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2024 DIGILAW 1012 (ALL)

Shamsher Ali v. State of U. P.

2024-04-09

JYOTSNA SHARMA

body2024
JUDGMENT : Jyotsna Sharma, J. 1. Heard Sri Rajiv Upadhyaya, Advocate holding brief of Ms. Sufiya Bano, learned counsel for the appellant and Sri L.D.Rajbhar, learned A.G.A. for the State. 2. This criminal appeal has been preferred by the appellant challenging the judgment and order dated 10.01.2014, passed by Addl. District and Sessions Judge, Bhadohi in S.T. No. 20 of 2011 (State Vs. Shamsher Ali) arising out of Case Crime No. 325 of 2010 under section 363, 366, 376 I.P.C. P.S. Gopiganj, District- Sant Ravi Das Nagar, Bhadohi, where appellant got convicted under sections 363, 366 and 376 I.P.C. and sentenced for seven years rigorous imprisonment each under sections 363 and 366 I.P.C. and for 10 years rigorous imprisonment under section 376 I.P.C. 3. The submission in brief of the appellant is that he has been awarded a substantive sentence of 7 years for an offence under section 363 I.P.C. and another substantive sentence of 7 years for an offence under section 366 I.P.C. and further substantive sentence of 10 years for the offence under section 376 I.P.C. The trial court did not specify whether such sentences shall run concurrently or consecutively. Resultantly, he is facing prospect of imprisonment of 24 years, which is too rigorous and severe. The sentencing part of the order of the trial court is therefore flawed. 4. Learned A.G.A. submits that section 31 Cr.P.C. provides that where accused is convicted at one trial of two or more offences and the trial court has not provided for concurrent running of sentences, it shall run consecutively i.e. one after the other. 5. During the course of arguments it is, however fairly admitted by the State that section 31 Cr.P.C. is subject to provisions of section 71 of I.P.C. and further that the proviso to section 31 (2) provides that in no case, shall such person be sentenced to imprisonment for a longer period than 14 years and that in this case, the aggregate punishment is 24 years. 6. Several important issues arise in this matter, first, whether the trial court can afford to not to mention how the sentences are to run, whether concurrently or consecutively. Secondly, whether the failure to mention the same is ignorable in view of the facts and circumstances of the matter. 6. Several important issues arise in this matter, first, whether the trial court can afford to not to mention how the sentences are to run, whether concurrently or consecutively. Secondly, whether the failure to mention the same is ignorable in view of the facts and circumstances of the matter. Related with this issue is the point that whether the court intended that the sentences should run consecutively and if so, whether or not such a presumption will lead to disproportionate period of imprisonment and against the provision of law as contained in section 31 (2) proviso (a). 7. The Hon’ble Apex Court in Mohd. Akhtar Hussain Alias Ibrahim vs Assistant Collector Of Customs 1998 AIR 2143, while allowing the appeal, observed that the basic rule of thumb over the years has been the so called principles of “single transaction rule” for concurrent sentence. The Court held as below: “2(i) The enormity of the crime committed by the accused is relevant for measuring the sentence. But the maximum sentence awarded in one case against the same accused is not irrelevant for consideration while giving the consecutive sentence in the second case although it is grave. The court has to consider the totality of the sentences which the accused has to under go if the sentences are to be consecutive. The totality principle has been accepted as correct principle for guidance. [753E.F] 2(ii) The broad expanse of discretion left by legislation to sentencing courts should not be narrowed only to the seriousness of the offence. No single consideration can definitively determine the proper sentence. In arriving at an appropriate sentence, the court must consider, and some times reject, many factors. The court must `recognise, learn to control and exclude' many diverse data.” 8. The Hon’ble Apex Court in Chatar Singh Vs. State of M.P. ( AIR 2007 SC 319 ), in Criminal Appeal No. 623 of 2005 decided on 24.11.2006, had a case before it in which the accused was convicted for several offences and was convicted for different period of imprisonment which added up to 28 years, if allowed to run consecutively. The Court observed in the light of provisions of section 31(2) proviso (a) as below: “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. The Court observed in the light of provisions of section 31(2) proviso (a) as below: “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." In view of the proviso appended to Section 31 of the Criminal Procedure Code, we are of the opinion that the High Court committed a manifest error in sentencing the appellant for 20 years' Rigorous Imprisonment. The maximum sentence imposable being 14 years and having regard to the fact that the appellant is in custody for more than 12 years. Now, we are of the opinion that interest of justice would be sub- served if the appellant is directed to be sentenced to the period already undergone.” 9. In O.M. Cherian @ Thankachan Vs. State of Kerela and Ors, AIR 2015 Supreme Court 303, decided on 11.11.2014, the Apex Court had a criminal appeal before it against a judgment where the trial court had ordered two years rigorous imprisonment under section 498 I.P.C. and further 7 years rigorous imprisonment under sections 306 I.P.C. and the substantive sentences were ordered to run consecutively. The Supreme Court observed in para 19, 20 and 21 as below: “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 transaction. It is in that context, in those cases, this Court held that the sentences shall run concurrently. 20. 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 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 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.” 10. The Supreme Court further observed that normally the appellate court do not interfere unless the discretion exercised is arbitrary or unreasonable. 11. The Supreme Court in Sunil Kumar @ Sudhir Kumar and Anr Vs. We also do not find any conflict in earlier judgment in Mohd. Akhtar Hussain and Section 31 Cr.P.C.” 10. The Supreme Court further observed that normally the appellate court do not interfere unless the discretion exercised is arbitrary or unreasonable. 11. The Supreme Court in Sunil Kumar @ Sudhir Kumar and Anr Vs. State of U.P. in Criminal Appeal No. 526 of 2021 decided on 25.05.2021 had a question on the point of sentence before it wherein the convict having convicted under sections 363, 366 376(1) I.P.C. had already undergone 13 years and two months of imprisonment and found that the decisions were silent on the point of concurrent or consecutive running of sentences and therefore, the convict faced a prospect of sentence of 22 years. In the above noted case, the Apex Court referred to the judgment given in Muthuramalingam & Ors. v. State: (2016) 8 SCC 313 (paragraph 28) and observed in para 11 as below: “11. 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 IPC 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 would run “concurrently” or they would run “consecutively”.” 12. 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”.” 12. The Apex Court further in para 12 and 13 observed that the court of first instance ought not to leave the matter of consecutive or concurrent running of sentences for deduction at latter stage and that there is yet another obligation on the trial court that is to state the order i.e. the sequence in which the consecutive sentence ought to be executed. In the end the Apex Court discussing about Nagaraja Rao v. Central Bureau of Investigation (2015) 4 SCC 302 , held in para 21 as below: “21. 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.” 13. While referring to a number of judicial pronouncements in the matter of sentence, the High Court in Yogesh Kumar Vs. State of Punjab and Another, in CRR No. 3415 of 2019 with connected matters decided on 01.06.2022, has observed in para-35 as below: “35. Thus, while applying the aforesaid principles of law, it would also be essential to balance the principle of sentencing in a manner that would restore faith of people in the system of administration of criminal justice and that the judicial process is not seen siding with an accused. The sentence imposed must not seem to be a flea-bite sentence, a phrase aptly used by the Hon'ble Supreme Court in the matter of "Suganthi Suresh Kumar versus Jagdeeshan" reported as (2002) 2 Supreme Court Cases 420. The sentencing must not only show reformatory and reprimanding aspect, but must also take the retributive aspect into consideration. The sentence imposed must not seem to be a flea-bite sentence, a phrase aptly used by the Hon'ble Supreme Court in the matter of "Suganthi Suresh Kumar versus Jagdeeshan" reported as (2002) 2 Supreme Court Cases 420. The sentencing must not only show reformatory and reprimanding aspect, but must also take the retributive aspect into consideration. Where the violator of law has displayed lack of bona fide and his culpability stands duly established, the Court has to keep in mind that the sentence so imposed should not appeared to be lenient or fail to display any deterrent effect. It cannot be the object of law or the philosophy behind imposing of sentence that the same promotes violation or makes a violator-convict believe that he 40 of 53 CRR No. 3415 OF 2019 (O&M) & connected cases -41- may commit multiple offences and thereafter seek concurrent running of the sentences. A transaction in the nature of issuance of multiple cheques towards discharge of one single liability has a potential of great misuse on either sides and just as it may incite an accused to swell his liability and to not pay the same despite issuance of multiple cheques, at the same time, there is immense possibility that the creditor secures multiple cheques for each installment and lodges different complaints against default of each cheque and claim consecutive running of sentences in each of the said cases to seek confinement of a defaulter in custody for an indefinite period. The crucial test thus is the similarity of the transaction and not the quantum of the money involved. A Court is thus required to maintain a fine balance by imposing a sentence so that the reformatory, retributive and deterrent effects are balanced well.” 14. Now, coming to the instant case, the appellant has confined his arguments on the sentencing part only, submitting that the accused has been convicted for an offence under sections 363 and 366 I.P.C. both and that that he has been sentenced for 7 years in each one of them. Now, coming to the instant case, the appellant has confined his arguments on the sentencing part only, submitting that the accused has been convicted for an offence under sections 363 and 366 I.P.C. both and that that he has been sentenced for 7 years in each one of them. It may be noted that section 366 I.P.C. includes the ingredients of section 363 I.P.C. Section 363 I.P.C. punishes a person who kidnaps the victim from lawful guardianship and the maximum punishment provided in this section is seven years while section 366 I.P.C. punishes a person who has kidnapped or abducted a woman with certain intent and in such case, the punishment provided is 10 years. Section 366 I.P.C. is a graver version of section 363 I.P.C. 15. There are no such facts or circumstances mentioned in the judgment to justify the award of maximum term of punishment under sections 363 I.P.C. or 366 I.P.C. Definitely the court is vested with power to award maximum term of punishment but that power is to be exercised in a judicious manner. 16. Moreover, the section 363 and 366 I.P.C. pertains to one transaction only and it does not appeal to reason that two separate sentences be provided which should run consecutively by default. The approach of the court has not been judicious to that extent. The accused has further been convicted for offence under section 376 I.P.C. and sentenced to 10 years of rigorous imprisonment. Incidently, it may be noted that 10 years have already elapsed, a fact which has been admitted by the State. Further it may be noted that if all the sentences are allowed to run consecutively, the proviso to section 31 Cr.P.C. shall stand flouted. 17. I went through the judgment to fathom the facts and circumstances and the gravity of the matter which may justify the running of consecutive sentences but found none. In my opinion, the sentencing part of the order is flawed on two counts, first that it is against the provisions of section 31 Cr.P.C. and that the learned trial court has overlooked the legal obligation to expressly provide for whether the sentences shall run concurrently or consecutively. 18. In my opinion, the sentencing part of the order needs to be suitably modified in the manner as below: 19. 18. In my opinion, the sentencing part of the order needs to be suitably modified in the manner as below: 19. The terms of imprisonment awarded by the trial court for each one of the offences i.e. section 363, 366 and 376 I.P.C. are upheld and that all the sentences shall run concurrently. 20. Accordingly this appeal is disposed of. 21. A copy of the order shall be immediately transmitted to the trial court concerned for necessary action.