(PER: HON'BLE MR. JUSTICE V SRISHANANDA)
2. Revision petition is filed by accused No.3, who
3. Operative portion of the order of the learned
Furnish the copy of this judgment to the
offenders free of costs forthwith."
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4. Being aggrieved by the judgment of conviction
and order of sentence, accused No.3 preferred an appeal
before the District Court in Criminal Appeal No.90/2006.
The learned Judge in the First Appellate Court after
securing the records, heard the arguments in detail and
dismissed the appeal.
5. Being further aggrieved by the same, accused
No.3 has preferred the present revision petition.
6. Sri Kadloor Satyanarayanacharya, learned
counsel for the petitioner reiterating the grounds urged in
the revision petition, vehemently contended that the
Courts below have grossly erred in convicting the
accused/petitioner and improperly sentenced and thus,
revision petition needs to be allowed.
7. Per contra, learned High Court Government
Pleader supports the impugned judgments.
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8. After hearing the arguments of the parties at
length, Sri Kadloor Satyanaranacharya, learned counsel for
the revision petitioner would fairly submit before the Court
that on merits with regard to the proved offences and
having regard to the limited revisional scope, petitioner
may not have much to submit in regard to conviction of
revision petitioner. But on the question of sentence, this
Court has to clarify whether the sentences for all the
offences should run concurrently or consecutively as the
order of sentence has not mentioned anything specifically.
9. In this regard, learned counsel for the petitioner
would invite the attention of this Court to the judgment of
the Hon'ble Apex Court in the case of Sunil Kumar @
Sudhir Kumar and Another vs. State of Uttar Pradesh
reported in 2021 INSC 298 [Criminal Appeal
No.526/2021, disposed of on 25.05.2021]. The relevant
portions of the said judgment is culled out hereunder for
ready reference:
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"10. 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
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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."
10.1. 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
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such sentences include imprisonment
for life which can and must run
concurrently...."
10.2. 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.
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
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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. 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
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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.
17. 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
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for consecutive running of sentences awardable
by the Court of Sessions.
17.1. 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
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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.
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."
10. Per contra, learned High Court Government
Pleader while supporting the impugned judgments would
contend that whenever the learned Trial Magistrate does
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not specifically mention that the sentences should run
concurrently, it should be presumed that sentences should
run consecutively and therefore, the contentions urged on
behalf of the revision petitioner cannot be countenanced in
law and sought for dismissal of the revision petition.
11. Having heard the arguments of both sides, this
Court perused the material on record meticulously. On
such perusal of the material on record, the ingredients of
Sections 420, 465, 468, 471 read with Section 34 of IPC
stand established against the revision petitioner by placing
cogent and convincing evidence on record resulting in
conviction of the revision petitioner and other accused.
12. Learned Judge in the First Appellate Court even
after re-appreciation of the material on record did not find
any deficiencies in the prosecution evidence so as to annul
the finding of conviction. Therefore, confirmation of the
conviction of the revision petitioner is thus just and
proper. However, having regard to the scope of the
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revision petition, following the dictum of the Hon'ble Apex
Court in the case of Amit Kapoor vs. Ramesh Chander
and Another reported in (2012) 9 SCC 460, this Court
has to find out whether the sentence ordered by the
learned Trial Magistrate confirmed by the First Appellate
Court is appropriate in the facts and circumstances of the
case.
13. In the case on hand, as referred to supra, the
order of sentence passed by the learned Trial Magistrate is
silent with regard to the running of the sentence either
concurrently or consecutively. In this regard, Section 71
of IPC and Section 31 of the Code of Criminal Procedure
needs to be looked into. For ready reference, those
provisions are culled out hereunder:
"71 of IPC. Limit of punishment of
offence made up of several offences. -
Where anything which is an offence is made up
of parts, any of which parts is itself an offence,
the offender shall not be punished with the
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punishment of more than one of such his
offences, unless it be so expressly provided.
[Where anything is an offence falling within
two or more separate definitions of any law in
force for the time being by which offences are
defined or punished, or
where several acts, of which one or more
than one would by itself or themselves constitute
an offence, constitute, when combined, a
different offence,
the offender shall not be punished with a
more severe punishment than the Court which
tries him could award for any one of such
offences.]"
31 of Cr.P.C. 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
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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
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this section shall be deemed to be a single
sentence."
14. On careful reading of the above provisions, in
the light of the principles of law enunciated by the Hon'ble
Apex Court in the case of Sunil Kumar referred to supra,
it is exclusive discretion of the Court to order for sentence
either run consecutively or concurrently. Needless
emphasize that if the convicting Court is of the opinion
that the sentence has to run consecutively, proper reasons
must be supplied while passing the order of sentence.
15. In the case on hand, in the first place, the
learned Trial Magistrate has not assigned any reasons
whatsoever for running the sentences consecutively. The
order on sentence is dated 13.11.2006, wherein, the
learned Trial Magistrate is of the opinion that the offenders
have not only created forged, false and fake documents,
but also caused monetary loss to the Government and it is
nothing but an antisocial offence. Assuming that such a
finding has been recorded with necessary material on
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record, why the learned Trial Magistrate is intending to
grant an order of consecutive sentence is not forthcoming
on record.
16. It is settled principles of law and requires no
emphasis that every judgment must be supported by
proper reasoning, inasmuch as, reasoning is the heartbeat
of the judgment. When such reasons are tried to be culled
out from the order on sentence dated 13.11.2006, no
reason is forthcoming to infer that the learned Trial
Magistrate was of the opinion that the sentences should
run consecutively.
17. It is settled principles of law that when the
learned Trial Magistrate does not mention that the
sentences should run concurrently and leaves open
without expressing about the running of the sentence
either consecutively or concurrently, it should normally be
construed that sentences should run consecutively as is
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rightly argued by the learned High Court Government
Pleader.
18. In the case on hand, since there is no mention
explicitly as to running of the sentence by the learned Trial
Magistrate, which has not been adverted to by the learned
Judge in the First Appellate Court, which was the bounden
duty of the First Appellate Court, need has arisen for this
Court to consider whether the facts and circumstances of
the case on hand in respect of the proved offenses would
warrant ordering of the sentences to run consecutively.
19. With that limited extent, this Court perused the
material on record including the monetary loss that is said
to have been occurred to the Government on account of
the act attributable to the revision petitioner and other
accused, which has been repatriated by the accused
persons, especially the present revision petitioner, this
Court is of the considered opinion that in the facts and
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circumstances of the case, the sentence of imprisonment
for the proved offences need not run consecutively.
20. Accordingly, this Court is of the considered
opinion that the revision petitioner has made out a case
for modification of the sentence ordered by the learned
Trial Magistrate confirmed by the First Appellate Court to
the extent of the sentence of imprisonment to run
consecutively or concurrently. Hence, following:
ORDER
a) Revision petition is allowed in part.
b) While maintaining the order of conviction of
the revision petitioner for the offences
punishable under Sections 420, 465, 468,
471 read with Section 34 of IPC, the
sentence of imprisonment ordered by the
learned Trial Magistrate confirmed by the
First Appellate Court is hereby modified to
run concurrently.
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c) Revision petitioner is granted time till
30.06.2025 to surrender before the Trial
Court for serving the remaining part of the
sentence.
d) Ordered accordingly.
Sd/-
(V SRISHANANDA)
JUDGE
SRT
CT:PK
