Kewal Singh vs State of Punjab

Ujagar Singh, J.—The petitioner along with others was tried by the Sessions Judge, Kapurthala, in a case under sections 307/324/34 I.P.C. and under section 27 of the Arms, Act 1959 vide judgment dated 2941983, The petitioner was convicted and sentenced to undergo three years, R.I. and in Cr. A. 252SB of 1983, his sentence was reduced from three years to two years while maintaining the conviction. There was a separate case against the petitioner in respect of recovery of a spear attracting the provisions of section 25 of the Arms Act and he was tried and convicted and sentenced to six months. R.I. by the Sessions Judge. Cr. A. No. 253SB of 1983 was also filed against that conviction in this Court. K.P.S. Sandhu, J. decided both these appeals. together on 8121983. Except for the modification in, reduction of sentence from three to two years'' R.I. both the appeals were dismissed.

The prayer in this petition is for making the sentences in both the cases to run concurrently. The learned counsel has mainly relied upon Section 427 of the Code of Criminal Procedure, 1973 (Act No. 2 of 1974) which provides as follows ;

"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 be 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 is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence :

The section applies when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment and such imprisonment is to commence at the expiration of the imprisonment to which he has been previously sentenced but the Court can direct the subsequent sentence to run concurrently with such previous sentence. Reliance is placed on Bhajna v. Supdt, Central Jail, Patiala, AIR 1952 Pepsu 2 (D.B.) which related to section 397 of the old Code, which is equivalent to section 427 of the present Code quoted above. The words in the section "already undergoing the sentence of imprisonment" have been interpreted by this Division Bench as under

"When applying the principle of section 397 to a person who is convicted and sentenced to imprisonment by a Court in more than one case on the same day, the imprisonment in the case decided fist should be regarded as having commenced before that awarded in the case decided later."

It was further held therein, "so when a man is awarded imprisonment in two cases and the imprisonment in one is set aside, the result that must naturally follow is that the time which he spent in jail be credited to the imprisonment to which he was subjected in the second case. When a case can be looked at from two points of view, the accused is entitled to the benefit of the view which is more favourable to him."

In this case the petitioner was convicted and sentenced to three years'' rigorous imprisonment for an offence under section 307/324/34 Indian Penal Code and under section 27 of the Arms Act by the Sessions Judge Kapurthala. The petitioner was also convicted and sentenced to six months, rigorous imprisonment under section 25 if the Arms Act on the same day. The conviction and sentence under section 25 of the Arms Act relates to a spear which is said to have been used for commission of the main offence covered by the first order. It was a fit case wherein the provisions of Section 427 quoted above were exactly attracted to make the sentences in both the cases to run concurrently. The order in the main case is practically made earlier than the order in the connected case under section 25 of the Arms Act. The attention of the trial Court does not seem to have been drawn to the provisions of Section 427. The matter came in appeal as noted above and the sentence in the main case reduced from three years to two years while maintaining the conviction by K.P.S. Sandhu. J. (as he then was) vide his order dated 3121983. Both the appeals Cr.A. No. 252SB of 1983 and Cr. A. 253SB of 1983 were decided by one judgment. Again attention of the Court was not drawn to the provisions of section 427 of the Code quoted above. In the circumstances of the case I direct that the sentence of rigorous imprisonment for six months imposed under section 25 of the Arms Act shall be deemed to have ran concurrently along with rigorous imprisonment for two years imposed in the main case. The petition stands accepted accordingly.