NAGARAJA RAOversusCENTRAL BUREAU OF INVESTIGATION

                         [2015] 12 S.C.R. 424


A                          NAGARAJA RAO
                                   V.

              CENTRAL BUREAU OF INVESTIGATION
                 · (Criminal Appeal No. 104 of 2015)
B
                         .JANUARY 16, 2015
         [FAKKIR MOHAMED IBRAHIM KALIFULLA AND
                  ABHAY MANOHAR SAPRE, JJ.]
C          Code of Criminal Procedure, 1973 - s.31 -Accused
     convicted of several offences at one trial - Power of the Court
     to award sentence - Sentence to run "concurrently" or
      "consecutively" -Appellant, a postal employee -Allegation
     that while on duty he committed theft of a registered insured
D    parcel containing Gold Chain - Conviction and sentencing
     of appellant uls.381 /PC and also uls.52 of the /PO Act-
     Magistrate did not mention as to whether both the
    punishments will run "concurrently" or "consecutively" -
E    Conviction not challenged before Supreme Court -
     Challenge confined only to the sentences awarded- Whether
     the sentences awarded to appellant u/ /PC and the !PO Act
     should run "concurrently" or "consecutively" - Power available
     uls.31 CrPC invoked by Supreme Court- Held: Interest of
F   justice would be sub-served by directing both the sentences
     awarded to the appellant to run "concurrently as firstly, the
    case is pending for a long period of 21 years; secondly, the
     two sentences imposed on appellant, arose out of one offence
    of theft punishable uls.381 /PC tried in one trial; thirdly,
G   provisions of s.52 of the /PO Act were invoked against the
    appellant as he was a postal employee; fourthly, the Gold
    Chain was long recovered and also handed over to the person
    concerned; fifthly, appellant was already dismissed from
    service due to impugned conviction; and lastly, appellant was
H
                                  424
      NAGARAJA RAO v. CENTRAL BUREAU OF                        425
                INVESTIGATION

suffering from heart ailment since long - Indian Post Office A
Act, 1898 - s. 52 - Penal Code, 1860 - s. 381.

     Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti
     vs. Assistant Collector of Customs (Prevention),
     Ahmedabad & Anr. (198&) 4 SCC 183; State of               B
     Maharashtra & Anr. vs. Najakat Alia Mubarak Ali
     (2001) 6 SCC 311; Chatar Singh vs. State of M.P
     (2006) 12 SCC 37; State of Punjab vs. Madan
     Lal (2009) 5 SCC 238; Manoj@ Panu vs~ State
     of Haryana (2014) 2 SCC 153; Sawal Das vs.                t.;
     State of Bihar (1975) 3 SCC 156 - relied on.

                     Case Law Reference

(1988) 4 sec 183 .              relied on        Para 17
                                                               D
(2001) 6 sec 311                relied on        Para 18

(2006) 12 sec 37                relied on        Para 19

(2009) 5 sec 238                relied on        Para 19
                                                               E
(2014) 2 sec 153                relied on        Para 19

(1975) 3 sec 156                relied on        Para 22

    CRIMINAL APPELLATE JURISDICTION: Criminal                  F
Appeal No(s). 104 of 2015

      Fram the Judgment and Order dated 25. 04.2014 of the
High Court of Karnataka at Bangalore in Criminal Revision
Petition No. 924 of 2009
                                                               G
     Raghavendra S. Srivatsa, Amit A. Pai for the appellant.

     T. A. Khan, Charul Sarin, B. V. Balaram Das for the
Respondent.
                                                               H
426       SUPREME COURT REPORTS                 [2015] 12 S.C.R.


A         The Judgment of the Court was delivered by
          ABHAY MANOHAR SAPRE J. 1. Leave granted.
         2. This appeal is filed by the accused against the
  judgment and final order dated 25.04.2014 passed by the High
B Court of Karnataka at Bangalore in Criminal Revision Petition·
  No. 924 of 2009 whereby the learned single Judge of the High
  Court dismissed the revision petition and upheld the order
  dated 23.09.2008/01.10.2008 passed by the XVII Additional
  Chief Metropolitan Magistrate, Bangalore in CC No. 2408 of
C 1995 convicting and sentencing the appellant-accused for the
  offences punishable under Section 381 of the Indian Penal
  Code, 1860 (hereinafter referred to as "IPC") and Section 52
  of the Indian Post Office Act, 1898 (hereinafter referred to as
  "the IPO Act"), which was confirmed by order dated 08.10.2009
0 passed by the XXI Additional City Civil and Sessions Judge
  and Special Judge for CBI Cases, Bangalore in Criminal
  Appeal No. 845 of 2008.

         3. Facts of the case lie in a narrow compass.
E
        4. The appellant-accused, at the relevant time, (1.3.1992
  to 11.3.1993) was working as Sorting Assistant in Bangalore
  Packet Sorting Office, Head Record Office (Main Unit) at
  Bangalore. On the intervening night between 05.03.1993 and
F 06.03.1993, the appellant-accused while on duty committed
  theft of a registered insured parcel bearing receipt No. 0127
  dated 03.03.1993 containing Gold Chain (V shape) weighing
  173.650 Grams worth Rs. 70,41 Of-which was sent by its owner
  from Ramavadi Post Office, Bombay for being delivered to
G the consignee - Guiab Jewellery Shop at K.H.B. Road Post
  Office, Bangalore. The parcel thus could not be delivered to
  the party concerned though reached to Bangalore post office.

        5. Mr. M.N.Narasimha Murthy-Assistant Superintendent ·
H of Bags (PW-1) in the office of Chief Post Master General of
        NAGARAJA RAO v. CENTRAL BUREAU OF                        427
                  INVESTIGATION

 Karnataka, on coming to know of the missing of parcel and A
 commission of the theft of the parcel, immediately lodged a
 complaint (Ex-P-1) in the High Grounds Police Station. The
 complaint was accordingly investigated which revealed
 complicity of the appellant in commission of its theft which led
 to registration of Crime Case No. 115/1993 against the B
 appellant for the offences punishable under Sections 381 and
 419 of IPC read with Section 52 of the IPO Act. The case was
 then handed over to the CBI. The CBI registered the case being
 RC No. 14(S)/93-BLR, which eventually led to filing of the
 charge-sheet against the appellant in the Court of XVII C
 Additional Chief Metropolitan Magistrate, Bangalore for
 appellant's prosecution for commission of aforementioned.
 offences.

        6. The appellant abjured the guilt and claimed the trial. D
  The Chief Metropolitan Magistrate, by his order dated
  23.09.2008/01.10.2008 passed in CC No 2408 of 1995
. convicted the appellant for the offences punishable under
  Section 381 IPC and Section 52 of the IPOAct and sentenced
  him to undergo simple imprisonment for 6 months and to pay E
  a fine of Rs. 2000/- under Section 381 IPC and in default of
  payment of fine amount to undergo further simple imprisonment
  for 3 months. Similarly, the appellant was also sentenced to
  undergo simple imprisonment for 6 months and to pay a fine F
  of Rs. 2000/- for the offence punishable under Section 52 of
  the IPO Act and in default of payment of fine amount, to undergo
  further simple imprisonment of 3 months. So far as the offence
  punishable under Section 419 IPC was concerned, the
  appellant was acquitted of the charge.                           G

      7. It may be pertinentto mention that the Chief Judicial
 Magistrate while awarding the punishment for commission of
 two offences as mentioned above did not mention as to
 whether both the punishments will run "concurrently" or H
428          SUPREME COURT REPORTS                  [2015) 12 S.C.R.


A "consecutively''. In other words, the order of the Chief Judicial
  Magistrate in so far as it relates to the award of punishment
  was concerned it was silent, on this issue.

      · 8. Feeling aggrieved by the order of conviction and
B sentence, the appellant filed an appeal being Criminal Appeal
   No. 845 of 2008 before the XXI Additional City Civil and
  Sessions Judge and Special Judge for CBI Cases, Bangalore.
  The appellate Judge, by his order dated 08.10.2009, confirmed
  the conviction and sentences awarded to the appellant and
C dismissed his appeal. Against the said order, the appellant
  preferred a revision being Criminal Revision Petition No. 924
  of 2009 in the High Court. The High Court, by impugned order,
  dismissed the revision and in consequence upheld the
  conviction and sentences awarded to the appellant. It is against
D this order, the appellant- accused has filed this appeal by way
  of special leave.

             9. While assailing the legality and correctness of the
      impugned order, learned Counsel for the appellant urged only
E     one point. Learned Counsel, however, did not question the
      legality and correctness of the conviction on its merit and
      confined his challenge only to the sentences awarded to the
      appellant. According to him, the Courts below erred in not
      directing both the sentences awarded to the appellant, i.e.,
F     the one awarded under Section 381 IPC and the other awarded
      under Section 52 of the IPO Act to run "concurrently". It was
      his submission that since both the offences which resulted in
      appellant's conviction under two different Acts (IPC and IPO
      Act) were tried in one trial and arose out of one act narnely-
G     "theft", this was a fit case where the Courts below should have
      directed both the sentences to run "concurrently''. Learned
      Counsel pointed out that in every case of this nature, it is the
      duty of the Court to specifically mention in the order of
H     conviction as to whether the sentences awarded for the offences
       NAGARAJA RAO v. CENTRAL BUREAU OF                        429
                 INVESTIGATION

under the different sections would run "concurrently" or A
"consecutively" by taking recourse to the provisions of
Section 31 of the Code of Criminal ·Procedure, 1973
(hereinafter referred to as "the Code"). Learned Counsel
contended that in any event, having regard to the nature of
offence committed by the appellant, his advanced age (61 B
years), the serious heart ailment suffered by him while
undergoing the sentence duly proved by documents and the
fact that he has already been dismissed from service due to
his conviction, this Court should invoke the power under Section
31 of the Code and direct both the sentences, i.e:, the one C
awarded under IPC and other awarded under IPO Act to run
"concurrently" instead of to run "consecutively".

      10. In contra, learned counsel for the respondent- State
supported the impugned judgment and submitted that no D
interference is called for in the impugned judgment.

     11. Having heard the learned counsel for the parties and
on perusal of the record of the case,_ we find force in the
submissions made by the learned counsel for the appellant.      E

     12. The question, which arises for consideration in this
appeal, is whether the sentences awarded to the appellant
under IPC and the IPO Act should run "concurrently" or
"consecutively"?                                                F
       13.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 G
of an offence punishable under any other Special Act arising
out of one trial or more. It is for th~ reason that award of former
enure to the benefit of 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 H
430         SUPREME COURT REPORTS                  [2015] 12 S.C.R.


A     sentence to specify in clear terms in the order of conviction as
      to whether sentence awarded to the accused would run
      "concurrently" or ttiey would run "consecutively"

            14. Section 31 of the Code deals with power of the Court
s     to award sentence in cases where the accused is convicted
      of several offences at one trial. It reads as under:

           "31.Sentence in cases of conviction of several
           offences at one trial.-
c          ( 1) When a person is convicted at one trial of two or
           rl"ore offences, the Court may, subject to the
           provisions of section 71 of the Indian Penal Code
           (45of1860), sentence him for such offences, to the
           several punishments prescribed therefor which
D
           such Court. is competent to inflict; such
           punishments when 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
E
           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
F
           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:
G          Provided that-

           (a) in no ~ase shall such person be sentenced to
           imprisonment for a longer period than fourteen
           years;
H
      NAGARAJARAO v. CENTRAL BUREAU OF                      431
               INVESTIGATION

     (b) the aggr.egate punishment shall not exceed A ·
     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                B
     sentences passed against him under this section
     shall be deemed to be a single sentence."

     15. The issue as to in which circumstances the Court
should direct the sentences to run "concurrently" or C
"consecutively" after the accused is convicted of more than
one offence in one trial or more has been the subject matter of
several cases in this Court and thus remains no more res
integra. This issue was considered by this Court while
considering the scope of Sections 31, 427 and 428 of the     o
Code and Section 71 of IPC.

      16. We consider it apposite to refer to some of the
decisions.

      17. In Mohd. Akhtar Hussain @ Ibrahim Ahmed E
Bhatti vs. Assistant Collector of Customs (Prevention),
Ahmedabad & Anr., (1988) 4 sec 183, the accused was
sentenced to undergo 7 years imprisonment and a fine of Rs.
10 lakhs was imposed for having found to be in possession of F
primary gold worth Rs.1.4 crores which was in violation of the
Gold (Control) Act. He was subsequently indicted for infringing
the provisions of Customs Act by smuggling gold valued at
Rs. 12.5 Crores and exporting silver worth Rs. 11.5 Crores.
The accused pleading guilty in commission of the offences G
was awarded 4 years imp.risonment and also a fine. Both the
sentences were directed to run "consecutively". However,
the State contended that the offence under the Customs Act
merited the maximum sentence, while the accused contended
that sentences should run "concurrently". The High Court, H
432         SUPREME COURT REPORTS                [2015] 12 S.C.R.


A however, enhanced the sentence as contended by the State
  and rejected the plea of the accused in regard to the award of
  sentences. This Court in an appeal filed by the accused
  accepted the plea raised by him and while allowing his appeal
  directed both the sentences to run "concurrently" by referring
B to Se~tion 427 of the Code. The following observations made
  by this Court in paras 9 and 10 are apposite:

           "9. The section relates to administration of criminal
           justice and provides procedure for sentencing. The
C          sentencing court is, therefore, required to consider
           and make an appropriate order as to how the
           sentence passed in the subsequent case is to run.
           Whether it should be concurrent or consecutive ?

o          10. 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
E          and legitimate to have concurrent sentences. But
           this rule has no application ifthe transaction relating
           to offences is not the same or the facts constituting
           the two offences are quite different."

F         18. Likewise, a question arose before the three-judge
      Bench in State of Maharashtra & Anr. vs. Najakat Alia
      Mubarak Ali, (2001) 6 SCC 311, as to whether the accused
  convicted in two cases one after another was entitled to claim
  set off the period of detention during investigation, inquiry or
G trial from the sentence imposed on conviction in both the cases.
  While interpreting Section 428 of the Code, the majority of the
  judges answered the question in affirmative. While answering
  the question, Justice Thomas, speaking for majority of the
  Judges, made the following observations, which are pertinent.
H
       NAGARAJA RAO v. CENTRAL BUREAU OF                             433
                 INVESTIGATION

     "17. In the above context, it is apposite to point out · A
     that very often it happens, when an accused is
     convicted in one case under different counts of
     offences and sentenced to different terms of
     imprisonment under each such count, all such
     sentences are directed to run concurrently. The B
     idea behind it is that the imprisonment to be
     suffered by him for one count of offence will, in fact
     and in effect be imprisonment for other counts as
     well."
                                                                     c
      19. The aforesaid principle of law was relied upon by
this Court in Chatar Singh vs. State of M.P., (2006) 12 SCG
37 and State of Punjab vs. Madan Lal, (2009) 5 SCC 238,
and lastly recently in Manoj @ Panu vs. State of Haryana,
(2014) 2 sec 153, wherein this Court taking recourse to              D
Section 31 of the Code directed in somewhat similar facts
that the sentences awarded to the accused to run
"concurrently" in place of "consecutively".

      20. Keeping the aforesaid principle of law in mind and         E
applying the same to the facts of this case in the light of powers
available under Section 31 of the Code, we are of the
considered opinion that both the sentences awarded to the
appellant in the case at hand should run "concurrently" and
this we do by invoking Section 3~ which enables the Court to         F
so direct.

       21. In our considered opinion, this is a fit case where we
can direct the sentences awarded to the appellant to run
"concurrently" for the reasons that firstly, the case out of which G
this appeal arises relates to the year 1993 and is pending for
a long period of 21 years; secondly, the two sentences, which
were imposed on the appellant, arose out of one offence of
theft punishable under Section 381 IPC tried in one trial; thirdly,
                                                                     H
434          SUPREME COURT REPORTS               [2015] 12 S.C.R.


A the provisions of Section 52 of the IPO Act were required to
   be invoked against the appellant because he was the postal
   employee; fourthly, the Gold Chain was long recovered and
  ·also handed over to the person concerned; fifthly, the appellant
   has already been dismissed from services due to impugned
B conviction; and lastly, the appellant has been suffering from
   heart ailment since long, as is proved by documents filed along
   with the appellant's affidavit 03.11.2014.

        22. It is for all these reasons, in our considered opinion,
C the interest of justice would be sub-served by directing both
  the sentences awarded to the appellant to run "concurrently".
  Since we have upheld the conviction, which was not challenged
  by the appellant in this appeal, the directions to run both the
  sentences "concurrently" can always be passed by the
D appellate Court because such directions are in the nature of
  consequential on and incidental to the affirmance of the
  conviction as held by this Court in the case reported in Sawal
  Das vs. State of Bihar, (1975) 3 SCC 156.

E      23. In the light of foregoing discussion, the appeal
  succeeds and is allowed in part. The conviction and sentences
  awarded to the appellant by the courts below for the offences
  punishable under Section 381 of IPC and Section 52 of the
  IPO Act are upheld. However, it is directed that both the
F sentences awarded to the appellant under IPC and IPO Act
  would run "concurrently".

        24. As a consequence, if the appellant has already
  undergone the period of sentence imposed on him he shall be
G released forthwith if not required in connection with any other
  case.

      Bibhuti Bhushan Bose·                     Appeal partly allowed.