# BENSON v. STATE OF KERALA

- **Citation:** [2016] 8 S.C.R. 166
- **Court:** Supreme Court of India
- **Decided:** 2016-10-03
- **Case number:** Criminal Appeal No. 958of2016
- **Bench:** Dipak Misra, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/benson-v-state-of-kerala-31377
- **Pages:** 11

## Headnote

Code of Criminal Procedure, 1973 - s.42? - Concurrent
running of subsequent sentence with previous sentence - Appellant
charged of having committed various offences - Tried separately
and sentenced in each of the offences - Plea of appellant for
concurrent running of sentences - Held: Court has the power and
discretion to issue a direction that the subsequent sentence shall
run concurrently with the previous sentence - Whether or not a
direction ought to be issued in a given case would depend upon the
nature of the offence or offences committed and the fact situation -
On facts, sentence imposed on appellant in each of the present cases
to run concurrently with the sentence imposed upon the appellant
in another crime committed by him which is currently operative -
Howeve1; this benefit limited in respect of substantive sentences and
not on default sentences and sentences of fine.
Partly allowing the appeals, the Court
HELD: 1. In terms of sub-section (1) of Section 427 of
Cr.P.C., 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. Going by this normal principle, in the instance case
the sentence chart indicated in communication mentioned is quite
correct. However this normal rule is subject to a qualification
and it is within the powers of the Court to direct that the
subsequent sentence shall run concurrently with the previous
sentence. [Para 6][174-G-H; 175-A)
2. In the present case, the appellant stands convicted and
sentenced in 12 different matters including the present 4 matters.
The maximum sentence in respect of the present crimes is two
166
BENSON v. STATE OF KERALA
167
years' rigorous imprisonment. As per the record, these crimes A
were committed on the same day. Having considered the matters,
the sentences imposed in each of the present 4 cases (which
appear at serial nos.9, 10, 11 and 12 of the chart/communication
received from the Director General of Prisons & Correctional
Services) shall run concurrently with the sentence imposed in
8
crime no.8 which is currently operative. This benefit is granted
in respect of substantive sentences to the appellant but the
sentences of fine and the default sentences arc maintained. If
the fine as imposed is not deposited, the default sentence or
sentences are to run consecutively and not concurrently. [Paras
4, 9)174-A; 176-B-D]
C
V.K. Bansal v. State of Haryana (2013) 7 SCC
211 : :Z013 (7) SCR 617 - referred to.
Case Law Reference
2013 (7) SCR 617
referred to
Para 7

## Text

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[2016] 8 S.C.R. 166
BENSON
v.
STATE OF KERALA
(Criminal Appeal No. 958of2016)
OCTOBER 03, 2016
[DIPAK MISRA AND UDAY UMESH LALIT, JJ.]
Code of Criminal Procedure, 1973 - s.42? - Concurrent
running of subsequent sentence with previous sentence - Appellant
charged of having committed various offences - Tried separately
and sentenced in each of the offences - Plea of appellant for
concurrent running of sentences - Held: Court has the power and
discretion to issue a direction that the subsequent sentence shall
run concurrently with the previous sentence - Whether or not a
direction ought to be issued in a given case would depend upon the
nature of the offence or offences committed and the fact situation -
On facts, sentence imposed on appellant in each of the present cases
to run concurrently with the sentence imposed upon the appellant
in another crime committed by him which is currently operative -
Howeve1; this benefit limited in respect of substantive sentences and
not on default sentences and sentences of fine.
Partly allowing the appeals, the Court
HELD: 1. In terms of sub-section (1) of Section 427 of
Cr.P.C., 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. Going by this normal principle, in the instance case
the sentence chart indicated in communication mentioned is quite
correct. However this normal rule is subject to a qualification
and it is within the powers of the Court to direct that the
subsequent sentence shall run concurrently with the previous
sentence. [Para 6][174-G-H; 175-A)
2. In the present case, the appellant stands convicted and
sentenced in 12 different matters including the present 4 matters.
The maximum sentence in respect of the present crimes is two
166
BENSON v. STATE OF KERALA
167
years' rigorous imprisonment. As per the record, these crimes A
were committed on the same day. Having considered the matters,
the sentences imposed in each of the present 4 cases (which
appear at serial nos.9, 10, 11 and 12 of the chart/communication
received from the Director General of Prisons & Correctional
Services) shall run concurrently with the sentence imposed in
8
crime no.8 which is currently operative. This benefit is granted
in respect of substantive sentences to the appellant but the
sentences of fine and the default sentences arc maintained. If
the fine as imposed is not deposited, the default sentence or
sentences are to run consecutively and not concurrently. [Paras
4, 9)174-A; 176-B-D]
C
V.K. Bansal v. State of Haryana (2013) 7 SCC
211 : :Z013 (7) SCR 617 - referred to.
Case Law Reference
2013 (7) SCR 617
referred to
Para 7
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
958of2016.
From the Judgment and Order dated 16.09.2015 of the High Court
ofKerala at Ernakulam in Criminal Appeal No. 808 of2015
WITH
Criminal Appeal Nos. 957, 959 & 960 of2016.
Ranjith B. Marar, Ms. Lakshmi N. Kaimal and T. K. Babu, Advs.
for the Appellant.
G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Ms. Beena
Prakash, Manu Srinath and Ramesh Babu M. R., Advs. for the
Respondent.
The Judgment of the Court was delivered by
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UDAY UMESH LALIT, J. I. Leave granted. These appeals . G
by Special Leave arise out of judgments and orders passed by the High
Court of Kerala in Criminal Revision Petition Nos. (i) 808 of 2015 on
16.09.2015, (ii) 859of2015 on 16.09.2015, (iii) 858of2015 on 14.09.2015
and (iv) 670of2015 on 17.09.2015.
H
168
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
2. On the allegation that the appellant was involved in committing
thefts he was charged of having committed offences on different
occasions and was separately tried in i) CC No.158 of 2004 before
Judicial Magistrate First Class, Chavakkad for offences punishable under
Section 379, 414 read with 34 !PC, ii) CC No.1039 of2003 by Judicial
B
Magistrate First Class, Chavakkad for offences punishable under Section
379, 414 read with 34 !PC, iii) CC No.390 of2004 by Judicial Magistrate
First Class, Chavakkad for offences punishable under Section 3 79, 414
read with 34 !PC and (iv) CC No.1168 of2006 by Judicial Magistrate
First Class, Kunnamkulam. By separate judgments, the appellant was
convicted and sentenced in each of the aforesaid crimes. The respective
C
appeals preferred by the appellant were dismissed by the Sessions Judge,
Thrissur. The appellant filed Criminal Revision Petitions in the High
Court which were also dismissed. The following chart would disclose
the relevant details:-
D
C.C.'.\'o,[
Date
Date
of
CrL Appeal
CrL
SLP
Offence
of
Conviction and
'.\'o.
R.P.
'.\'o.
occurrence
Sentence
by
'.\'o. in
Judicial
the
E
Magistrate
High
First Class
Court
15&2004
03.06.2003
28.06.06,
5312012
80R
SLP
in the Court
RI for 2 years decided on
2015
(Cr!.)
of Judicial
and
fine
of 15.11.2012
3757,'
Magistrate First
Rs.1,000/-
for by Sessions
2016
Class (in shon
offence u!s 379 Judge,
F
JMFC),
IPC and RI for 2 Thrissur
Chmkkad!
years u/s 414 ID
U/s 379, 414 ri\''
RI for 3 months
34 ofIPC
G
H
1039;2003
in the Court
ofJMFC,
Chavakkad/
U!s 379, 414 r;\v
34 of!PC
3902004
in the Court
of JMFC,
Chavakkadl
Uis 379, 414 r/w
34ofIPC
1168/2006
in the Court
ofJMFC,
Kunnamkulam!
U.s 379 r/w 34
of!PC
BENSON v. STATE OF KERALA
[UDAY UMESH LAUT, J.]
03.06.2003
28.06.06,
7592011
RI for 2 years decided on
and
fine
of 17.09.2012
Rs.l.OOO:-
for by Sessions
offence u!s 3 79 Judge,
!PC and RI for 2 Turissur
years for offence
u/s 414 !PC, ID
RI for 3 months.
03.06.2003
28.06.06,
7612011
RI for 2 years decided on
and
fine
of 04.08.2012
Rs.1,000.'-
for by Sessions
offence u:s 379 Judge,
!PC and RI for 2 Turissur
years u.!s 414 ID
RI for 3 months
03.06.2003
31.12.08,
46L201!
RI for 1 year decided on
and
fine
of 30.09.2011
Rs.1,000'- !D SI by Sessions
for 6months
Judge,
Tiuissur
859!
SLP
2015
(Cd.)
37591
2016
858.
SLP
2015
(CrL)
3758/
2016
670!
SLP
2005
(Cr!.)
3756/
2016
3. These matters came up on 22.04.20 I 6 when this Court noted
169
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the submissions of the learned counsel for the appellant regarding
concurrent running of sentences and issued notice to the State. The
learned counsel appearing for the State has produced before us
communication dated 27.05.2016 from the Director General of Prisons
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and Correctional Services, which is as under:-
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SUPREME COURT REPORTS
[2016) 8 S.C.R.
WPl-9606/2016
From
"PRISONS HEADQUARTERS,
THIRUVANANTHAPURAM
Dated: 27.05.2016
The Director General of Prisons &
Correctional Services.
To
The Law Officer,
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Office of the Resident Commissioner,
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Travancore Palace,
Kasturba Gandhi Marg,
New Delhi-110 001.
Sir,
SL
No.
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2
3
Sub: Prisons - Prisons Headquarters, Kerala - Supreme
Coui1 case - SLP (Crl) CRLMP No.6727/2016/Benson
vs. State of Kerala - reg.
Ref: Lr. No.38749/81/2016/Home dtd.19/05/2016
Attention is invited to the subject & reference cited.
I may furnish the details called for vide reference is noted
below:
Conviction Details
Case No., Court
Sentence Details
and Warrant Date
cc 613i03
Sentenced to undergo RI for3 years uis 379
JFCM I, Thrissur
IPC
Wdt.20-11-2003
Set off97 days. Atlarge bail period -153
days.
cc 533;04
Sentenced to undergo RI for 2 years ufs 392
JFMC II, Thrissur
IPC
Wdt.8-6-2005
Set off 521 days.
cc 529!04
Sentenced to undergo RI for 3 years ufs 392
JFMC II, Thrissur
IPC,
w dt.18-6-2005
Set off 493 days
4
5
6
7
8
9
10
11
12
BENSON v. STATE OF KERALA
[UDAY UMESH LAUT, J.]
CC 1270113 JFCM
Sentenced to undergo RI for 2 years +fine
Changanassery
Rs.50001- id SI for 1 month u/s 380 IPC, RI
Wdt.18-6-2005
for 2 years + fine Rs.5 ,000!- L'd SI for I
month uis 457 IPC (Concurrently) Set of 348
days
CC 1115103 JFCM
Sentenced to undergo RI for 2 years +fine
Irinjalakk11da
Rs.2,000/- i!d SI for 2 months u/s 379 IPC
Wdt. 4-7-2005
Set off 402 davs
cc 932105
Sentenced to undergo RI for 2 years +fine
JFMC Irinjalak11da
Rs-2,000,- L'd SI for 2 months 11's 379 IPC
Wdt.4-7-2005
Set off 465 days
cc 171105
Sentenced to widergo RI for 5 years u.s 392
ADSJ Adhoc II
!PC, RI for 3 years u/s 120(B) IPC
Kana yam
(ConC\llrently) Set off 418 days.
Wdt.25-11-2005
cc 274,06
Sentenced to undergo SI for 3 years us 205
JFCM Kodwigallur
!PC
Wdt.30-9-2008
Set off 414 days
cc 158/04
Sentenced to undergo RI for 2 years + fme
JF CM Cha va.kkad
Rs.1,000. - iid SI for 3 months u's 3 79 IPC,
w dt.28-6-2006
RI for2 years u·s 414 !PC (Concurrently)
Set off347 days
CC 1039'03 JFCM
Seutenced to undergo RI for 2 years .,. fine
Chavakkad
Rs.1,000- i'd SI for 3 months ws 379 !PC, RI
\Vdt. 28-6-2006
for 2 years u.'s 414 !PC (Concurrently)
Ser off 240 days
cc 39004
Sentenced to undergo RI for 2 years +fine
JFCM Chavakkad
Rs.1,000- i'd SI for 3 momhs 11s 379 IPC, RI
Wdr.28-6-2006
for 2 years ws 414 !PC (Concurrently) Set off
14ldays
cc 1168,06
Sentenced to undergo RI for 1 year t fine
JFCM
Rs.1,000 Ld SI for 2 months uis 379 r/w 34
Kunnamangalam
!PC Set off 14 days
Wdt.31-12-2008
171
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172
SUPREME COURT REPORTS
[20 I 6) 8 S.C.R.
A
Sentence Calculation
S.No.
Case No.
Sentence Calculation
1n Sentence Started
20-11-2003
B
1
cc 613/03
Sentence 3 years
19-11-2006
JFCM I, Thrissur
Set Off 9 7 days
14-08-2006
At large 153 days
14-01-2007
)
cc 533/04
2ui Sentence Started
14-01-2007
JFCM II, Thrissur
Semence 2 years
14-01-2007
Set off 521 days
12-08-2009
c
3
cc 529<04
3m Sentence Started
12-08-2009
JFCM II, Thrissur
Sentence 3 years
12-08-2010
Set off 49 3 davs
06-04-2009
4
CC 1270.'13 JFCM
4± Sentence Started
06-04-2009
Changanasseiy
Sentence 2 years
06-04-2011
D
Set off 348 days
23-04-2010
5
CC 115/03 JFCM
5± Sentence Started
23-04-2010
I
hinjalili:uda
Semence 2 vears
23-04-2012
E
Set off ~02 days
lS-03-2011
I 6
cc 932'05
6&. Sentence Staned
18-03-2011
I
JFCM Irinjalakuda
Sentence 2 yms
lS-03-2013
Set off 465 days
.
09-12-2011
7
SC 171/05
/t't. Sentence Started
09-12-2011
F
ADSJ Adhoc II,
Sentence 5 years
09-12-2016
Kottayam
Set off 418 days
18-10-2015
s
cc 27t06
Stt. Sentellce Staned
18-10-2015
JFCM Kodullgallur
Sentence 3 years
18-10-2018
Set off~ 14 days
30-08-2017
'
9
cc 1ss.o.i
9:: Sentence Stanrd
30-0S-~017
I
IF C ?>I C!ma:.;kad
Senteuce 2 wats
30-0S-~019
I
G
I I
Set off 34 7 davs
17-09-2018
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10
11
12
BENSON v. STATE OF KERALA
[UDAY UMESH LALJT, J.]
CC 1039/03 JFCM
1 OU: Sentence Started
Chavakkad
Sentence 2 years
Set off 240 days
cc 390/04
11 tl: Sentence Started
JFCM
Sentence 2 years
Chavakkad
Set off l·H days
cc 1168106
!2U: Sentence Started
JFCM
Sentence 1 year
Kunnamangalam
Set off 14 days
Fine Sentence
Details
17-9-201&
17-09-2020
21-01-2020
21-01-2020
21-01-2022
02-09-2021
02-09-2021
02-09-2022
19-08-2022
19-10-2022 (F4)
19-12-2022
(F5)
19-02-2023
(F6)
19-05-2023
(F9)
19-08-'.l023 (FlO)
19-11-2023
(11)
19-05-2024
tF12)
As per the records, he· wi II spend 12 years 3 months and 8
days in prison as on 31 /07/2016.
His date of expiry of substantive sentence falls on 19-082022 without any remission. He has already earned 3 years
I 0 months 27 days remission as on 26-05-16. He has to
pay fine ofRs.18,000/- in various cases in default he has to
undergo I year 5 months in Jail.
Yours faithfully,
Sd/-
Director General of Prisons &
Correctional Services"
173
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1-1
SUPREME COURT REPORTS
(2016) 8 S.C.R.
4. According to the aforesaid communication, the appellant stands
convicted and sentenced in 12 different matters including the present
matters which appear at Serial Nos.9, I 0, 11 and 12 in the chart. Going
by the sentence calculation, the sentence in the 9'h case would begin on
30.08.2017 and finally, the sentence in the J 2•h case, after getting all
benefits of set off, would be over on 02.09.2022.
5. Section 427 of the Code of Criminal Procedure, 1973 is as
under:-
"427. Sentence on offender already sentenced for
another offence. -(I) 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 imprisonment for
life, the subsequent sentence shall run concurrently with
such previous sentence."
6. In terms of sub-section (I) of Section 427, ifa person already
undergoing a sentence of imprisonment is sentenced on a subsequent
conviction to imprisonment, such subsequent tenn of imprisonment would
normally commence at the expiration of the imprisonment to which he
was previously sentenced. Going by this normal principle, the sentence
chart indicated in the communication dated 27.05.2016 is quite correct.
However this normal rule is subject to a qualification and it is within the
BENSON v. STATE OF KERALA
175
[UDAY UMESH LAUT, J.]
powers of the Court to direct that the subsequent sentence shall run
A
concurrently with the previous sentence.
7. In V.K.Bansal v. State of Haryww amt A11otl1er1 it was
stated by th is Court:
"It is manifest from Section 427(1) that the Court has the
power and the discretion to issue a direction but in the very
nature of the power so conferred upon the Court the
discretionary power shall have to be exercised along the
judicial lines and not in a mechanical, wooden or pedantic
manner. It is difficult to lay down any straitjacket approach
in the matter of exercise of such discretion by the courts.
There is no cut and dried formula for the Court to follow in
the matter of issue or refusal of a direction within the
contemplation of Section 427( I). Whether or not a direction
ought to be issued in a given case would depend upon the
nature of the offence or offences committed, and the fact
situation in which the question of concurrent running of the
sentences arises."
This Court then went on to club various crimes in respect of which
sentences were imposed upon the appellant therein in three groups; i)
the first having 12 cases, ii) the second having 2 cases and iii) the third
having a single case. This Court directed that substantive sentences
within first two groups would run inter se concun-ently and the substantive
sentences in first two groups and that in respect of the case in the third
group would run consecutively. The benefit was confined only in respect
of substantive sentences and no qua sentences in default.
8. We have gone through the record and considered rival
submissions. We do not find anything incorrect in the assessment made
by the Courts below and in our view the orders of conviction recorded
against the appellant in the present cases are quite correct. We also do
not find anything wrong in the quantum of sentence imposed in respect
of the respective crimes. However going by the sentence calculation,
the sentence imposed in respect of the first crime sta1ied with effect
from 20.11.2003 and the last sentence would be over by 19.08.2022,
which would effectively mean that the total length of sentences in
aggregate would be around 19 years. We are not concerned with first
1
(2013) 7 sec 211
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SUPREME COURT REPORTS
[2016] 8 S.C.R.
eight matters and sentences imposed in respect of those crimes. The
sentence in respect of 8'h crime is presently running against the appellant
and would be over on 30.08.2017.
9. The maximum sentence in respect of the present crimes is two
years' rigorous imprisonment. As per the record, these crimes were
committed on the same day. Having considered the matters, we deem it
appropriate to direct that the sentences imposed in each of the cases,
i.e. (i) CC No.158 of2004, (ii) CC No. I 039 of2003, (iii) CC No. 390 of
2004 and (iv) CC No. 1168 of 2006 namely those at Sl.Nos.9 to 12
respectively as indicated in the sentence chart in the communication
dated 27.05.2016 shall run concurrently with the sentence imposed in
Crime No.8 which is currently operative. We grant this benefit in respect
of substantive sentences to the appellant but maintain the sentences of
fine and the default sentences. If the fine as imposed is not deposited,
the default sentence or sentences will run consecutively and not
concurrently.
I 0. The appeals are thus allowed in part and the orders of sentences
stand modified accordingly.
Ankit Gyan
Appeals partly allowed.