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Supreme Court of India
Vicky @ Vikas vs State (Govt. Of Nct Of Delhi) on 31 January, 2020Author: R. Banumathi
Bench: R. Banumathi, A.S. Bopanna
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 208 OF 2020
(Arising out of SLP(Crl.) No.4201 of 2019)
VICKY @ VIKAS …Appellant
VERSUS
STATE (GOVT. OF NCT OF DELHI) …Respondent
JUDGMENT
R. BANUMATHI, J.
Leave granted.
2. This appeal has been filed by the appellant against the
impugned judgment dated 20.05.2016 passed by the High Court of
Judicature at Delhi in Criminal Appeal No.1496 of 2013, whereby
while dismissing the appeal filed by the appellant, the High Court also
dismissed his application to direct sentences awarded to him to run
concurrently.
3. Case of the prosecution in brief is that on 28.04.2011, at about
10:25 PM, the appellant along with co-accused Yamin @ Sohail
Signature Not Verifiedcommitted robbery upon the complainant Israr and took away
Digitally signed by
MADHU BALA
Date: 2020.01.31
16:01:47 IST
Reason: Rs.2700/- and the complainant’s mobile phone by inflicting injuries on
him with a knife. FIR No.67/2011 was registered against the accused
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for the occurrence on 28.04.2011 at 10.25 PM. After completion of
investigation, charge-sheet was filed against the accused. In the trial,
charges were framed against the appellant and the co-accused under
Sections 392, 394, 397 IPC read with Section 34 IPC. The appellant
pleaded not guilty and claimed trial.
4. Based on the evidence adduced by the prosecution, the trial
court convicted the appellant under Sections 392 and 394 IPC while
acquitting him of the charge under Section 397 IPC. The trial court
sentenced the appellant to rigorous imprisonment for a period of
seven years and a fine of Rs.10,000/- with default sentence of one
month in case of non-payment of fine and clarified that this sentence
will run consecutively to the sentence imposed on the appellant in FIR
No.64/2011 under Sections 392, 397, 411 IPC read with Section 34
IPC.
5. In appeal, vide the impugned judgment, the High Court opined
that the conviction recorded by the trial court is based upon fair
appraisal of evidence and warrants no interference. As to the prayer
of the appellant directing sentences to run concurrently, the High
Court observed that the appellant is involved in sixteen criminal
cases, he is a habitual hard core criminal and in the instant case, not
only was the victim robbed of valuable articles but also inflicted with
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grievous injuries on his body. The High Court thus rejected the prayer
that both the sentences in FIR No.64/2011 and FIR No.67/2011 to run
concurrently.
6. By order dated 26.04.2019, we had already held that we are not
inclined to interfere with the verdict of conviction of the appellant and
also the quantum of sentence imposed upon him. The instant appeal
is confined to the appellant’s prayer seeking concurrent running of
sentences imposed upon him.
7. The appellant faced trial in various cases and has been
convicted in number of cases. Mr. Anish Kumar Gupta, learned
counsel appearing for the appellant-accused has collected the details
from the Assistant Superintendent, Central Jail-13, Mandoli. By order
dated 13.12.2019, we have called for details of the cases pertaining
to the appellant from the Director General (Prison). Accordingly, the
Superintendent, Central Jail No.13 has sent the status report
containing the details of the cases in which the appellant is convicted
and the sentence of imprisonment imposed upon him and the period
of sentence undergone by him.
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Case No. Details of Court Conviction and Sentence
Date of Sentence undergone as
Conviction well as pending
and in which
cases
FIR No.64/2011 ASJ, Rohini Section 394/397 IPC Sentence
PS – Bhalswa Courts, Delhi Sentenced to R.I. for 10 completed
Dairy Date of conviction years + Rs.10,000/- fine (Sentence in
– 02.06.2012 default of fine is
remaining)
FIR No.67/2011 ASJ, Rohini Section 392/394 IPC Currently serving
SC No.58/2011 Courts, Delhi Sentence to R.I. for 7 sentence.
Date of conviction years + Rs.10,000/- fine As of 11.12.2019,
– 28.07.2012 in default for one month he has undergone
01 year 04
months and 28
days. During trial, he was
inside for 01 year
02 months and 17
days from
10.05.2011 to
27.07.2012.
FIR No.263/2009 CMM, Tis Hazari Section 394 IPC Sentence will
PS – Janakpuri Courts, Delhi Sentenced to R.I. for 4 commence after
Date of conviction years completion of
– 09.09.2013 sentence in case
FIR No.67/2011
FIR No.601/2007 MM, Rohini Section 353/365/506 Convict was inside
PS – Model Courts, Delhi IPC from 04.12.2013 to
Town Sentence to the period 16.09.2014.
already undergone
FIR No.234/2012 MM, Tis Hazari Section 20/61/85 of Convict was inside
PS – Subzi Courts, Delhi NDPS Act from 04.12.2013 to
Mandi Sentence to the period 15.09.2015.
already undergone
8. As per the Status Report filed by the DGP on 16.01.2020, the
appellant is presently undergoing rigorous imprisonment for seven
years awarded to him in the case in FIR No.67/2011. As seen from
the above, as on 11.12.2019, the appellant has undergone actual
sentence of 01 year 04 months and 28 days and has earned
remission of 6 days. During trial of the case in FIR No.67/2011, the
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appellant was in custody for 01 year 02 months and 17 days from
10.05.2011 to 27.07.2012. It has been stated that the sentence in the
case in FIR No.67/2011 started w.e.f. 02.10.2019 after expiry of
previous sentence of 10 years’ rigorous imprisonment in the case in
FIR No.64/2011. This sentence of imprisonment of ten years in the
case in FIR No.64/2011 was completed on 01.10.2019. In the case in
FIR No.263/2009, the appellant is also convicted and sentenced to 4
years’ rigorous imprisonment under Section 394 IPC vide order dated
09.09.2013 in the case in FIR No. 263/2019. This sentence would
commence after completion of sentence running in the case in FIR
No. 67/2011. Further on 16.09.2014, the appellant was convicted in
the case in FIR No.601/2007 under Sections 353, 365 and 506 IPC.
On 15.09.2015, he was convicted under Sections 20, 61 and 85 of
NDPS Act in the case in FIR No. 234/2012. However as noted above,
in both these cases – FIR No.601/2007 and FIR No.234/2012, he was
sentenced to the period already undergone, i.e. judicial custody from
04.12.2013 till the date of decision in these cases.
9. The point falling for consideration is whether the sentence of
imprisonment in the cases in FIR No.64/2011, FIR No.67/2011 and
FIR No.263/2009 are to be ordered to run concurrently. We are
conscious that the case in FIR No.263/2009 is not before us.
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However, considering the facts and circumstances of the case and
the family background of the appellant and with a view to give quietus
to the matter, we have considered the case in FIR No.263/2009 also.
10. Section 427 Crl.P.C. deals with the situations where an offender
who is already undergoing a sentence of imprisonment is sentenced
to imprisonment on a subsequent conviction or imprisonment for life.
Section 427 Crl.P.C. provides that such imprisonment or
imprisonment for life shall commence at the expiration of the
imprisonment to which he has been previously sentenced unless the
Court directs that the subsequent sentence shall run concurrently with
such previous sentence. Section 427 Crl.P.C. reads as under:-
“427. Sentence on offender already sentenced for another offence.-
(1) When a person already undergoing a sentence of imprisonment is
sentenced on a subsequent conviction to imprisonment or imprisonment
for life, such imprisonment or imprisonment for life shall commence at the
expiration of the imprisonment to which he has been previously sentenced,
unless the Court directs that the subsequent sentence shall run
concurrently with such previous sentence:
Provided that where a person who has been sentenced to
imprisonment by an order under section 122 in default of furnishing
security is, whilst undergoing such sentence, sentenced to imprisonment
for an offence committed prior to the making of such order, the latter
sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life
is sentenced on a subsequent conviction to imprisonment for a term or
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imprisonment for life, the subsequent sentence shall run concurrently with
such previous sentence.”
11. We may refer to the decision of the Supreme Court in Mohd.
Akhtar Hussain alias Ibrahim Ahmed Bhatti v. Assistant Collector of
Customs (Prevention), Ahmedabad and Another (1988) 4 SCC 183,
wherein the Supreme Court recognised the basic rule of convictions
arising out of a single transaction justifying concurrent running of the
sentences. In Mohd. Akhtar Hussain, it was held as under:-
“10. The basic rule of thumb over the years has 7been 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.
……….
12. The submission, in our opinion, appears to be misconceived. The
material produced by the State unmistakably indicates that the two
offences for which the appellant was prosecuted are quite distinct and
different. The case under the Customs Act may, to some extent, overlap
the case under the Gold (Control) Act, but it is evidently on different
transactions. The complaint under the Gold (Control) Act relates to
possession of 7000 tolas of primary gold prohibited under Section 8 of the
said Act. The complaint under the Customs Act is with regard to smuggling
of gold worth Rs 12.5 crores and export of silver worth Rs 11.5 crores. On
these facts, the courts are not unjustified in directing that the sentences
should be consecutive and not concurrent.”
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12. After referring to Mohd. Akhtar Hussain and other cases, in V.K.
Bansal v. State of Haryana and Another (2013) 7 SCC 211, the
Supreme Court held 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 may have been filed. In V.K. Bansal, it was held as under:-
“14. We may at this stage refer to the decision of this Court in Mohd.
Akhtar Hussain v. Collector of Customs (1988) 4 SCC 183 in which this
Court recognised the basic rule of convictions arising out of a single
transaction justifying concurrent running of the sentences. ….”
15. In Madan Lal case (2009) 5 SCC 238 this Court relied upon the
decision in Akhtar Hussain case (1988) 4 SCC 183 and affirmed the
direction of the High Court for the sentences to run concurrently. That too
was a case under Section 138 of the Negotiable Instruments Act. The
State was aggrieved of the direction that the sentences shall run
concurrently and had appealed to this Court against the same. This Court,
however, declined interference with the order passed by the High Court
and upheld the direction issued by the High Court.
16. In conclusion, 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.”
13. In V.K. Bansal, the appellant-accused was facing fifteen cases
and the Supreme Court has grouped fifteen cases into three different
groups:- (i) the first having twelve cases relating to advancement of
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loan/banking facility to M/s Arawali Tubes Ltd. acting through the
appellant thereon as Director; (ii) the second having two cases
relating to advancement of loan to the appellant M/s Arawali Alloys
Ltd. acting through the appellant as its Director; and (iii) the third
having a single case qua the criminal complaint by the State Bank of
Patiala. The Court directed that the substantive sentences within first
two groups would run inter-se concurrently. The Supreme Court
directed that the substantive sentences in first two groups and that in
respect of the case in the third group would run consecutively.
14. Following the decision in V.K. Bansal, in Benson v. State of
Kerala (2016) 10 SCC 307, the Supreme Court directed that the
sentences imposed in each of the cases shall run concurrently with
the sentence imposed in Crime No.8 which was then currently
operative. However, the Court held that the benefit of “concurrent
running of sentences” is granted only with respect of substantive
sentences; but the sentences of fine and default sentences shall not
be affected by the direction. The Supreme Court observed that the
provisions of Section 427 Crl.P.C. do not permit a direction for the
concurrent running of the default sentence for non-payment of fine.
15. Further, in the case of Anil Kumar v. State of Punjab (2017) 5
SCC 53, it was held by this court that “in terms of sub-section (1) of
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Section 427, if a person already undergoing a sentence of
imprisonment is sentenced on a subsequent conviction to
imprisonment, such subsequent term of imprisonment would normally
commence at the expiration of the imprisonment to which he was
previously sentenced. Only in appropriate cases, considering the
facts of the case, the court can make the sentence run concurrently
with an earlier sentence imposed. The investiture of such discretion,
presupposes that such discretion be exercised by the court on sound
judicial principles and not in a mechanical manner. Whether or not the
discretion is to be exercised in directing sentences to run concurrently
would depend upon the nature of the offence/offences and the facts
and circumstances of each case.”
16. The point falling for consideration is whether the case of the
appellant is a fit case for exercising the discretion in directing the
sentence of imprisonment to run concurrently with the sentence of
imprisonment imposed in the earlier case in FIR No.64/2011. Of
course, FIR No.64/2011, FIR No.67/2011 and FIR No.263/2009 relate
to different transactions. Since the appellant was already undergoing
imprisonment in FIR No.64/2011, in terms of Section 427 Crl.P.C.,
subsequent sentences shall run consecutively until and unless the
court specifically directs that they shall run concurrently.
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17. Coming to the facts of the instant case, we find that the
appellant is a young man with roots in his family. The appellant has
already undergone 10 years of imprisonment for conviction in FIR
No.64/2011. The appellant is currently undergoing imprisonment for
conviction in FIR No.67/2011 out of which he has already
undergone 01 year 06 months and 16 days as of 29.01.2020. As
per status report of the DGP (Prison), during the trial in FIR
No.67/2011, the appellant was in custody for 01 year 02 months and
17 days i.e. with effect from 10.05.2011 to 27.07.2012. If the
appellant is to undergo the sentences consecutively, the appellant
has to undergo another about five years plus four years of
imprisonment for the conviction in FIR No.263/2009.
18. Pursuant to the order dated 13.12.2019, the Probation Officer,
Department of Social Welfare, Govt. of NCT of Delhi had sent the
report dated 10.01.2020 stating the family background and also that
there is ample scope of improvement in the behaviour of the appellant
and that he may be given a chance for reformation and reintegration
with the family and the society. As per the report filed by the
Probation officer dated 10.01.2020, on visiting the residential address
of the appellant, it was found that his family is very poor and residing
in a 50 yard house for the last 20 years. The father of the appellant is
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58 years old, having ill health and the only bread winner in the family,
was working as carpenter. The mother of the appellant was suffering
from cancer and was not able to take treatment due to the poor
economic condition. The father of the appellant submitted that the
appellant was helping in his work before conviction. The elder sister
of the appellant is married, but since the last one and a half year, she
has been living in her maternal house due to domestic violence in her
in-laws’ house. On enquiring from neighbours, they reported in favour
of the appellant and his family. The family of the appellant expressed
positive attitude to be reunited with the appellant and desired to live a
normal social life. The appellant has full acceptance of his family and
the appellant has also shown keen interest and willingness to re-unite
with them.
19. Considering the report of the Probation Officer, illness of the
mother of the appellant, his family background, facts and
circumstances of the case and in the interest of justice, in our view,
this is a fit case for exercising discretion in directing the sentence of
imprisonment to run concurrently. Since the appellant has a poor
economic background, fine amount of Rs.10,000/- imposed on him
each in FIR No.67/2011 and FIR No.263/2009 are set aside and
therefore, the appellant need not to undergo default sentence of
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imprisonment. This order to run the sentence of imprisonment
concurrently has been made in the peculiar facts and circumstances
of the case and the illness of the appellant’s mother and hence, the
same may not be quoted as precedent in other cases.
20. In the result, the sentence of imprisonment imposed upon the
appellant in FIR No.64/2011, FIR No.67/2011 and FIR No.263/2009
are ordered to run concurrently. The fine amount of Rs.10,000/-
imposed on the appellant each in FIR No.67/2011 and FIR
No.263/2009 are set aside and therefore, the appellant need not to
undergo default sentence of imprisonment. The appellant has
already undergone rigorous imprisonment for ten years in FIR
No.64/2011 which is ordered to run concurrently with sentence of
imprisonment in FIR No.67/2011 and also the sentence of
imprisonment in FIR No.263/2009. The appellant is ordered to be
released forthwith. The appeal is, accordingly, disposed of.
………………………..J.
[R. BANUMATHI]
………………………..J.
[A.S. BOPANNA]
New Delhi;
January 31, 2020.
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