Hanging and Strangulation: A medico-legal analysis

Principle of Concurrent and Consecutive Sentence in

                                          Indian law: An Evolution                                                                                                                                              *Ms. Simran

Every country has its own criminal justice system to control its society. Some countries focus on giving punishment to the offender for his offence, and some countries focus on the rehabilitation of the offender.  Punishing the offender is a primary function of all civil States. According to H.L.A Hart with Mr Bean and Professor Flew punishment has five elements:

1. It involves pain or other consequence normally considered unpleasant.
2. It must be for an offence against legal rules.
3. It must be an actual or supposed offender for his offence.
4. It must be intentionally administered by human beings other than the offender.
5. It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.

The concept of punishment is that of inflicting some sort of pain on the offender for his violation of the law. This is an instrument of public justice. The purpose of punishment is if somebody has already committed a crime or an offence and he has already gone through the punishment so he will be scared to do any offence or crime again because that will give him a punishment again for that offence. Other people who are living presently will be seeing punishment given to others so that they will not commit any crime and that prevent people from doing any crime.  If punishment is there for an act then citizens will become aware that they can be punished for their actions and they will not do that. 

 CONVICTION AND SENTENCE

In simple terms, a conviction is a verdict that usually results when a court of law finds an accused guilty of a crime. After an accused is convicted, the court determines the appropriate sentence as a punishment.

When a court, after considering the entire evidence adduced before the court and accepted by the court comes to a conclusion as to the guilt or innocence of the accused, then the court declares the findings as to what charges the accused is found to be guilty and for what other charges acquitted. This act of announcing the guilt of the accused is known as a conviction.

 A sentence is a distinct act of awarding the punishment. The sentence means punishment and it always follows the conviction. The court cannot order a Sentence unless the person has been found guilty or convicted. Therefore, a Conviction must precede a Sentence.

Thus, the term sentence is judicial determination and pronouncement of a punishment to be imposed on a person convicted of a crime. A Sentence may take various forms. Besides imprisonment, it also includes the payment of fines, community service, restitution, rehabilitation programs, life imprisonment and probation, or in the case of serious crimes, the death penalty. Persons convicted of minor crimes generally serve a short term in prison and/or are ordered to pay fines. Further, in cases where the accused does not have a history of committing crimes, a term of probation may be ordered by the court.

Under section 235(2) Cr.Pc (trial before the court of sessions) and section 248(2) Cr.Pc(trial in warrant cases) an opportunity of pre-sentence hearing is provided to a convicted person.

In Tarlok Singh v. State of Punjab, AIR 1977 SC 1747, it was observed that section 235 (2) makes a departure from the previous code on account of humanist consideration to personalize the sentence to be awarded, the object being to give e fresh opportunity to the convicted person to bring to the notice of the court such circumstances as may help the court in awarding an appropriate sentence having regard to the personal, social and other circumstances of the case.

In Santa Singh v. State of Punjab, AIR 1976 SC 2386, SC has held that the court must in the first instance deliver a judgment convicting or acquitting the accused. If the accused is acquitted, no further question arises, but if he is convicted, the court has to hear the accused on the question of sentence and then pass a sentence on him according to the law.

CONCURRENT AND CONSECUTIVE SENTENCE

When a person is accused of committing a number of offences, a charge with respect to each of such offences will be framed against him and he has tried accordingly and awarded a sentence for each of the offence. If the punishment is concurrent, the sentence for each of the offences commences simultaneously but if the punishment is consecutive, the accused is liable to undergo the sentence one after the other.

 Section 31 of Criminal Procedure Code:  Sentences in cases of conviction of several offences at one trial.

The rules for assessing punishment are laid down in this section and in Sections 71 and 72 of the Indian Penal Code (IPC).

 Section 71 of IPC: If the case is governed by the sub-section (1) of Section 71, IPC, the sentence can be awarded in respect of one offence only. But, if the case falls under sub-section (2) of the section, the limitation is that “the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offence”.  The sentences may be awarded in respect of both offences, but the aggregate of such sentences should not be more than what could be awarded under any of the two offences.

 Section 31 of Cr.Pc: This section does not embrace the case of separate trials held on the same or subsequent days for separate offences committed by the same accused person. It covers only the conviction of the same accused of two or more offences at one trial. This section does not control sentences passed at different trials.

Where an accused person is convicted at one trial of two or more offences not being parts of the same transaction, that a separate sentence should be passed for each offence, regard being had to the provisions of this section, so that if the conviction in respect of that offence only goes. When a person is tried for an offence and convicted, the Court has to impose on him such sentence as is prescribed under the law.

    The normal rule is that the sentences should be consecutive and they may be made to run concurrently only if there is some reason. Whether the sentences should run consecutively or concurrently is left to the discretion of the Court, but the Court must exercise its discretion judiciously. It must not exercise it arbitrarily and must not on every occasion blindly order the sentences to run concurrently as if there were no alternative. This section does not authorize any Court to direct that two or more sentences shall run concurrently except the sentences passed at the same trial.

 Gagan Kumar v The State of Punjab in Criminal Appeal No. 266 of 2019, delivered on February 14, 2019, SC has held that it is a mandatory legal requirement for Magistrate to specify whether sentences awarded to an accused convicted for two or more offences, would run concurrently or consecutively. This has to be complied with. The appellant was prosecuted and convicted for the offences punishable under Sections 279 and 304-A of the IPC by the JMIC, Jalandhar. The sentence awarded Under Section 279 was to undergo rigorous imprisonment for six months and under Section 304-A, to undergo rigorous imprisonment for two years. The appellant contends that the Judicial Magistrate while passing the order of sentence erred in not mentioning therein as to whether the two punishments awarded to the appellant under Section 279 and Section 304-A IPC would run concurrently or consecutively. Session Court dismissed the appeal and the High Court of  Punjab& Haryana dismissed the revision petition against the order of the magistrate. Allowing the appeal, SC ruled that both the aforementioned sentences awarded by the Magistrate to the appellant would run "concurrently".

Under the law, there can be no question of a concurrent sentence of fine. Every sentence of fine that is imposed on any court has to be a separate liability on the convicted person, and the whole fine is payable. This section does not expressly refer to substantive sentences of imprisonment but it must be read with section 64 of IPC, which clearly contemplates that when imprisonment in default of payment of a fine is ordered, the imprisonment shall be more than any other imprisonment the accused may have been sentenced.  The provision for the passing of concurrent sentences refers to substantive sentences only and not to sentences of imprisonment in default of payment of the fine. Concurrent running of sentences is confined to cases where the punishment consists of imprisonment. In terms, it does not cover cases of sentences of imprisonment imposed for default in payment of fine.

            Sharad Hiru Kolambe v. State of Maharashtra, AIR 2018 SC 4595 the Ssupreme Court has held that

1. Default sentences for nonpayment of fine cannot be ordered to run concurrently. Default sentences should not be merged with or allowed to run concurrently with a substantive sentence. Thus, a sentence of imprisonment for non-payment of fine would be in excess of or in addition to substantive sentence to which offender may have been sentenced or to which he may be liable under a commutation of a sentence.

2.         Unless Court directs that punishments for such two or more offences at the same trial should run concurrently, the normal principle is that punishments would commence one after expiration of the other.

 Where the accused is sentenced to imprisonment for life and also to imprisonment for life and also to imprisonment for a certain term, the provisions of this section or section 427 Cr.Pc does not apply as such, but the principles underlying the same will provide the basis for an appropriate order. When a person is sentenced to imprisonment for life, it cannot be conceived that he shall be made to undergo sentences for various terms of imprisonment after serving the life sentence. The two sentences should, therefore, run concurrently.

Limit of maximum terms of punishment under this section: Sentences of imprisonment may be accumulated beyond the term of 14 years. The limit of 14 years has reference only to sentences to be passed simultaneously at one trial or passed on charges tried simultaneously.  Proviso (a) of this section aims at is the prohibition of giving consecutive sentences in one trial beyond the period of 14 years. If the sentences given in respect of two or more convictions in one trial are directed to run concurrently instead of consecutively and the period of concurrent sentences does not exceed fourteen years.

Proviso (b) – Limit of twice the amount of punishment:  Where a person accused of several offences on the same kind is tried for each of such offences separately by a Magistrate, the aggregate punishment for which such Magistrate can inflict on him in respect of such offences is not limited to twice the amount which he is by his ordinary jurisdiction competent to inflict but such magistrate can inflict on him for each offence the punishment which he is by his ordinary jurisdiction competent to inflict.

It is only to the purpose of appeal that consecutive sentences are allowed to be treated as one sentence.

Nagaraja Rao v. Central Bureau of Investigation, (2015) 4 SCC 302, the Apex Court has held, “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."

*          O.M.Cherian v. State of Kerala, reported in (2015) 2 SCC 501, the Apex Court has held that section 31 CrPC 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 offences". In section 31 (1) CrPC, since the word "may" is used, 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 provisos (a) and (b) of section 31(2) 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. However, the "fourteen years’ rule" contained in clause (a) of the proviso to section 31 (2) does not apply to a sentence of imprisonment for life, since imprisonment for life means the convict will remain in jail till the end of his normal life. The ambit of section 31 is wide, covering not only a single transaction constituting two or more offences but also offences arising out of two or more transactions.

Thus, from a reading of the law laid down by the Apex Court, it is clear that under Section 31 the Trial Court has full discretion to order sentences to run concurrently or consecutively in cases of conviction for 2 or more offences.

Section 427. Sentence on offender already sentenced for another offence.

 If 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. If no such indication is given, the sentence shall run consecutively.

Sub-section (1) contemplates a sentence anterior in time to the one which a person is undergoing and also a subsequent conviction. It does not say that the sentence of imprisonment which is accused is already undergoing should have been awarded on a different day and not the same. A sentence passed operates and takes effect immediately on conviction. Where therefore an accused is convicted in two cases on the same day, he will be deemed to be undergoing sentence awarded to him earlier on the same day when the order in the second case is passed, and the Magistrate will have jurisdiction to make the sentence concurrent under sub-section(1). 

The proviso of sub-section (1) provides where the accused was convicted for an offence committed before the passing of the order under section 122 of Cr.Pc and sentenced to pay a fine and in default, to three months’ rigorous imprisonment, the fine not having been paid, the three months’ imprisonment must run from the expiry of the order of detention passed under Section 122 for, under section 64, IPC, the imprisonment in default of payment of fine is to be more than any other imprisonment to which he may have been sentenced.

Muthuramalingam v. State Rep. By Insp. of Police (SC)(Constitution Bench), AIR 2016 SC 3340.

Following principles have been laid down by the Constitution Bench of the SC:

1. If more than one life sentence is awarded to the prisoner court has to direct the same to run concurrently. That is because the sentence of imprisonment for life means imprisonment till the normal life of a convict.

2. However, if an offender is awarded life imprisonment and also term imprisonment, Section 31 of Cr.Pc permits consecutive running of sentences - Prisoner shall first undergo the term sentence before the commencement of his life sentence.

3. Section 31 of Cr.PC is attracted only in cases where two essentials are satisfied viz. (1) a person is convicted at one trial and (2) the trial is for two or more offences. Punishments, when imposed, shall commence one after the expiration of the other in such order as the Court may direct unless the Court in its discretion orders that such punishment shall run concurrently.

4. Section 31(1) of Cr.PC permits the consecutive running of sentences only if such sentences do not happen to be life sentences.

5.         While multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively. Such sentences would, however, be superimposed over each other so that any remission or commutation granted by the competent authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other.

            Sub-Section (2): The meaning of the term “shall run concurrently” is plain. The law lays down that under the circumstances in this matter the subsequent sentence has to run concurrently. When sub-section (2) of section 427 applies, no Court or an executive authority can ignore to issue direction in its term. The provision is the command of the Legislature for the issue of a direction for the concurrent running of the subsequent sentence of imprisonment for life with the previous sentence of imprisonment for life.

The Apex Court in the case of Ranjit Singh v. U. T. of Chandigarh reported in AIR 1991 SC 2296 while interpreting section 427 (2) applied the logic that as the earlier sentence of imprisonment for life being understood to mean as a sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence of a subsequent conviction of imprisonment for a term of imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter of anyone is beyond human right.

Hanuman v. State of Maharashtra, (Bombay) (DB) (Nagpur Bench), 2019(5) MLJ (Cri) 125

In this petition, the petitioner a life convict for the offence punishable under section 302 of IPC has sought relief under section 427 (2). While undergoing the sentence of life imprisonment, the petitioner was released on parole but he failed to surrender to the jail authorities on the scheduled date. Therefore, an offence punishable under section 224 of IPC was registered against him and he was sentenced to undergo rigorous imprisonment for one year. JMIC did not consider the provision of section 427 (2). Therefore, the petitioner has sought his entitlement under the aforesaid section.

It has been held that the petitioner is entitled to the benefit of section 427 (2) as this section confers a statutory right on a convict. Allowing the writ, the court held that rigorous imprisonment of one year awarded to the petitioner under section 224 of IPC shall run concurrently with a sentence of life imprisonment, which he is presently undergoing.

Reference:

 1.     Bare act of Criminal Procedure Code https://legislative.gov.in/sites/ default/ files/A1974-02.pdf

2. https://www.casemine.com/search/in/consecutive%2Bor%2Bconcurrent%2 Bsentences

3.     https://www.thehindu.com/news/national/Multiple-life-term-will-run-concurrently-not-consecutively-SC/article14497740.ece/amp/

4.     https://indianexpress.com/article/cities/mumbai/court-can-make-two-sentences-consecutive-or-concurrent-says-hc/lite/

5.     https://www.livelaw.in/amp/news-updates/section-427-crpc-sentence-of-escaped-life-convict-will-not-run-concurrently-karnataka-high-court-189001

6.     https://www.scconline.com/blog/post/tag/section-427-crpc/

7.https://www.latestlaws.com/amp/latest-news/hc-explains-scope-of-s-427-crpc-applicable-only-if-person-is-already-undergoing-imprisonment-when-convicted-subsequently

 

*Student of final year of LL.B final year, Department of laws, Panjab  

  University Chandigarh.