 31(1) Code of Criminal Procedure 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 - 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. Even when Sub-section (2) of Section 31 Code of Criminal Procedure is not directly applicable, some of the relevant features of the present case are that the offences in question were committed in the year 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , AAG, Sarvesh Singh Baghel, AOR, B.N. Dubey and Shivranjani Ralawata, Advs. JUDGMENT 1. Leave granted. 2. In view of the order dated 13.04.2018 passed by this Court while granting permission to file 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. 2.1. Even the short question involved in this matter carries the peculiarities of its own, as noticed infra. 3. 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Indian Penal Code 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 nor provided the order of 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 Indian Penal Code respectively. 6. 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC 153 and has submitted that looking to the nature of accusation, there was no reason for the Courts to direct consecutive running of sentences in the present case. 7.3. Further, the learned Counsel for the Appellants has referred to the decisions in State of Punjab v. Gurmit Singh and Ors.: (1996) 2 SCC 384 and State of Madhya Pradesh v. Anoop Singh: (2015) 7 SCC 773 to submit that those too were the cases involving offences Under Sections 363, 366 and 376 with victim being a minor; and therein, this Court has awarded the sentences running concurrently. 7.4. The learned Counsel has also argued that though the Appellant No. 2 did not prefer appeal against the judgment and order of the Trial Court, this Court permitted him to file SLP by the order dated 13.04.2018; and, therefore, benefit of reduction of default sentence, as ordered by the High Court, deserves to be extended to the Appellant No. 2 too. 7.5. The learned Counsel Mr. Pai, even while frankly pointing out the observations of the Constitution Bench in Muthuramalingam and Ors. v. State (2016) 8 SCC 313 (paragraph 28), to the effect that Sub-section (2) of Section 31 has no application to a case tried by the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trial Court in not specifying the order of running cannot mean that the sentences are to run concurrently. 9. We have given thoughtful consideration to the rival submissions and have examined the record of the case with reference to the law applicable. 10. The contentions urged in this matter essentially revolve around the provisions contained in Section 31(1) Code of Criminal Procedure. 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 Code of Criminal Procedure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o run concurrently, one would run after the other, in such order as the Court may direct. 11. For what has been provided in Section 31(1) Code of Criminal Procedure 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 Indian Penal Code or/and of an offence punishable under any other Special Act arising out of one trial or 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 wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question at hand. 14.1. In the case of Mohan Baitha (supra), this Court observed that the expression 'same transaction', from its very nature, is incapable of an exact definition and it is not possible to enunciate any comprehensive formula of universal application for the purpose of determining whether two or more acts constitute the same transaction. The question involved in that case did not relate to sentence but to the inquiry and trial of different offences pertaining to Sections 304-B, 498-A, 120-B and 406 Indian Penal Code and territorial jurisdiction of the Magistrate in Bihar when the alleged incident constituting one of the offences, i.e., Under Section 304-B Indian Penal Code, had taken place in the State of Uttar Pradesh. Of course, in the case of Mohd. Akhtar Hussain (supra), this Court indicated that if a transaction constitutes two offences under two enactments, generally it is wrong to have consecutive sentences but this Court hastened to observe that such a Rule shall have no application if the transaction relating to the offences is not the same or the facts concerning the two offences are quite different. Significantly, in that case, consecutive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Code of Criminal Procedure cannot be relied upon to support this conclusion and also observed that Sub-section (2) of Section 31 Code of Criminal Procedure 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. 17.1. Even when Sub-section (2) of Section 31 Code of Criminal Procedure 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 Indian Penal Code 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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