Any sentence of imprisonment in default of fine has to be in
excess of, and not concurrent with, any other sentence of
imprisonment to which the convict may have been sentenced.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2387 OF 2014
(Arising out of SLP (Crl.) No. 2487/2014)
O.M. CHERIAN @ THANKACHAN Vs STATE OF KERALA & ORS.
Citation;(2015) 2 SCC501
This appeal arises out of the judgment dated
27.11.2013 passed in Crl. Appeal No. 910/2006 by which the
High Court of Kerala confirmed the conviction of the
appellant/1st accused under Sections 498A and 306 IPC and
also the sentence of imprisonment imposed on him.
3.
1st
Briefly stated, case of the prosecution is that the
accused
married
Lillikutty
and
their
marriage
was
solemnized on 11.2.1988 and they continued their stay in
House bearing No. MP. VIII/84 of Karulayai Amsom along with
other accused, who are the father, mother and brother of the
appellant.
The allegation levelled is that in the matrimonial
house, the appellant/1st accused and other accused ill-treated
and tortured Lillikutty, compelling her to take the extreme
step of putting an end to her life by committing suicide.
During the marital life, Lillikutty had a premature delivery.
When she became pregnant again in 1993, it is alleged that
A-1 provided her with some tablets and Lillikutty had a
miscarriage. During her marital life Lillikutty delivered a child
who did not live long. On 23.2.1996 Lillikutty poured kerosene
oil on herself and also drank some, which was later cleared
away.
On 23.2.1996, a mediation talk had been scheduled
and PW-1 and the relatives of Lillikutty were also to attend the
mediation talks but when the meeting was so scheduled,
Lillikutty
committed
suicide
by
hanging.
On
the
first
information by PW-1, a neighbour of the accused, law was set
in motion. Initially FIR was registered for unnatural death
2
Page 2
under Section 174 Cr.P.C. and on subsequent complaint, the
same was altered to one for the offences punishable under
Sections 498A and 306 IPC.
PW-4 conducted autopsy and
submitted the post-mortem report.
PW-14, investigating
officer, had taken up the investigation and seized the
documents and material objects and examined the witnesses
and laid the charge sheet against the appellant and other
accused. In the trial court, PWs 1 to 15 were examined and
Exs. P-1 to P-25 were marked and MOs 1 to 18 were identified.
The accused were questioned under Section 313 Cr.P.C. and
they denied all the incriminating evidence and circumstances
brought out in evidence against them.
4.
Upon consideration of evidence, the trial court
convicted the appellant/1st accused under Section 498A IPC
and sentenced him
to undergo two years of rigorous
imprisonment and to pay a fine of Rs.5,000/- and in default of
payment of fine, to undergo further imprisonment of one year.
For the offence punishable under Section 306 IPC, the trial
court sentenced him to undergo rigorous imprisonment for
seven years and to pay a fine of Rs.50,000/- and in default of
payment of fine, to undergo further imprisonment of three
3
Page 3
years.
The substantive sentences of the appellant were
ordered to run consecutively. Accused 2 to 4 were convicted
under Section 498A IPC and were sentenced to undergo
imprisonment for two years and to pay fine of Rs. 5,000/- with
default clause of one year.
The High Court confirmed the
conviction and also the sentence of imprisonment imposed
upon all the accused.
5.
Being aggrieved, the appellant/1st accused has
preferred this appeal.
This Court issued notice only on the
limited question as to whether the sentence can be made to
run concurrently, instead of running consecutively.
This
Court by order dated 18.7.2014 observed that Section 31
Cr.P.C. was not noticed by this Court in Mohd. Akhtar Hussain
alias Ibrahim Ahmed Bhatti vs. Asstt. Collector of Customs
(Prevention), Ahmedabad & Anr. (1988) 4 SCC 183 and referred
the matter to be considered by a larger Bench in order to settle
the law and thus, the matter is before us. The order of
Reference is as follows:
“The petitioner herein was concurrently convicted for
offences under Section 498A and Section 306 IPC and
sentenced to undergo rigorous imprisonment for 2 years and
7 years respectively on the above-mentioned two counts
4
Page 4
apart from paying certain amounts of fine, the details of
which may not be necessary.
Both the Courts directed that the sentences should
run consecutively.
By an order dated 31st March, 2014, notice was issued
limited only to the question whether the direction whereby
the sentences were ordered to run consecutively is legally
tenable.
Learned counsel for the petitioner has placed reliance
on the judgments of this Court in Mohd. Akhtar Hussain
alias Ibrahim Ahmed Bhatti vs. Assistant Collector of Customs
(Prevention), Ahmedabad and Another (1988) 4 SCC 183 and
Manoj alias Panu vs. State of Haryana (2014) 2 SCC 153
and argued that when an accused is found guilty of more
than one offence at the same trial, though
separate
conviction is recorded on each of the different charges and
different sentences are imposed, such sentences are required
to be directed to run concurrently.
This Court in Mohd. Akhtar Hussain alias Ibrahim
Ahmed Bhatti case (supra) at para (10) held as under:
‘The basic rule of thumb over the years has
been 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.”
In Manoj alias Panu vs. State of Haryana (supra)
Bench simply followed the earlier judgment.
the
From the judgment in Mohd. Akhtar Hussain alias
Ibrahim Ahmed Bhatti case (supra), it appears that Section
31 of the Criminal Procedure Code was not noticed by this
Court when this Court observed as extracted above.
Section 31 (1) of the Cr. P.C. reads as follows:-
5
Page 5
31. Sentence in cases of conviction of several
offences at one trial. ‘(1) When a person is
convicted at one trial of 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 therefore 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.’
(2)...............
(3)...............”
Therefore, the statutory stipulation is clear that
normally sentences in such cases are to run consecutively.
Hence we find it difficult for us to accept the statement
of law made in the above mentioned two cases. We,
therefore, deem it appropriate that the matter be considered
by a Bench of appropriate strength to settle the law. We
direct the Registry to place the papers before Hon’ble the
Chief Justice of India for appropriate orders.”
6.
Learned counsel for the appellant Mr. Jayanth
Muthraj contended that when a person is convicted at one
trial for two or more offences, Section 31 Cr.P.C. vests a
discretion in the Court to direct that the punishment shall run
concurrently and in the present case the trial court and the
appellate court have not properly exercised such discretionary
power vested in them.
Learned counsel submitted that the
section provides that where several sentences are imposed for
6
Page 6
two or more offences, such sentences will run one after the
other in such order as Court directs, unless the Court directs
running
of
punishments
concurrently
and
the
Court’s
discretion to order concurrent running of sentences is not in
any manner restricted.
It was contended that there is no
reason to presume that general rule is that sentences will run
one after the other and exception is that punishments will run
concurrently. He further submitted that the judicial guideline
in Mohd. Akhtar Hussain is in no way in conflict with Section
31 Cr.P.C.
7.
We have heard Ms. Bina Madhavan learned counsel
appearing for the respondent–State of Kerala also, who
supported the view taken by the courts below. Learned
counsel placed reliance on the recent judgment of this Court
in Duryodhan Rout v. State of Orissa, 2014 (8) SCALE 96.
8.
We have given our thoughtful consideration to the
matter and perused the materials on record.
9.
Section 31 Cr.P.C. relates to the quantum of
punishment that the court has jurisdiction to pass where the
accused is convicted for two or more offences at one trial.
Section 31 Cr.P.C. reads as follows:-
7
Page 7
“S.31. Sentence in cases of conviction of
several offences at one trial.. –(1) When a
person is convicted at one trial of 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.
(2)
In the case of consecutive sentences, it
shall not be necessary for the Court by reason only
of the aggregate punishment for the several
offences being in excess of the punishment which
it is competent to inflict on conviction of a single
offence, to send the offender for trial before a
higher Court:
Provided that—
(a) in no case shall such person be sentenced to
imprisonment for a longer period than
fourteen years;
(b) the aggregate punishment shall not exceed
twice the amount of punishment which the
Court is competent to inflict for a single
offence.
(3)
For the purpose of appeal by a
convicted person, the aggregate of the consecutive
sentences passed against him under this section
shall be deemed to be a single sentence.”
10.
Section 31 Cr.P.C. relates to the quantum of
punishment which may be legally passed when there is
(a) one trial and (b) the accused is convicted of “two or more
8
Page 8
offences”.
Section 31 Cr.P.C. says that subject to the
provisions of Section 71 IPC, Court may pass separate
sentences for two or more offences of which the accused is
found guilty, but the aggregate punishment must not exceed
the limit fixed in the proviso (a) and (b) of sub-section (2) of
Section 31 Cr.P.C.
In Section 31(1) Cr.P.C., since the word
“may” is used, in our considered view,
when a person is
convicted for two or more offences at one trial, the court may
exercise its discretion in directing that the sentence for each
offence may either run consecutively or concurrently subject
to the provisions of Section 71 IPC.
But the aggregate must
not exceed the limit fixed in proviso (a) and (b) of sub-section
(2) of Section 31 Cr.P.C. that is – (i) it should not exceed 14
years
and
(ii)
it
cannot
exceed
twice
the
maximum
imprisonment awardable by the sentencing court for a single
offence.
11.
The words “unless the court directs that such
punishments shall run concurrently” occurring in sub-section
(1) of Section 31, make it clear that Section 31 Cr.P.C. vests a
discretion in the Court to direct that the punishment shall run
concurrently, when the accused is convicted at one trial for
two or more offences. It is manifest from Section 31 Cr.P.C.
that the Court has the power and discretion to issue a
direction for concurrent running of the sentences when the
accused is convicted at one trial for two or more offences.
Section 31 Cr.P.C. authorizes the passing of concurrent
sentences in cases of substantive sentences of imprisonment.
Any sentence of imprisonment in default of fine has to be in
excess of, and not concurrent with, any other sentence of
imprisonment to which the convict may have been sentenced.
12.
The words in Section 31 Cr.P.C “....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”
indicate that in case, the Court directs sentences to run one
after the other, the Court has to specify the order in which the
sentences are to run.
If the Court directs running of
sentences concurrently, order of running of sentences is not
required to be mentioned.
Discretion to order running of
sentences concurrently or consecutively is judicial discretion
of the Court which is to be exercised as per established law of
10
Page 10
sentencing.
The court before exercising its discretion under
Section 31 Cr.P.C. is required to consider the totality of the
facts and circumstances of those offences against the accused
while deciding whether sentences are to run consecutively or
concurrently.
13.
Section 31 (1) Cr.P.C. enjoins a further direction by
the court to specify the order in which one particular sentence
shall commence after the expiration of the other.
Difficulties
arise when the Courts impose sentence of imprisonment for
life and also sentences of imprisonment for fixed term.
In
such cases, if the Court does not direct that the sentences
shall
run
concurrently,
then
the
sentences
will
run
consecutively by operation of Section 31 (1) Cr.P.C. There is
no question of the convict first undergoing the sentence of
imprisonment for life and thereafter undergoing the rest of the
sentences of imprisonment for fixed term and any such
direction
would
be
unworkable.
Since
sentence
of
imprisonment for life means jail till the end of normal life of
the convict, the sentence of imprisonment of fixed term has to
necessarily run concurrently with life imprisonment. In such
case, it will be in order if the Sessions Judges exercise their
11
Page 11
discretion in issuing direction for concurrent running of
sentences.
Likewise if two life sentences are imposed on the
convict, necessarily, Court has to direct those sentences to
run concurrently.
14.
The opening words “in the case of consecutive
sentences” in sub-section (2) of Section 31 Cr.P.C. make it
clear that this sub-section refers to a case in which
“consecutive sentences” are ordered. The provision says that if
an aggregate punishment for several offences is found to be
in excess of
inflict
punishment which the Court is competent to
on a conviction of single offence, it shall not be
necessary for the Court to
a higher court.
send the offender for trial before
Proviso (a) is added to sub-section (2) of
Section 31 Cr.P.C. to limit the aggregate of sentences - that in
no case, the aggregate of consecutive sentences passed against
an accused shall exceed fourteen years. “Fourteen years rule”
contained in clause (a) of the proviso to Section 31 (2) Cr.P.C.
may not be applicable in relation to sentence of imprisonment
for life, since imprisonment for life means the convict will
remain in jail till the end of his normal life.
12
Page 12
15.
In Ramesh Chilwal vs. State of Uttarakhand (2012)
11 SCC 629, the accused was convicted under Section 302 IPC
and sentenced to undergo imprisonment for life. Accused was
also convicted under Sections 2/3 [3(1)] of the U.P. Gangsters
and Anti-Social Activities (Prevention) Act, 1986 and sentenced
to undergo rigorous imprisonment for ten years and under
Section 27 of the Arms Act sentenced to further undergo
rigorous imprisonment for seven years. Considering the fact
that the trial court had awarded life sentence under Section
302 IPC, this Court directed that all sentences imposed under
Section 302 IPC, Sections 2/3 [3(1)] of the Gangsters Act and
Section 27 of the Arms Act to run concurrently.
16.
When the prosecution is based on single transaction
where it constitutes two or more offences, sentences are to run
concurrently.
constituting
Imposing separate sentences, when the acts
different
offences
form
part
of
the
single
transaction is not justified. So far as the benefit available
to
the accused to have the sentences to run concurrently of
several offences based on single transaction, in V.K. Bansal vs.
State of Haryana & Anr. (2013) 7 SCC 211, in which one of us
13
Page 13
(Justice T.S. Thakur) was a member, this Court held as
under:-
“... 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.”
17.
This Court in the case of Mohd. Akhtar Hussain
alias Ibrahim Ahmed Bhatti vs. Asstt. Collector of Customs
(Prevention)
Ahmedabad
and
Anr.,
(1988)
4
SCC
183,
recognized the basic rule of conviction arising out of a single
transaction justifying the concurrent running of the sentences.
The following passage in this regard is relevant to be noted :-
“The basic rule of thumb over the years has been
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.”
In Manoj alias Panu vs. State of Haryana, (2014) 2 SCC 153,
the Bench followed Mohd. Akhtar Hussain’s case.
14
Page 14
18.
While referring the matter to a larger Bench, the
Bench observed that in Mohd. Akhtar Hussain’s case, Section
31 Cr.P.C. was not noticed by this Court.
It is to be pointed
out that in Mohd. Akhtar Hussain’s case and Manoj’s case, the
appellants who were convicted for different counts of offences
arose out of a single transaction, favouring the exercise of
discretion to the benefit of the accused that the sentences
shall run concurrently. Those decisions are not cases arising
out of conviction at one trial of two or more offences and
therefore, reference to Section 31 Cr.P.C. in those cases was
not necessitated.
19.
As pointed out earlier, Section 31 Cr.P.C. deals with
quantum of punishment which may be legally passed when
there is - (a) one trial and (b) the accused is convicted of two
or more offences. Ambit of Section 31 is wide, covering not
only single transaction constituting two or more offences but
also offences arising out of two or more transactions. In the
two judgments in Mohd. Akhtar Hussain and Manoj (supra),
the issue that fell for consideration was the imposition of
sentence for two or more offences arising out of the single
15
Page 15
transaction. It is in that context, in those cases, this Court
held that the sentences shall run concurrently.
20.
Under Section 31 Cr.P.C. 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 Cr.P.C. 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
16
Page 16
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 earlier judgment in Mohd. Akhtar Hussain
and Section 31 Cr.P.C.
22.
Having answered the reference, the merits of the
matter can be gone into by the referring Bench; but we
consider it appropriate to dispose of the appeal itself to avoid
any further delay. Adverting to the present case, the learned
counsel for the appellant contended that the facts and
circumstances of the case were not kept in view to invoke the
discretion for concurrent running of sentences. It was
submitted that appellant is employed in Gulf countries and
between 1988–1996, the appellant visited India only four times
and there could not have been any continuous harassment on
his part and in the said facts and circumstances of the case,
the trial court and the High Court ought to have judiciously
exercised their discretion in directing sentences to run
concurrently and therefore,
prayer for intervention of this
Court was made.
17
Page 17
23.
The trial court directed the sentences imposed on
the appellant/accused under Sections 498A and 306 IPC to
run consecutively, which was affirmed by the High Court.
When the trial court declines to exercise its discretion under
Section 31 Cr.P.C. in issuing direction for concurrent running
of sentences, normally the appellate court will not interfere,
unless the refusal to exercise such discretion is shown to be
arbitrary or unreasonable. When the trial court as well as the
appellate court declined to exercise their discretion, normally
we would have refrained from interfering with such direction of
the courts for consecutive running of sentences.
But in the
facts and circumstances of the present case, in our view, the
sentences imposed on the appellant could be ordered to be run
concurrently.
At the time of marriage, the appellant was
employed as a Painter at Delhi and after marriage, it is stated
that the appellant had secured an employment in Gulf
countries and used to visit India once in two years only.
brought on evidence that in a period of eight
It is
years from
1988–1996, he came on leave to India for only four times and
finally
he
visited India while he was on leave during
January-February 1996. The appellant also appears to have
18
Page 18
taken efforts for mediation to settle the differences and the
mediation was scheduled to take place on 23.2.1996; but
Lillikutty committed suicide on the same day. Keeping in view
the totality of the facts and circumstances of the case, the
sentences
imposed
on
the
appellant
for
the
offences
punishable under Sections 498A and 306 IPC are ordered to
run concurrently and the appeal is disposed of with the above
modifications.
24.
The reference is answered accordingly and the
appeal allowed in part to the extent as indicated above.
..................................J.
(T.S. Thakur)
..................................J.
(Adarsh Kumar Goel)
..................................J.
(R. Banumathi)
New Delhi,
November 11, 2014
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