Mohan Jose and Another vs State of Kerala

Chettur Sankaran Nair, J.—A matter of great moment, and vast application arises in these cases. What are the broad considerations, on principle and precedent, that determine whether sentence should be concurrent or consecutive.

Petitioners convicted of 16 charges and 24 charges respectively and sentenced to prison terms, aggregating 14 years and 3 months and 34 years and 6 months respectively seek directions for concurrency. Petitioners referred to a decision of this Court in Monian Pillai v. State 1986 KLT 1370 to buttress their contentions. Offences found are of like character- housebreaking, lurking house trespass and theft. The nominal rolls of Petitioners are appended hereto, as Annexures A and B. Petitioner in Crl. M.C. 82/88 says he had noble intentions, and these have been foiled by police, leaving a rankling feeling of revenge in him.

I have heard Sarvasree K.C. Peter, N.A. Muraleedharan and S. Gopakumaran Nair as amicus curiae, and Public Prosecutor for the State. Public Prosecutor hotly contested the claims of Petitioners, submitting that Petitioners Mohan Jose and Joseph alias Jose alias Captain Jose are dangerous and habitual offenders with laurels of many convictions, and suspected of many more crimes, yet to be detected. According to the Prosecutor, continued detention of Petitioners is necessary to protect the public from their potential depradations.

Sentencing policy is an important facet of criminal justice system, in the area of management. It has nuances and hues, wide and varied. Savage severity is not justified. Sentencing process must be humane balanced and purposeful. Reformation theory, probation and soft sentencing norms, have received greater recognition in recent times. Probation of Offenders Act, Section 360 Code of Criminal Procedure and like Provisions in India, and suspended sentence and provisions of Section 22 of the English ''Powers of Criminal Court Act, 1973'' are examples of this. If sentencing were a bilateral process,- or if it had only two constituents namely sentencing Court and accused, wider application could have been given to reformation theory. But, there is a third constituent-perhaps the most important-society, for whose protection criminal law is designed. The basic responsibility of criminal justice system is to protect society from transgressions, and to enable society to enjoy life as a serene experience. The system must be result oriented. Unless the machinery ensures this, aggrieved might take law into their own hands and seek private vengeance, ''as long as human beings are warm blooded'', and this will erode the foundations of the system.

Before referring to statutory provisions, the perspective in which the question is to be viewed, must be identified. Pronouncements of the highest Court illumine this area. In State v. Prabhu 1988 S.C.C. 51, the Court stressed the:

...desirability of imposing proper punishment as a measure of social necessity and as a means of deterring other potential offenders.

(emphasis supplied)

In State of Punjab Vs. Mann Singh and Another, the Court observed:

It is the duty of the Court in every case to award a proper sentence, having regard to the nature of the offence the manner in which it was committed and to all attendant circumstances.

In Earabhadrappa v. State of Karnataka AIR 1983 S.C. 446, the Court warned:

A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law.

(emphasis supplied)

In Asharfi Lal and Others Vs. State of Uttar Pradesh, , the Court stressed the need to impose proper sentence:

as a measure of social necessity.

(emphasis supplied)

Again, in Mahesh v. State of U.P. AIR 1987 S.C. 1346, the Court observed that an inadequate sentence would:

be a mockery of justice...The Common men will lose faith in Courts.

I am not unaware of instances, where the Supreme Court has applied probation or imposed lenient sentences, in the case of first offenders, or chance offenders, who were victims of circumstances. But, unlike those cases, where a series of offences are committed, by choice or habit, different considerations, must prevail.

Crime merits punishment and punishment must be commensurate with the gravity of crime. Commensurability can be achieved, inter alia, by the deft use of Section 427 of the Code. Section 427 reads,

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....

(emphasis supplied)

The normal rule, or the rule u/s 427 is consecutive sentences. Legislative policy and intendment are not in doubt, in view of the language used. Discretion is given to the sentencing Court, to direct concurrency.

Discretion in other areas, if unguided could be arbitrary and has some times been called tyranical. But, Courts are trusted with discretion because, judicial discretion is exercised informed by tradition systematised by methodology and disciplined by principle. The discretion u/s 427, is to be so exercised.

Section 235(2), 248(2) and 255(2) Code of Criminal Procedure make it imperative that a sentience must follow every conviction. These provisions read with Section 427 clearly suggest that every sentence must be given effect to Court must consider whether valid grounds exist, to depart from the rule. It is difficult or even impossible to enunciate exhaustively, cases for concurrency. Kaledoscopic variety of cases or human situations, present themselves before Courts and a computer feed back, is not possible. Court must consider each case on its merits-special features, nature of the offender, nature of offence, circumstances attending the crime or leading to it, and then determine whether discretion u/s 427 should be exercised. The finest tool of judicial craftsmanship is discretion, and the finest attainment, its judicious use.

Except in cases where several offences are committed in the course of the same transaction, cases of multiple offences inviting consecutive sentences, will be cases involving habitual offenders, and not first offenders or chance offenders. Generally speaking, such will not be the cases for reformation, for such persons are proven to be beyond reformative or corrective treatment. Deterrent sentences are called for in such cases. Even apart the rule in Section 427 of the Code, policy of law is very clear that is an extended sentence, or an additional sentence is merited for subsequent offences. That is clear from enactments like the Prevention of Food Adulteration Act, Income Tax Act, Habitual Offenders Act, The Dangerous Drugs Act, The Customs Act, Abkari Act, etc. Sections 211(7), 236 and 248 Code of Criminal Procedure, also visualize situations calling for extended sentences. In England provisions for extended sentences are contained in ''Criminal Courts Act, 1973''.- Section 37(2) of Criminal Justice Act contains like provisions. There is Anr. aspect that should weigh with the Court and that is the need to protect public from the offender, for sufficiently long. It is a concept of vintage to segregate the wrong doer, to protect society. In recent years, this principle has gained significant acceptance. If concurrency is applied in cases of habitual offenders (unless very special circumstances exist) it defeats the rule contained in Section 427, 235(2), 248(2) and 255(2) Code of Criminal Procedure. It could also lead to hostile discrimination negatively. For example- if in a given type of burglary the sentencing Court imposes a sentence of one year for an offence, a first offender will suffer one year for one offence; a habitual offender will suffer only one year for 12 like offences. For practical purposes, the habitual offender will suffer one month for one offence, while the first offender will suffer one year for one offence. Thus, being a habitual offender works to his advantage, and not being a habitual offender works to the disadvantage of a first offender or a chance offender, consequence wise. This will be an anathema. If this happens, it will only whittle down the efficacy of sentencing process. That may also encourage habitual offenders to commit as many offences as possible in their free time profitably, and avoid consequence of consecutive sentences. Frequent prayers made in, this Court for concurrent sentences by habitual offenders in property offences, reinforce this view. In a very short period, five cases of this kind have come before me, and they are Crl. R.P. Nos. 633/87, 758/87, 753/87, 755/87, Crl. M.C. Nos. 83/88, 248/88 and 353/88.

The law and practice, governing cases involving more than one conviction, may be noticed. In R v. Castro 1881 (6) App. C.A.S. 229, Lord Selborne, L.C. speaking for the House, said:

When a man is found guilty of the misdemeanours being distinct and separate Offences, there not only a competent but the proper course was, and is to pronounce a second sentence of imprisonment to commence and begin after the expiration of the first.

In Regina v. Blake 1962 (2) L.R.Q.B. 377 the Court of Appeal upheld consecutive sentences, aggregating 42 years awarded by Parker, C.J. Court of appeal observed:

It was intended to be punitive, it was designed and calculated to deter Ors. , and it was meant to be a safeguard to this country.

In R v. Wilson and Ors. 1964 (3) All E.R. 269 the Court of Appeal observed:

...severely deterrent sentences were necessary, not only to protect the public against the Appellants for a very long time, but also to demonstrate as clearly as possible to Ors. tempted to follow them into lawlessness on this vast scale that, if they were brought to trial and convicted, commensurate punishment would follow, minor differences between such criminals in age and record being irrelevant; the sentences imposed were wholly exceptional sentences for a wholly exceptional crime, and were not wrong in principle or excessive.

(emphasis supplied),

In R v. Lycett 1968 (2) All E.R. 1021 the Court reiterated the principle. That was a case of 16 offences of house breaking and larcenies. The Court said:

The truth of the matter is that the Appellant was becoming a confounded nuisance in Brighton. These offences committed within a week of his being released from prison on the last occasion, followed a history of ten previous conviction....in those circumstances a comparatively heavy sentence was called for.

Again, in D.P.P. v. Ottewell 1968 (3) All E.R. 153 the House of Lords highlighted the need to protect the public from persistent offenders. Lord Reid speaking for himself, Lord Guest, and Lord Upjohn stated the law to be thus:

If the Court is satisfied for the reasons stated that it is expedient to protect the public from him for a substantial time, then the Court may impose an extended term of imprisonment.

(emphasis supplied)

In R v. Britten 1969 (1) All E.R. 517 Court of Appeal again applied the principle in R v. Blake, that, it is of the highest importance, perhaps particularly at the present time, that such conduct should not only stand condemned, should not only be held by all ordinary men and women in utter abhorrence but also should receive when brought to justice the severest possible punishment, and added,

It cannot be right to say that if over a period an accused commits a large number of offences, he should be treated no differently from an accused who has committed only one offence.

Once again, in R v. Story and Ors. 1973 (3) All E.R. 562 the Court of Appeal affirmed the principle. Lord Widgery, C.J. for the Court stated the principle:

One of the important factors which they must bear in mind is the safety of the public and the possibility that offences of the kind which have been committed may be repeated... If they can do acts of this kind, obviously there is a danger they will do them with equal lack of excuse again, and the safety of the public and the protection of the public from similar incidents, is a factor which has to be in the forefront of the sentencing exercise.

(emphasis supplied)

In England, consecutive sentences is the general rule. Over and above consecutive sentences, an extended term of imprisonment could also be imposed under the Criminal Justice Act, 1967. Criminal Justice Act, 1948, in England provided for preventive detention in the case of old offenders for terms ranging from 5 to 14 years. It was in place of preventive detention that extended terms was introduced in the Criminal Justice Act, 1967. In Picker (1970) 2 Q.B. 161 it was observed:

Where nature of the offence and make up of offender are such that the public require protection for a considerable time...it is right for the judge to impose a life sentence.

In Gouw''s case, a sentence of six years for a minor offence was upheld on this principle. The long catina of decisions of English Courts have accepted consideration of public safety as a guiding principle. The reason is that the basic objective of criminal justicing system is to protect the society.

The state of law in the United States is not different, in the sense that each offence invites a separate sentence and consecutive sentences could be ordered. Trial judges have jurisdiction to impose concurrent and consecutive sentences. There are instances which require trial judges to impose consecutive sentences mandatorily (Kansas General Statutes). The thinking appears to be that, consecutive sentences are merited in the case of those committing repeated offences. The United States Supreme Court asserted that separate sentences are in harmony with the Common Law and that ''stealing of each horse was a separate offence'' U.S. v. Ju Toy 198 U.S. 253. Similarly, each purchase of heroin was held to be a separate offence, inviting consecutive sentences-Nathanies Harris v. United States 359 U.S. 359. In Mc Donald v. Masacheusettes 45 L.Ed. 452 the Supreme Court of the United States, considering the constitutionality of a masacheusettes statute, permitting imposition of a 25 year sentences, held that it was justified in the view that habitual, offenders merit a harsher punishment. In Robert Edward Marshell v. U.S. 38 L.Ed. 618 : 414 U.S. 417 the Court negatived the claim for reformation and put the accent on the need for deterrence, in the case of dangerous offenders. Court said:

There is no fundamental right to rehabilitation ...Any programme aimed at treatment for drug addiction would not hinder traditional efforts to deal effectively with strictly criminal aspects of the problem.

In this context, it is apt to notice the observations of Brennen, J. in Trop v. Dulles 356 U.S. 111

Our jurisprudence has always accepted deterrence in general, deterrence of individual recidivism, Isolation of dangerous persons and rehabilitation as proper goals of punishment.

(emphasis supplied)

In William C. Greene v. U.S. 358 U.S. 326, the Supreme Court affirmed a sentence of 20 months to 5 years in several convictions, to run consecutively. American Jurisprudence Vol. XXI at page 547 after referring to judicial authority states:

Court has power derived from the common law to impose cumulative sentences on conviction of several offences charged in Separate indictments or in separate counts of the same indictment, term ''consecutive sentences'' means sentences following in a train, succeeding one Anr. .

Reference to the landmark decision in Furman v. Georgia 33 L.Ed. 346 : 408 U.S 238 is useful. It was observed:

I cannot agree that retribution is a constitutionally impermissible ingredient in the imposition of punishment. The instinct for retribution is part of the nature of men and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organised society is not willing or unable to impose upon criminal offenders the punishment they deserve, then there are sown, the seeds of anarchy-of self help, vigilante justice and Lynch Law.

(emphasis supplied)

In the same judgment, Black Munn, J. observed:

We should not allow our personal preferences as to the wisdom of legislative and congressional action, or our distaste for such action to guide our judicial decision in cases, such as these. Temptations to cross that policy line are very great.

True, by deterrence alone the situation cannot be remedied. As Commer observed:

We will never be able to mop the water off the floor, unless we turn off the faucet that is causing the overflow.

It is equally true that mopping where mopping is needed, must be done. The fact remains that crime has catapulted into a national priority. This must be tackled at different levels, and by selective programmes, keeping in view long term institutional effects. Sir Leon Radzinowicz and Roger Hood (Strategy of Survillence of Dangerous Offenders) suggest incapacitating habitual criminals, by means of creating integrated criminal apprehension programme, creation of required capability levels and improvement of intelligence and record system. Yet, isolation of dangerous offenders is considered imperative. David Nemecek (Harvard University) Attorney General''s Task Force on Violent Crimes, (1981) Rani Prison Survey, and other agencies in the United States notice that a large number of crimes are committed, by a small percentage of offenders viz. habitual offenders. In Chicago, 6.3 per cent of the criminals accounted for 54.4 per cent of the crimes. This brings into sharp focus the need for segregation of habitual or dangerous offenders, for a sufficiently long time and imposing more deterrant sentences on them. Courts in India, have also taken the view that as far as old offenders are concerned, deterrent and consecutive sentences are the rule. In Mahabir Beldar Vs. The State, , a sentence aggregating to 25 years was affirmed. In Monian Pillai v. State 1986 KLT 1370, quoted by the Petitioner while pleading for concurrency, the learned Judge was considering the scope of Section 428, and not 427. The policy behind Section 427, appears to be deterrence. Segregation of habitual offenders, by consecutive sentences, is thus an accepted principle.

Having regard to the law on the subject, notwithstanding a sense of sympathy, or even anguish one may feel, I do not find myself free to interfere with the sentences imposed. In the result, the sentences imposed, on the Petitioners shall run consecutively. The Criminal Miscellaneous Cases are dismissed.

I express appreciation for the help rendered by Sarvashree K.C. Peter, S. Gopakumaran Nair and N.A. Muraleedharan as Amicus Curiae.