Gurbax Singh vs State of Haryana

M.L. Singhal, J.

By means of this order I will dispose of Crl. Misc. Petition No. 666M of 1996; Crl. Misc. Petition No. 890M of 1996 and Crl. Misc. Petition No. 1245M of 1996 as in all these Criminal Misc. Petitions, the same question of law is involved, viz. whether the sentence awarded to Gurbax Singh, petitioner in Crl. Misc. Petition No. 666M of 1996 and Shisha Singh petitioner in Crl. Misc. Petition No. 890M of 1996 and Amrik Singh, petitioner in Crl. Misc. Petition No. 1245M of 1996 awarded in case FIR No. 7 dated 1.1.1989 can be made concurrent with the sentence awarded in case FIR No. 164 dated 1.9.1989 by two different Courts at different trials in different Sessions cases.

In case FIR No. 7 dated 1.1.1989, under Sections 307/326/324/323/325/149, 148 IPC, Shri Dhani Ram, Additional Sessions Judge, Kurukshetra sentenced Gurbax Singh; Amrik Singh and Shisha Singh to undergo RI for one year each under section 148 IPC. He sentenced them to undergo RI for five years each and to pay fine of Rs. 500/ under sections 307/149 IPC. He sentenced Shisha Singh and Gurbax Singh to undergo RI for three years and to pay fine of Rs. 500/ each under section 326 IPC. He sentenced Amrik Singh to undergo RI for three years and to pay fine of Rs. 500/ each under section 326 read with section 149 IPC. He sentenced them to undergo RI for 11/2 years each and to pay fine of Rs. 300/ each under Sections 325/149 IPC. He sentenced Amrik Singh to undergo RI for one years each under Section 324 IPC. He sentenced Gurbax Singh and Shisha Singh to undergo RI for one year each under Sections 324/149 IPC. He sentenced them to undergo RI for six months each under Sections 323/149 IPC vide order dated 16.4.1994. He ordered the sentences to run concurrently.

In case FIR No. 164 dated 1.9.1989 under Sections 148, 307/149, 302/149, 120B IPC, Shri P.C. Nariala, Additional Sessions Judge, Kurukshetra, vide judgment dated 13/14th February, 1991 convicted and sentenced them to various terms of imprisonment. In appeal, this Court convicted and sentenced them to undergo imprisonment for life under Sections 302/34 IPC for the murder of Kulwant Singh and Bidhi Shankar. They were convicted and sentenced under Sections 323/34 IPC for injury to Jagjit Singh PW to undergo one month''s R.I. The sentences were ordered to run concurrently by this Court. In these criminal misc. petitions, the prayer is that the sentences awarded in these two sessions trials be made to run concurrently with each other. Reason given in these criminal misc. petitions is that when they were sentenced in the FIR No. 7 dated 1.1.1989 on 16.4.1994 by Additional Sessions Judge, Kurukshetra, they were undergoing life imprisonment in case FIR No. 164 dated 1.9.1989 awarded to them by Additional Sessions Judge, Kurukshetra vide order dated 13/14th February, 1991. This fact was not brought to the notice of the Court, at the time, when they were sentenced in case FIR No. 7 dated 1.1.1989 on 16.4.1994. As per section 433A Cr.P.C., introduced on 18.12.1978, a lifer has to undergo imprisonment for life. Section 427(2) Cr.P.C. provides that if a person already undergoing imprisonment for life is sentenced on subsequent conviction to imprisonment for a term or imprisonment for life, subsequent sentence shall run concurrently with such previous sentence. Here, they were already undergoing imprisonment for life in case FIR No. 164 dated 1.9.1989 when they were convicted and sentenced to imprisonment to a term on 16.4.1994. Subsequent sentences should run concurrently with the previous sentence.

In each of these petitions, the prayer made, was contested by the State through separate writtenstatements filed to each of the petitions urging that the Additional Sessions Judge who passed subsequent conviction and sentence had not ordered that conviction and sentence shall run concurrently with the conviction and sentence passed earlier on 13/14.2.1991. The Superintendent, District Jail, Kurukshetra has to execute the sentences passed upon them in the manner as indicated on the warrants of commitment to jail. On the warrants of commitment to the jail, there is no indication that subsequent sentence shall run concurrently with the previous sentence. He is to execute the sentences in the manner as indicated on the Warrants of commitment to jail.

I have heard the learned counsel or the petitioners and also the State counsel in each of these petitions and have gone through the records.

Section 427 of the Code of Criminal Procedure runs as under:

"427. (1) 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;

Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonment for life in sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence,

A bare reading of both the subsections of section 427 of the Code shows in unambiguous terms that there is clear distinction between imprisonment for a term on one hand and imprisonment for life on the Subsection (1) of Section 427 of the Code deals with a situation where a person is already undergoing sentence of imprisonment for a term as distinguished from imprisonment for life and if such person is again sentenced to imprisonment for a term or imprisonment for life is subsequent conviction, the general rule laid down in subsection (1) is that unless the court directs that subsequent sentence shall run concurrently, such subsequent sentence shall commence at the expiration of earlier sentence.

Subsection (2) is exception to the above said general rule. It lays down that when a person is already undergoing sentence of imprisonment for life and he is again sentenced to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

Section 427 of the Code came up for interpretation before the Apex Court in Ranjit Singh v. Union Territory of Chandigarh and another, 1991(3) Recent Criminal Reports 470 (SC) wherein it was held that sentence of imprisonment for life is sentence for whole of the remainder of the life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority. It was, therefore, observed, "this being so, at the stage of sentencing by the court, on subsequent conviction, the earlier sentence of imprisonment for life must be understood in this manner and, therefore, there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively which is the general rule laid down in subsection (1) of section 427. Their Lordships further laid down that "the sentence on a subsequent conviction of imprisonment for a term of 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 was also held by their Lordships that any remission or commutation granted in respect of the earlier sentence of life imprisonment will not ipso facto be counted towards the subsequent life imprisonment which would from the date of its imposition remain unaffected by any such remission or commutation in respect of the earlier sentence alone. There is, however, no bar so far as authorities are concerned to grant remission or commutation in respect of both the earlier life imprisonment as well as the life imprisonment awarded in the subsequent case. In the nature of things, the subsequent life imprisonment cannot date back to the commencement of the earlier life imprisonment for the obvious reason that at the time of the commission of the earlier offence the subsequent offence may not have been committed and the subsequent imprisonment for life was not in existence.

In Harchand Singh @ Chand Singh v. State of Punjab, 1987(1) Recent CR 177 (DB) ; Karnail Singh alias Fakir Singh v. State of Punjab and another, 1990(2) Recent CR 103 and Pargat Singh and another v. The State of Punjab, 1991(1) Recent CR 199 (DB) , the same view was taken. In Malak Singh v. State of Punjab, 1991(2) Recent Criminal Reports 337 , the accused was undergoing imprisonment for life. Subsequently, he was sentenced to three months'' imprisonment in Excise case. It was held that the sentences shall run concurrently.

Vide order dated 13/14.2.1991, the Additional Sessions Judge, Kurukshetra sentenced each of the petitioners to undergo imprisonment for life. Their appeal was dismissed by this Court vide order dated 12.11.1992.

Vide order dated 16.4.1994, they were convicted and sentenced to undergo RI for five years under section 307 of the Indian Pmnal Code. They were convicted and sentenced under section 307 of the Indian Penal Code at the time when their conviction and sentence recorded in case FIR No. 164 dated 1.9.1989 was in currency. Case FIR No. 7 dated 1.1.1989 was under Sections 307/326/324/323/149 and 148 IPC. This case was decided on 16.4.1994 by Additional Sessions Judge, Kurukshetra. Case FIR No. 164 dated 1.9.1989 was under Sections 302/149, 148, 307/149, 120B IPC. It was decided by the Additional Sessions Judge, Kurukshetra on 13/14.2.1991 and by this Court on 12.11.1992, petitioners were sentenced to five years RI in case FIR No. 7 dated 1.1.1989. Petitioners were sentenced to imprisonment for life on 13/14.2.1991/12.11.1992. They were sentenced to undergo RI for five years on 16.4.1994. When case under section 307 IPC was decided, they were already under sentence of imprisonment for life vide order dated 13/14.2.1991/12.11.1992. I am driven to the view that keeping in view the law laid down by the Apex Court as also by this Court in the decisions (supra), this case squarely falls within the mischief of section 427(2) of the Code of Criminal Procedure. These petitions merit acceptance and as such are allowed and it is directed that the sentence of five years awarded in Section 307 IPC cess to the petitioners shall run concurrently with the sentence of life imprisonment awarded to them earlier in the double murder case (ibid). It is also directed that remission or commutation granted by the appropriate authority in the sentence of life imprisonment shall not ipso facto operate on the sentence awarded in section 307 IPC case.