Section 25, BNSS 2023 — the substance

(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 9 of the Bharatiya Nyaya Sanhita, 2023, sentence him for such offences to the several punishments prescribed which 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 concurrently.

(2) In the case of consecutive sentences, it shall not be necessary for the Court, by reason only of the aggregate punishment 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:

Provided that — (a) in no case shall such person be sentenced to imprisonment for a longer period than twenty years; (b) the aggregate punishment shall not exceed 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 sentences shall be deemed to be a single sentence.

⚠ Three points on the section

The BNSS has raised the ceiling. Where the Code capped the aggregate of consecutive sentences at fourteen years, the proviso to section 25(2) now provides for twenty. The other limb — that the aggregate shall not exceed twice what the Court may inflict for a single offence — is unchanged.

No committal is needed merely because of the aggregate. A Magistrate whose consecutive sentences add up to more than he could award for a single offence does not have to send the case to a higher court — subject to the two limits in the proviso.

And for the convict’s appeal the aggregate is one sentence. Section 25(3) deems it so, which matters for deciding which court the appeal lies to — since that depends on the sentence passed.

The section is subject to section 9 of the Bharatiya Nyaya Sanhita, which limits the punishment where an offence is made up of parts each of which is itself an offence — so a person is not punished twice over for the same conduct differently described.

📖 Mohd. Akhtar Hussain @ Ibrahim Ahmed Bhatti v. Assistant Collector of Customs, (1988) 4 SCC 183

Facts: A person convicted in two separate prosecutions arising out of what he contended was a single course of conduct sought a direction that the sentences run concurrently, and the Court considered the principle on which such a direction is made.

Held: The Supreme Court held that the basic rule of thumb is the single transaction rule: where a person is convicted of several offences which arise out of one transaction, the sentences should ordinarily be made to run concurrently, since separate consecutive terms would punish the same course of conduct more than once. The Court held that the discretion is to be exercised on sound judicial principles and not arbitrarily, and that the governing consideration is whether the totality of the sentence is proportionate to the totality of the criminality. It held that where the offences are distinct and unconnected, committed on different occasions, consecutive sentences are appropriate — for otherwise the later offences would carry no punishment at all. The Court emphasised that the Court should stand back and consider the aggregate, and not merely whether each individual sentence is justified in isolation.

Ratio: The basic rule of thumb is the single transaction rule: offences arising out of one transaction should ordinarily attract concurrent sentences. The governing consideration is whether the totality of the sentence is proportionate to the totality of the criminality.

📖 O.M. Cherian @ Thankachan v. State of Kerala, (2015) 2 SCC 501

Facts: A conviction for several offences at one trial resulted in sentences which the judgment did not direct to run concurrently, and the question was the extent of the Court’s discretion and how it should be exercised.

Held: The Supreme Court held that the provision leaves it to the full discretion of the Court to order sentences to run concurrently in case of conviction for two or more offences, and that the discretion is to be exercised judicially, having regard to the nature of the offences and the attendant circumstances. The Court held that the normal rule is that sentences run consecutively unless the Court directs otherwise, but that the discretion should be exercised in favour of concurrent running where the offences arise from the same transaction or where the aggregate would be unduly harsh. It held that the Court should consider the totality principle — whether the aggregate sentence is just and proportionate to the overall criminality — and should record its reasons where the question is a live one. The Court further held that the omission to consider concurrency may be corrected in appeal or revision, the aggregate being deemed a single sentence for the convict’s appeal.

Ratio: The provision leaves full discretion to order sentences to run concurrently, exercised judicially with regard to the nature of the offences. The normal rule is consecutive running, but the discretion favours concurrency where the offences arise from the same transaction or the aggregate would be unduly harsh.

⚠ The discipline the section requires

The Court must apply its mind and say so. Concurrent running requires a direction; silence leaves the sentences consecutive.

The totality of the sentence must be proportionate to the total criminality. A court should stand back and ask whether the aggregate is just — not merely whether each individual sentence is.

Consecutive running is right where the offences are distinct and unconnected, committed on different occasions against different persons — for otherwise the later offences would carry no punishment at all, which would be a licence to offend once the first sentence is passed.

And the direction may be given later. Where a court has omitted to consider the question, the omission may be corrected on appeal or in revision — the aggregate being deemed a single sentence for the purpose of the convict’s appeal.

The position stated shortly

1. Section 25(1): punishments consisting of imprisonment commence the one after the expiration of the other, unless the Court directs that they shall run concurrently.

2. So consecutive is the default, and concurrent running requires a direction. A judgment silent on the point leaves them consecutive.

3. Section 25(2) proviso: in no case shall the person be sentenced to imprisonment for longer than twenty years; and the aggregate shall not exceed twice what the Court may inflict for a single offence.

4. The BNSS has raised the ceiling from the fourteen years the Code provided.

5. No committal is needed merely because the aggregate exceeds what the Court could award for a single offence.

6. Section 25(3): for the convict’s appeal, the aggregate is deemed a single sentence.

7. The basic rule of thumb is the single transaction rule: offences arising out of one transaction should ordinarily attract concurrent sentences: Mohd. Akhtar Hussain.

8. The governing consideration is whether the totality of the sentence is proportionate to the totality of the criminality.

9. The discretion is full but judicial, exercised with regard to the nature of the offences and the attendant circumstances, and reasons should be recorded where the question is live: O.M. Cherian.

10. Consecutive running is right where the offences are distinct and unconnected — for otherwise the later offences would carry no punishment at all.