Pala Singh vs The State of Punjab

Gopal Singh, J.—This is petition u/s 561-A of the Code of Criminal Procedure by Pala Singh against the State of Punjab praying for issue of direction to the Superintendent, Central Jail at Patiala for running concurrency the subsequent sentences of life imprisonment and imprisonment for one year with the previous sentence of life imprisonment.

The petitioner was convicted u/s 302, Indian Penal Code and sentenced to imprisonment for life by the Additional Sessions Judge, Ferozepore, by his judgment dated December 12, 1963. While serving that sentence, the petitioner was convicted u/s 303 read with Section 149 and Section 148, Indian Penal Code and was sentenced to death and to a term of rigorous imprisonment for one year by the Additional Sessions Judge, Barnala, by his judgment dated January 31, 1968. A mercy petition for remission or else for commutation of sentence of death was presented on behalf of the petitioner. By order dated March 10, 1969, the sentence of death was communed into one of imprisonment for life. In the present petition, it is contended that by virtue of the provisions of sub-section (2) of Section 397 of the Code of Criminal Procedure, the subsequent two sentences should have been directed to run concurrently with the earlier one and that it is a fit case for the omission to give that direction as enjoined by the imperative provision of sub-section (2) of Section 397 of the Code to be filed in by a direction to be given by this Court.

A preliminary objection has been raised on behalf of the respondent State that the present petition for issue of such direction is not maintainable inasmuch as neither any direction has been given by the Additional Sessions Judge, who awarded the subsequent two sentences nor by the President of India in his order of commutation and that this Court cannot fill in the lacunae in their orders.

The preliminary objection raised has no force whatsoever. This Court has ample power under Sections 491(1)(a) and 561-A of the Code of Criminal Procedure and under Article 226 of the Constitution to issue the type of direction prayed for. The scope of these provisions is wide enough to protect the interest of a convict by issuing the direction to carry effect the mandatory provision of sub-section (2) of Section 397 of the code. It is also contended that neither the Additional Sessions Judge in his judgment nor the President of India in his order provided for any direction under sub-section (2) of Section 397 of the Code and consequently this Court should not give any direction, which had not been given by them. The cause of action of the petitioner is this very omission to apply that mandatory provision. They having failed to apply that provision, the direction solicited has to go to make it applicable. The contention urged begs the very question raised on behalf of the petitioner and has no substance. The preliminary objection raised is overruled.

The State has not seriously contested on merits the point raised on behalf of the petitioner that it is a fit case for issue of direction in terms of sub-section (2) of Section 397 of the Code. The obligatory provision of sub-section (2) of Section 397 runs as follows:

When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment or imprisonment for life, the subsequent sentence shall run concurrency with such previous sentence.

When the above provision applies, no Court or an executive authority can ignore to issue direction in its terms. The provision is a command of the legislature for issue of a direction for the concurrent running of the subsequent sentence of imprisonment or imprisonment for life with the previous sentence of imprisonment for life. That having not been done, it is a fit case for the direction as prayed for being issued.

In the result, the petition is allowed and it is directed that the subsequent sentences of imprisonment for one year and imprisonment for life shall run concurrently with the previous sentence of imprisonment for life.

D.S. Tewatia J.

I agree.