Orissa HC Converts Consecutive Sentences to Concurrent, Extends Probation for IPC 451 and 323 Offences Arising from Same Transaction
Justice V. Narasingh held that where two offences arise from one transaction, directing sentences to run consecutively is contrary to settled law, and extended probation under the Probation of Offenders Act, 1958.
The High Court of Orissa at Cuttack has set aside the direction that sentences for house-trespass and voluntarily causing hurt run consecutively, converting them to concurrent sentences and releasing the convict on probation under the Probation of Offenders Act, 1958. Justice V. Narasingh, sitting singly, found that both courts below had overlooked the single-transaction rule under Section 31 of the Code of Criminal Procedure, 1973, and had also failed to properly engage with the Probation of Offenders Act despite its clear applicability. The revision petition challenged a judgment of the District & Sessions Judge, Kandhamal, Phulbani, dated 20 March 2026, which had itself modified — but not corrected in this respect — the trial court's order of conviction and sentence.
The Incident and the Charges
On 17 March 2023, at around 3.30 P.M., the victim (P.W.1) was alone in her house in the jurisdiction of Phulbani Town Police Station. The petitioner allegedly entered her house and attempted to commit rape on her. When she raised an alarm, her son (P.W.2) arrived and resisted the petitioner. The petitioner then allegedly struck P.W.1 on the head and P.W.2 on the hand with a crowbar. It was further alleged that prior to the incident, the petitioner had threatened to murder P.W.1.
Phulbani Town P.S. Case No. 76 of 2023 was registered. After investigation, a charge-sheet was filed under Sections 451, 341, 323, 354, and 506 of the Indian Penal Code. Eight witnesses were examined by the prosecution: P.W.1 was the informant and victim, P.W.3 and P.W.4 were independent witnesses, P.W.5 was cited as an eye-witness, P.W.6 was the Medical Officer, and P.W.8 was the Investigating Officer. The defence adduced neither oral nor documentary evidence.
Trial Court Conviction and Sentence
The C.J.S.D. (Women's Court)-cum-J.M.F.C., Phulbani, Kandhamal, by its judgment dated 17 January 2026 in C.T. Case No. 171 of 2023 (T.R. No. 5 of 2024), convicted the petitioner under Sections 451 and 323 IPC. The petitioner was sentenced to simple imprisonment for one year for the Section 451 IPC offence, with a fine of Rs. 1,000/- and a default sentence of one month's simple imprisonment. For the Section 323 IPC offence, the sentence was simple imprisonment for six months. Both substantive sentences were directed to run consecutively. A prayer for release under the Probation of Offenders Act, 1958 was rejected.
Appellate Court's Partial Modification
The petitioner appealed before the District & Sessions Judge, Kandhamal, Phulbani, in Criminal Appeal No. 02 of 2026. By judgment dated 20 March 2026, the appellate court affirmed the conviction under Sections 451 and 323 IPC. It reduced the sentence under Section 451 IPC from one year to six months' simple imprisonment, while retaining the fine of Rs. 1,000/- and the default sentence of one month. The sentence of six months' simple imprisonment under Section 323 IPC was left untouched. Critically, the direction that the substantive sentences run consecutively was also maintained. The appellate court declined to extend the benefit of the Probation of Offenders Act.
The petitioner then moved the High Court in revision under Section 401 Cr.P.C.
Arguments Before the High Court
Counsel for the petitioner, Mr. A.K. Sahoo, made a faint submission that the appreciation of evidence by both courts below was perverse. More specifically, the primary relief sought was release of the petitioner under the Probation of Offenders Act, 1958. Mr. C.R. Swain, learned Additional Government Advocate for the State, opposed the challenge to the finding of guilt but fairly stated that the question of applying the Probation of Offenders Act could be considered in the factual matrix of the case.
The Court's Reasoning on Concurrent Sentences
Justice Narasingh declined to interfere with the order of conviction, finding no infirmity in the appreciation of evidence. However, the direction that the sentences run consecutively received separate and pointed scrutiny.
The court observed that both the trial court and the appellate court had directed consecutive sentences even though the offences under Sections 451 and 323 IPC were committed in the course of the same transaction. The judgment described this as “baffling” given that the offences were admittedly part of the same transaction.
Section 31 of the Cr.P.C. (corresponding to Section 25 of the Bharatiya Nagarik Suraksha Sanhita, 2023) governs sentences in cases of conviction for several offences at one trial. The provision confers discretion on a court to direct sentences to run concurrently or consecutively. Justice Narasingh held that this discretion must be exercised in accordance with settled principles rather than mechanically.
The court relied on the Constitution Bench decision of the Supreme Court in O.M. Cherian alias Thankachan v. State of Kerala & Ors., (2015) 2 SCC 501, which answered a reference on this question. The Apex Court had there held that when prosecution is based on a single transaction constituting two or more offences, the sentences are to run concurrently. It reiterated what had been stated in Mohd. Akhtar Hussain v. Collector of Customs, (1988) 4 SCC 183:
Justice Narasingh further referred to Nagaraja Rao v. CBI, (2015) 4 SCC 302, for the proposition that mitigating factors must be considered when deciding whether sentences run concurrently or consecutively, and to Neera Yadav v. Central Bureau of Investigation, (2017) 8 SCC 757, and Sunil Kumar v. State of U.P., (2021) 5 SCC 560, which reiterate the scope of Section 31(1) Cr.P.C.
The court also drew attention to Section 235(2) Cr.P.C. (corresponding to Section 258(2) of the BNSS), which casts a duty on courts to hear the convict on the question of sentence and to do so by taking into account the circumstances of the offence and any mitigating factors — not mechanically or in a pedantic manner. Quoting from Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, Justice Narasingh recalled the reformative view of sentencing: “men are not improved by injuries.”
Applying these principles, the court held that since both offences arose from the same transaction, the direction for consecutive sentences was contrary to law and modified it so that the sentences would run concurrently.
Application of the Probation of Offenders Act, 1958
Both courts below had declined to extend the benefit of the Probation of Offenders Act, without adequately recording reasons for that refusal. Justice Narasingh noted that the Supreme Court, in the recent decision of Chellammal v. State represented by the Inspector of Police, 2025 SCC OnLine SC 870, had laid down guidelines on the application of the Probation of Offenders Act and specifically cast a duty on courts to indicate why they are not resorting to its provisions.
Section 4 of the Probation of Offenders Act, 1958 empowers a court to release a person found guilty of an offence not punishable with death or imprisonment for life on probation of good conduct, instead of sentencing that person at once, where the court is of the opinion that it is expedient to do so having regard to the circumstances of the case including the nature of the offence and the character of the offender. The court must also take into consideration any probation officer's report.
Justice Narasingh found that the punishment imposed on the petitioner did not suffer from the disqualification under Section 4(1) of the Act — that is, the offences were not punishable with death or imprisonment for life. Guided by the Supreme Court's directions in Chellammal, the court held that the benefit of the Probation of Offenders Act could be extended to the petitioner and directed his release on probation under Section 4, on conditions to be settled by the trial court.
Separately, the court addressed the fine of Rs. 1,000/- that had been imposed. It set aside the fine and directed that the amount be treated as compensation payable to the informant under Section 5 of the Probation of Offenders Act. The petitioner was directed to deposit this sum within six months of the order. On such deposit, the amount is to be paid to the informant. In the event of default, recovery is to follow the procedure under Sections 386 and 387 of the Cr.P.C. (corresponding to Sections 461 and 462 of the BNSS, 2023).
Order
The Criminal Revision was disposed of on 30 June 2026. The conviction of Ramesh Chandra Behera under Sections 451 and 323 IPC was upheld. The direction that the substantive sentences of six months' simple imprisonment each run consecutively was set aside; both sentences are now directed to run concurrently. The fine imposed by the courts below was set aside and recharacterised as compensation of Rs. 1,000/- under Section 5 of the Probation of Offenders Act, 1958, to be deposited within six months and paid to the informant. The petitioner is to be released on probation under Section 4 of the Probation of Offenders Act, on conditions to be settled by the trial court.