IN THE HIGH COURT OF PUNJAB AND HARYANA AT
Criminal Writ Petition No.838 of 2011
Date of Order: 6th September, 2011
State of Haryana and another ....
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri H.P.S. Ishar, Advocate,
for the petitioner.
Shri Pradeep Singh Poonia, Additional AG, Haryana with Shri Saurabh Mohunta, DAG, Haryana.
Hemant Gupta, J.
The present writ petition has been placed before this Bench on
the Reference made by the learned Single Judge on 7.7.2011, in
respect of the interpretation of Section 427(2) of the Code of Criminal
Procedure (for short "Code"). A Single Bench of this court in the case
decided on 2.3.2010), has held that where a life convict earns Criminal Writ Petition No. 838 of 2011 ( 2)
remission in the sentence of life imprisonment, it becomes
imprisonment for a term and the case is taken out of the purview of
sub-section (2) of Section 427 of the Code. The correctness of the
said view is an issue in the present case.
On the basis of the arguments raised, we find that the following
questions of law arise for consideration:-
"1. Whether the release of a convict sentenced to undergo life imprisonment after granting remission of the remaining sentence by the appropriate Government amounts to an imprisonment for a term?
2. Whether the sentence in the second case imposed upon a convict undergoing life imprisonment, will start from the date of his first offence or from the date he was arrested in respect of such offence?"
The brief facts to appreciate the questions raised are that the
petitioner was convicted for an offence under Section 302 IPC in a
case arising out of FIR No. 421 dated 4.9.1994, registered at Police
Station Tohana in the State of Haryana (then in the District Hisar).
While, the petitioner was undergoing the said sentence and when he
was on parole, he was involved in FIR No. 94 dated 9.2.1998, Police
Station City Sonepat, for an offence under Sections 455 and 397 IPC.
In such case, he has been convicted and sentenced to undergo RI for
10 years for an offence under Section 397 IPC and RI for 7 years
under Section 455 IPC. There is no order that such punishment shall
run concurrently with the sentence of life imprisonment. Criminal
Appeal No. 583-SB of 2001 is pending before this Court against the
said conviction and sentence. The petitioner has over stayed parole in
the year 2007 and has been sentenced to undergo RI for one year vide
order dated 11.3.2008 in FIR No. 515 dated 4.8.2007. Earlier also, the Criminal Writ Petition No. 838 of 2011 ( 3)
petitioner over stayed parole, but was not imposed any sentence of
Learned counsel for the petitioner contends that the remaining
sentence of the petitioner has been remitted by the State Government
vide Haryana Government Order dated 25.8.2010 and the petitioner
released in the case arising out of FIR No. 421 dated 4.9.1994 on
19.10.2010. As per the custody certificate produced by the petitioner,
he is in custody in the second case arising out of FIR No. 94 dated
9.2.1998 since 20.10.2010. It is argued that since the petitioner was
undergoing a sentence for life imprisonment, therefore, in terms of
Section 427(2) of the Code, the sentence of 10 years RI imposed in the
second case, has to run concurrently with the sentence of life
imprisonment for the previous offence. It is contended that grant of
remission does not convert the sentence imposed upon the petitioner
as that of a fixed term imprisonment and, therefore, the case does not
fall within the scope of Section 427(1) of the Code. It is contended that
in terms of Section 432(3) of the Code, even after remission of
sentence, the petitioner can be called upon to undergo sentence in the
event of the violation of the conditions specified therein. It is argued
that the finding recorded in Jaswant Singh's case (supra) that grant of
remission to a convict undergoing life imprisonment makes it
imprisonment for a fixed term, is not a correct proposition of law. It is
contended that commutation of sentence of life imprisonment make it
term for a fixed term. But the grant of remission to a convict
undergoing life imprisonment does not wipe off the substantive
sentence of life.
Learned counsel for the petitioner has relied upon Ranjit Singh
v. Union Territory of Chandigarh and others, (1991)4 SCC 304, wherein
the Hon'ble Supreme Court has held that sub-section (2) of Section Criminal Writ Petition No. 838 of 2011 ( 4)
427 of the Code is in the nature of exception to the general rule
stipulated in sub-section (1) of Section 427 IPC. It was held that if
any remission or commutation is granted in respect of the remaining
sentence of life imprisonment, the benefit of that remission or
commutation will not ipso-facto be available in respect of the
subsequent sentence of life imprisonment. It was held that operation
of superimposed subsequent sentence of life imprisonment shall not
be wiped off merely because in respect of the corresponding earlier
sentence any remission or commutation has been granted by the
It is, thus, contended that the appellant has completed 10 years
of imprisonment from the date of his arrest in the second case,
therefore, the superimposed sentence of 10 years RI in the second
case having been completed, his continued detention is illegal and
thus, is liable to be set aside. It is argued that though the appeal of
the petitioner is pending against the subsequent conviction, but since
the petitioner has completed the sentence in the second case, the
pendency of appeal cannot be a ground to detain the petitioner, when
he has completed the sentence imposed in the said case.
On the other hand, Shri Poonia, learned Additional AG,
Haryana, pointed out that in M.R. Kudva v. State of Andhra Pradesh,
(2007)2 SCC 772, the Supreme Court has held that Section 482 of the
Code was not an appropriate remedy to order the sentence to run
concurrently. Therefore, this Court in a writ petition cannot order the
sentence to run concurrently. It is contended that in Gopal Vinayak
Godse v. State of Maharashtra and others, AIR 1961 SC 600, the Court
has held that sentence of life imprisonment without any formal
promulgation by the appropriate Government, cannot be treated as Criminal Writ Petition No. 838 of 2011 ( 5)
one for definite period. Shri Poonia has also made reference to
311, wherein it was held that the sentence of life imprisonment
imposed on the same person in two different convictions would
converge into one and thereafter it would flow through one
stream alone. It is contended that the second sentence shall run
concurrently not from the date of first conviction, but shall from the
date the convict is arrested in the second case. It is also argued that
the conviction for overstaying parole is to run independent of
conviction under Section 427 of the code, in view of Section 9 of the
Haryana Good Conduct Prisoner's (Temporary Release) Act, 1988.
In Gopal Vinayak Godse (supra) the argument was inter-alia
based upon Section 57 IPC which fixes 20 years as the term for the
life imprisonment. It was held that the said period of 20 years is not
applicable in respect of a convict undergoing life imprisonment. It
was held that Section 57 IPC is to calculate fractions of terms of
punishment and that the imprisonment of life is imprisonment for one
natural life. It was held to the following effect:-
"5.......Section 57 of the Indian Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the Section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended Section which substitutes the words "imprisonment for life" for "transportation for life" enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prima-facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life."
Criminal Writ Petition No. 838 of 2011 ( 6)
Subsequently, in State of Madhya Pradesh v. Rattan
Singh and others, (1976) 3 Supreme Court cases 470, it was held that
the question of remission of entire sentence or part of it, lies within
the exclusive domain of the appropriate Government and neither
Section 57 IPC nor any Rules or Local Acts, can nullify the effect of
the sentence of life imprisonment imposed by the Court under the
IPC. The Court observed as under:-
"4....In other words, this Court has clearly held that a sentence for life would enure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner's death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life. In these circumstances, therefore, it is clear that the High Court was in error in thinking that the respondent was entitled to be released as of right on completing the term of 20 years including the remissions. For these reasons, therefore, the first contention raised by the learned Counsel for the appellant is well founded and must prevail."
The Constitution Bench in Maru Ram and others v. Union of
India and others, (1981)1 SCC 107, has held that sentencing is a
judicial function, but the execution of the sentence after the Court
pronounces the pronouncement is ordinarily the matter with the
executive. It was held that once the sentence has been imposed, the
only way to terminate it before the stipulated term is by action under
Sections 432/433 of the Code or Articles 72/161 of the Constitution.
It also held that remissions by way of a reward or otherwise cannot
cut down the sentence as such and grant final exit passport for the
prisoner except by the Government action under Section 432(1) of the
Code to grant remission of the remaining sentence. The Court held to
the following effect:-
Criminal Writ Petition No. 838 of 2011 ( 7)
"23......No remission, however long, can set the prisoner free at the instance of the State, before the judicial sentence has run out, save by action under the constitutional power or under Section 432. So read, the inference is inevitable, even if the contrary argument be ingenious, that Section 433-A achieves what it wants- arrest the release of certain classes of `lifers' before a certain period, by blocking Section 432. Arts. 72 and 161 are, of course, excluded from this discussion as being beyond any legislative power to curb or confine.
24.......In the first place, an order of remission does not wipe out the offence; it also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a Court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the Court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court."
The Court concluded as under:-
"72. We conclude by formulating our findings.
(1) and (2) xx xx xx
(3) We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution, but release will follow, in life sentence cases, only on Government making an order enmasse or individually, in that behalf.
Criminal Writ Petition No. 838 of 2011 ( 8)
(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
(5) xx xx xx
(6) We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned the prisoner can claim release only if the remaining sentence is remitted by Government."
In a later judgment reported as Swamy Shraddananda @ Murali
Manohar Mishra v. State of Karnataka, (2008) 13 SCC 767, while
noticing various judgments on the issue, the Court held that the
sentence of life imprisonment could not be treated a term of 14 years
or 20 years and that a convict undergoing imprisonment for life could
not claim remission as a matter of right. It was held to the following
"74. At this stage, it will be useful to take a very brief look at the provisions with regard to sentencing and computation, remission etc. of sentences. Section 45 of the Penal Code defines "life" to mean the life of the human being, unless the contrary appears from the context. Section 53 enumerates punishments, the first of which is death and the second, imprisonment for life. Sections 54 and 55 give to the appropriate Government the power of commutation of the sentence of death and the sentence of imprisonment for life respectively. Section 55 A defines "appropriate Government". Section 57 provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.
75. It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life. Criminal Writ Petition No. 838 of 2011 ( 9)
76. It is equally well settled that Section 57 of the Penal Code does not in any way limit the punishment of imprisonment for life to a term of twenty years. Section 57 is only for calculating fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. (See: Gopal Vinayak Godse (supra) and Ashok Kumar alias Golu (supra). The object and purpose of Section 57 will be clear by simply referring to Sections 65, 116, 119, 129 and 511 of the Penal Code.
77. This takes us to the issue of computation and remission etc. of sentences. The provisions in regard to computation, remission, suspension etc. are to be found both in the Constitution and in the statutes. Articles 72 and 161 of the Constitution deal with the powers of the President and the Governors of the State respectively to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Here it needs to be made absolutely clear that this judgment is not concerned at all with the Constitutional provisions that are in the nature of the State's sovereign power. What is said hereinafter relates only to provisions of commutation, remission etc. as contained in the Code of Criminal Procedure and the Prisons Acts and the Rules framed by the different States."
Relying upon the judgment of the Privy Council in Pandit
Kishori Lal v. King Emperor, AIR 1954 PC 64 and Gopal Vinayak's case
(supra), the Court commuted the death sentence to life imprisonment
and further directed that the convict must not be released from the
prison for the rest of his life for specific term as specified in the order.
In Ranjit Singh's case (supra), the Hon'ble Supreme Court
has held as under:-
"8......the earlier sentence of imprisonment for life being understood to mean as sentence to serve the remainder of life in prison unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence on a subsequent conviction of imprisonment for a term or Criminal Writ Petition No. 838 of 2011 ( 1
imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that matter anyone is beyond human might. It is this obvious situation which is dated in sub-section (2) of Section 427 since the general rule enunciated in sub-section (1) thereof is that without the Court's direction the subsequent sentence will not run concurrently, but consecutively. The only situation in which no direction of the Court is needed to make the subsequent sentence run concurrently with the previous sentence is provided for in sub-section (2) which has been enacted to avoid any possible controversy based on sub-section. (1) if there can be no express direction of the Court to that effect. Sub-section (2) is in the nature of an exception to the general rule enacted in sub-section (1) of Section 427 that a sentence on subsequent conviction commences on expiry of the first sentence unless the Court directs it to run concurrently. The meaning and purpose of sub-sections (1) & (2) of Section 427 and the object of enacting sub-section (2) is, therefore, clear."
In view of the said observation, the court proceeded to
hold that any remission or commutation in respect of the earlier
sentence granted to a convict is not in respect of the second sentence.
"9....any remission or commutation is granted in respect of the earlier sentence of life imprisonment alone then the benefit of that remission or commutation will not ipso facto be available in respect of the subsequent sentence of life imprisonment which would continue to be unaffected by the remission or commutation in respect of the earlier sentence alone. In other words, the operation of the superimposed subsequent sentence, of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission or commutation has been granted by the appropriate authority. The consequence is that the petitioner would not get any practical benefit of any remission or commutation respect of his earlier sentence because of the superimposed subsequent life Criminal Writ Petition No. 838 of 2011 ( 1
sentence unless the same corresponding benefit in respect of the subsequent sentence is also granted to the petitioner. It is in this manner that the direction is given for the two sentences of life imprisonment not to run concurrently."
In Najakat Alia Mubarak Ali, case (Supra), it was held that the
sentence of life imprisonment imposed on the same person in two
different convictions would converge into one and thereafter it would
flow through one stream alone. It was held to the following effect:-
"Thus, the sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter it would flow through one stream alone. Even if the sentence in one of those two cases is not imprisonment life but only a lesser term the convergence will take place and the post- convergence flow would be through the same channel. In all other cases, it is left to the Court to decide whether the sentence in two different convictions should merge into one period or not. If no order is passed by the Court the two sentences would run one after the other. No doubt Section 427 is intended to provide amelioration to the prisoner. When such amelioration is a statutory operation in cases falling under the second sub-section it is a matter of choice for the court when the cases fall within the first sub- section. Nonetheless, the entire section is aimed at providing amelioration to a prisoner. Thus, a penumbra of the succeeding section can be glimpsed through the former provision."
In Ranjit Singh's case (supra), it has been held that the second
conviction and sentence is super imposition over the first sentence,
whereas in Najakat Alia Mubarak Ali's case (supra), the Court has
used the expression convergence of the first sentence. It may be
noticed that the judgment in Ranjit Singh's case was not brought to
the notice of the Court in Najakat Alia Mubarak Ali's case (supra), but
the expression "super-imposition" used in Ranjit Singh's case and Criminal Writ Petition No. 838 of 2011 ( 1
"convergence" in Najakat Alia Mubarak Ali's case (supra), are not
contradictory to each other and leads to same inference in law.
In Shamsher Singh v. State of Punjab, 2011(3) RCR (Criminal)
119, a Division Bench of this Court modified the judgment in appeal
and held that the subsequent sentence of life imprisonment shall run
concurrently with the sentence of life imprisonment awarded in the
earlier case, from the date the convict was arrested in the later case.
The Court observed to the following effect:-
"4.....It is well settled by now that imprisonment for life is a sentence for the remainder life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority and a person has only one life span. There is no fixed term in a life sentence and superimposing another life sentence on a subsequent conviction will be a futile exercise since the offender has already been sentenced to imprisonment for life. The problem can arise if the earlier sentence of imprisonment for life is commuted or remitted by the appropriate authority as in that eventuality the sentence or life imprisonment awarded subsequently, if both the offences were committed within a short span of time, may also, in a way, practically come to an end."
A Single Bench of this Court in Baghail Singh v. State of
Punjab, 2004(4) RCR (Criminal) 518, held that where the accused was
already undergoing imprisonment for life when he was convicted and
sentenced to undergo imprisonment for 10 years in the subsequent
case, it has been held that after remission, the life imprisonment
becomes imprisonment for a term. The Court observed as under:-
"5. Interpretation of Section 427(2) Cr.P.C. has to be done in such a way that it harmonises with the intention of the Legislature and with the true meaning of the words used therein. When a person is undergoing a sentence of imprisonment for life, it means that his sentence shall continue till his life ends. It is only on the basis of remission of sentence or a commutation of sentence that convicts undergoing imprisonment for life Criminal Writ Petition No. 838 of 2011 ( 1
are released without completing their whole life in custody. When courts award imprisonment for life it means just that - imprisonment for life, nothing less. Therefore, the remissions or commutations under Sections 432 to 433 are not judicial verdicts in the true sense. A sentence of imprisonment for life may be reduced to a sentence for a term of 10 years or 14 years as the case may be, by remission or commutation. Nevertheless, imprisonment for life remains an imprisonment for life. It is actually stating the obvious that all subsequent sentences shall run concurrently with a previous imprisonment for life because subsequent sentences can never be consecutive with a previous imprisonment for life- there cannot be more than one life, even for cats."
In the aforesaid case, the Court held that the moment the first
sentence is remitted or commuted, it becomes an imprisonment for a
term and the case must be taken out of the purview of sub-section (2)
of Section 427 and kept in sub-section (1) of Section 427. The said
view finds its echo in the subsequent judgment in Jaswant Singh's
In Bhagirath v. Delhi Administration, (1985)2 Supreme Court
Cases 580, a question arose whether a convict is entitled to set off
the period of detention undergone as an undertrial prisoner against
the sentence of life imprisonment. The Court held that since the life
imprisonment is for natural life, therefore, the question of setting off
the period of detention will arise only if an order is passed by the
appropriate authority under Section 432 or 433 of the Code. In the
absence of such order, the imprisonment for life would mean
according to Rule in Gopal Vinayak Godse's case, imprisonment for
the remainder of the life.
In Ramdeo Chauhan v. State of Assam, (2001)5 SCC 714, the
Supreme Court examined sovereign power of remission under Section
432 and held to the following effect:-
Criminal Writ Petition No. 838 of 2011 ( 1
"57....The section confines the power of the Government to the suspension of the execution of the sentence or remission of the whole or any part of the punishment. Section 432 of the Code gives no power to the Government to revise the judgment of the Court. It only provides power of remitting the sentence. Remission of punishment assumes the correctness of the conviction and only reduces punishment in part or whole. The word "remit" as used in Section 432 is not a term of art. Some of the meanings of the word "remit" are "to pardon, to refrain from inflicting, to give up". It is, therefore, no obstacle in the way of the President or Governor, as the case may be in remitting the sentence of death. A remission of sentence does not mean acquittal."
The expression remission or commutation of sentences find
mention in Sections 432 and 433 of the Code. Such power of
remission or commutation is different from the sovereign power
conferred by the Constitution and contained in Articles 72/161 of the
Constitution. The remission under Section 433 of the Code has to be
applied by a convict. Such remission is granted subject to conditions
contained in the order granting remission. In the event of violation of
any condition, the convict can be called upon to undergo the
remaining sentence. Therefore, a convict sentenced to undergo life
imprisonment even though released after granting remission is still
bound by the conditions granting remission. Therefore, the grant of
remission does not make life imprisonment to imprisonment for a
term, as has been observed in Baghail Singh's and Jaswant Singh's
cases (supra). The said judgments do not lay down correct law.
The power to commute the sentence is contained in Section 433
of the Code. Such power to commute the sentence can be exercised
without the consent of the person sentenced. It permits the
appropriate Government to commute the sentence of death for any Criminal Writ Petition No. 838 of 2011 ( 1
other punishment provided by the IPC; sentence of imprisonment for
life to the imprisonment for a term not exceeding 14 years or for fine
of sentence; a sentence for rigorous imprisonment to simple
imprisonment for any term to which that person might have been
sentenced, or for fine; and a sentence of simple imprisonment, for
fine. When the appropriate Government commutes sentence of life
imprisonment under Section 433 of the Code, it will be a sentence for
a fixed term. In view of the Full Bench judgment of this Court in Jang
Singh v. State of Punjab, 2008(1) RCR (Criminal) 323 and judgment in
Ranjit Singh's case (supra), the term of imprisonment for such convict
shall be governed by sub-section (1) of Section 427 and not by sub-
section (2) of Section 427 of the Code.
As per Explanation to Section 9 of the Punjab Good Conduct
Prisoners (Temporary Release) Act, 1962, punishment imposed under
Section 9 is in addition to the punishment awarded to the prisoner for
the offences, he was convicted. Therefore, the punishment under the
aforesaid Act, would be over-riding the period of conviction
contemplated under Section 427 of the Code. The successor Act in the
State of Haryana has similar provisions. Therefore, the sentence for
the offences under the Punjab or Haryana Act would be in addition to
the punishments to be undergone by the convict.
We may notice an argument raised by learned counsel for the
State that the present petition is not maintainable. We do not find any
merit in the said argument. The judgment in Kudva's case (Supra)
relied upon by the learned counsel, is in a petition filed under Section
482 of the Code. In the aforesaid case, the Courts have not ordered
running of the sentences concurrently in the cases falling within
scope of Section 427(1) of the Code. It was in these circumstances, the
Court held that jurisdiction of the High Court cannot be invoked for Criminal Writ Petition No. 838 of 2011 ( 1
annulling the order. The sentencing was within the jurisdiction of
Court. In the present case, the question is interpretation of Section
427(2) of the Code, which has the effect on the legality of the
detention of the Petitioner. Therefore, the present petition cannot be
said to be not maintainable.
Keeping in view the above discussion, in respect of the first
question, we hold that the sentence of imprisonment for life is
imprisonment for whole of the remaining period of the convicted
person's natural life but the release of such convict by grating
remission of the remaining sentence, under Section 432 of the Code,
his remaining sentence is not wiped out. It only effects the execution
of the sentence and frees the convicted person from his liability to
undergo full term of imprisonment inflicted by the Court. Such
remission does not render the life imprisonment into imprisonment of
In respect of the second question, we hold that the second
sentence is superimposed upon the first sentence as laid down in
Ranjit Singh's case (supra) or the second sentence converge into the
first sentence as laid down in Najakat Alia Mubarak Ali's case (supra).
The fact of remission of the remaining sentence of the life
imprisonment cannot be taken into consideration in respect of the
second sentence. In respect of second sentence, the period of sentence
cannot be earlier to the date of commission of the second offence.
Such period is to be counted from the day, the convict was arrested in
the second case. Thus, though the sentence in the second case
imposed upon a convict is to run concurrently with the first sentence
of life imprisonment, but it will commence from the date of his arrest
in the second case. The expression `concurrently' has to be so
Criminal Writ Petition No. 838 of 2011 ( 1
In view of the finding recorded, the present writ petition is
disposed of with direction to the State Government to determine the
period of sentence accordingly.
(VIJENDER SINGH MALIK)