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PETITIONER: RANJIT SINGH

       Vs.

RESPONDENT: UNION TERRITORY OF CHANDIGARH & ANR.

DATE OF JUDGMENT23/08/1991

BENCH: VERMA, JAGDISH SARAN (J) BENCH: VERMA, JAGDISH SARAN (J) VENKATACHALLIAH, M.N. (J) OJHA, N.D. (J)

CITATION:  1991 AIR 2296            1991 SCR  (3) 742  1991 SCC  (4) 304        JT 1991 (3)   550  1991 SCALE  (2)396

ACT:  Code  of  Criminal  Procedure, 1973:  Ss.  427,  433A--Life convict  --Convicted of another murder--Subsequent  Sentence of life imprisonment--Whether superimposition to the earlier life sentence-Remissions or commutation in respect of earli- er  sentence--Whether  available ipso facto  in  respect  of Second sentence.     Indian Penal Code, 1960: S. 302--Life convict--Trial for second      murder--Conviction--Imposition      Of      Life sentence--Whether both life sentences to run concurrently.     Constitution of India: Article  32--Offender--Separately sentenced  to life imprisonment for two  different  offences under  section  302 IPC--Court’s direction that in  case  of remissions  or commutation in respect of  earlier  sentence, the  latter sentenced to run  thereafter-Interpretation  of- Writ  Petition challenging the  sentence--Whether  maintain- able.

HEADNOTE:     The  petitioner who was convicted under section  302-IPC on  6.3.1979  and sentenced to life imprisonment;  was  also tried  for a second murder committed while he was on  parole after his conviction and sentence for the first murder,  and was convicted under s. ’303 IPC. Altering the conviction  to one  under  s.  302 IPC, for the second  murder  this  Court sentenced him to life imprisonment instead of death sentence and  by its judgment dated 30.9.1983 directed that  in  case any  remission  and commutation in respect  of  his  earlier sentence  ’was granted, the latter sentence should  commence thereafter.     The petitioner filed a writ petition under Article 32 of the Constitution. praying for his release on the ground that both  the life sentences had to run concurrently in  accord- ance  with s. 1427(2) Cr. P.C., and as he had  undergone  14 years  sentence of imprisonment with remissions at the  time of  filing the writ petition on .February 19, 1990,  he  was entitled to be released.’It was contended that this  Court’s direc, tion dated 30.9.83 was .contrary to s. 427(2) of  the Code of Criminal 743

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Procedure, 1973 since it amounted to directing that the  two sentences of life imprisonment were to run consecutively and not concurrently. On  behalf  of  the respondents it was  contended  that  the direction of this        Court, properly construed, was  not contrary to.s. 427(2) Cr. P.C. and, therefore, the  question of  issuing any writ or directions as claimed by  the  peti- tioners did not arise.     Disposing of the petition treating it as one for  clari- fication of the judgment dated 30.9.1983 this Court,     HELD:  1.1  A  sentence of transportation  for  life  or imprisonment for life must prima facie be treated as  trans- portation  or  imprisonment for the whole of  the  remaining period  of  the convicted person’s natural life  unless  the remaining sentence is ’commuted or remitted by the appropri- ate  authority. This being so at the stage of sentencing  by the  Court on a subsequent conviction, the earlier  sentence of  imprisonment for life must be understood in this  manner and,  therefore,  there can b no question  of  a  subsequent sentence  of  imprisonment for a term or  for  life  running consecutively  which is the general rule laid down in  sub-s (1) ors. 427, Cr. P.C. [747G; 749D-E]     1.2 The earlier sentence of imprisonment-for life  being under  stood to mean as sentence to serve the  remainder  of life in prison unless commuted or remitted by the  appropri- ate  authority and a person having only one life  span,  the sentence  on a subsequent conviction of imprisonment  for  a term  or imprisonment for life as envisaged by s. 427(2)  of the  Cr. P.C., 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. [749F-G]     It  cannot be said that a sentence of life  imprisonment is  to  b treated asasentence of imprisonment  for  a  fixed term. [748B]     Gopal  Vinayak Godse v. The Stateof Maharashtra &  Ors., [1961]  3 S.C.R. 440 and MaruRam v. Union of India  &  Anr., [1981] 1 S.C.R 1196, followed.     2.1  The operation of the superimposed  subsequent  sen- tence  of Iife imprisonment should not be wiped  out  merely because in respect of to correspondingI earlier sentence  of life  imprisonment any remission or commutation was  granted by the appropriate.authority. [75lF-G] 744     2.2 In the instant case, the last sentence in the direc- tion  meant that in case, any remission or  commutation  was granted in. respect. of the earlier sentence of life impris- onment alone then the benefit of that remission or  commuta- tion  would  not ipso facto be available in respect  of  the subsequent sentence of life imprisonment which would contin- ue  to  be  unaffected by the remission  or  commutation  in respect of the earlier sentence alone. The consequence would be  that the petitioner would not get any practical  benefit of  any remission or commutation in respect of  his  earlier sentence  because of the superimposed subsequent  life  sen- tence  unless the same corresponding benefit in  respect  of the subsequent sentence was also granted to the  petitioner. It was in this manner that the direction ’was given for  the two sentences of life imprisonment not to run  concurrently. [750E-H; 751A]     The  subsequent sentence of imprisonment for  life  had, therefore, to run concurrently with the earlier sentence  of imprisonment for life awarded to the petitioner. [750C-D]     3. The general rule enunciated in sub,section (1) of  s. 427  Cr.  P.C.  is that without the  Court’s  direction  the

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subsequent  sentence will not run concurrently but  consecu- tively. [749G]     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 being no express direction of the Court to that effect. [749G-H; 750A]     Sub,section (2) is in the nature of an exception to  the general  rule enacted under sub-section (1) of  section  427 0Cr. P.C. [T50A]     4.1 The mandatory minimum of 14 years’ actual  imprison- ment prescribed by s. 433A Cr. P.C. which has supremacy over the  Remission Rules and short-sentencing statutes  made  by the  various  States would not operate against  those  whose cases were decided by the trial court before the 18th Decem- ber,  1978  when s. 433A Cr. P.C.’came into  force  but  the section  would apply to those sentenced by the  trial  court after 18.12.1978 even though the offence was committed prior to that date. [748D-E]     Maru Ram v. Union of India & Anr., [1981] 1 S.C.R. 1196, followed.                                                  . 745     4.2 In the instant case, s. 433A Cr. P.C. was applicable to petitioner in respect of both sentences of life imprison- ment  since the conviction by the trial court even  for  the first murder was after 18.12.1978, the second offence itself being committed after 18.12.1978.  The mandatory minimum  of 14years’ actual imprisonment as required by s. 433A even for the  first sentence of life imprisonment was not served  out by  the  petitioner,  and, therefore,  irrespective  of  the points  raised  in the instant petition on the basis  of  s. 427(2)  Cr. P.C. the petitioner could not claim relief  much less  a  writ under Article 32 of the  Constitution  in  the absence  of  the remaining sentence being  remitted  by  the Government. [748E-G]     5.  The petitioner’s incarceration was the result  of  a valid judicial order and, therefore, there could be no valid claim  to  the infringement of any fundamental  right  which alone could be the foundation for a writ under Article 32 of the Constitution. [747E-F]

JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 116 of 1990. (Under Article 32 of the Constitution of India).     R.K. Garg, N.D. Garg, Rajiv Kr. Garg and P.C.  Choudhary for the Petitioner. U.R. Lalit and Ms. Kamini Jaiswal for the Respondents. The Judgment of the Court was delivered by     VERMA, J. The short question arising for decision by  us is the true meaning of Sub-section (2) of Section 427 of the Code of Criminal Procedure, 1973 and its effect.     For  an  Offence of murder committed  on  17.9.1978  the petitioner,  Ranjit Singh, was convicted under  Section  302 I.P.C.  by the Sessions Judge on 6..3.1979 and sentenced  to life  imprisonment which was confirmed by the High Court  of Punjab  & Haryana. While the petitioner was on parole  after his  conviction and sentence for first murder, he was  tried for  the  second murder committed On October  25,  1980  and convicted  under  Section  303 I.P.C.  This  conviction  was altered  to one under Section 302 I.P.C. and for the  second murder,  also the petitioner was sentenced by this Court  on

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30.9.  1983 to life imprisonment instead of death  sentence. This  Court while disposing of the. petitioner’s appeal,  in this manner, directed as under: 746               "We  feel that life imprisonment would be  the               proper  sentence that should  be  imposed-upon               the  appellant.  We  accordingly  reduce   the               sentence  of death imposed upon him and,  sen-               tence him to suffer rigorous imprisonment  for               life.  However, since the present  murder  was               committed by him within a span of one year  of               his  earlier conviction and that too  when  he               was released .on parole we are clearly of  the               view that the instant sentence of imprisonment               for life awarded to him should not run concur-               rently  with  his  earlier  sentence  Of  life               imprisonment.  We  therefore, direct  that  in               case  any remission or commutation in  respect               of his earlier sentence is granted to him  the               present sentence should .commence thereafter." The petitioner has now filed this Writ Petition under  Arti- cle  32 of the Constitution for issuance of a suitable  writ or  direction  to correct,the above direction given  in  the 0order  dated September 30, 1983 to bring it  in  consonance with  Section 427(2) Cr. P.C. and consequently for  his  re- lease  on  the ground that both life sentences  had  to  run concurrently in accordance with Section 427(2) Cr. P.C.  and he  is entitled to relief because he has undergone  fourteen years  sentence of imprisonment with remissions at the  time of  filing the Writ Petition on February 19, 1990.  This  is how the question of construction of Section 427(2) Cr.  P.C. arises in the present case. Section  427 of the Code of Criminal Procedure, 1973  is  as under:                         "427.  Sentence on offender  already               sentenced  for  another  offence--(1)  When  a               person  already undergoing a sentence  of  im-               prisonment  is sentenced on a subsequent  con-               viction  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  sen-               tence shall commence immediately.               747                         (2) When a person already undergoing               a  sentence of imprisonment for life  is  sen-               tenced on a subsequent conviction to.  impris-               onment  for a term or imprisonment  for  life,               the subsequent sentence shall run concurrently               with such previous Sentence .’ ’ Shri  R.K. Garg, learned counsel for the petitioner  strenu- ously urged that this Court’s above quoted direction in  the judgment  dated 30.9.1983 passed in Criminal Appeal No.  418 of  1982  while affirming the conviction under  Section  302 I.P.C. for the second murder and imposing the punishment  of life imprisonment for it ’also amounts to directing that the

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two sentences of life imprisonment are tO run  consecutively and  not concurrently which is in direct conflict with  Sub- section (2) of Section 427 Cr. P.C. He ,urged that the  life ’span  of  a  person Could be only one  and  therefore  ,any subsequent  life  sentence  must run  concurrently  and  not consecutively which is the clear mandate :of Section 427(2). On this basis, it was, urged that this Court’s direction  in the  above  manner on the petitioner’S  conviction  for  the second  offence of murder is contrary-to Section  427(2)  of the  Code 01 Criminal Procedure, 1973. This is the basis  of the reliefs claimed on behalf of the .petitioner. In  reply, Shri  U.R. Lalit. appearing. on behalf of respondents,  con- tended  that the direction of this Court properly  construed is  not contrary to Section 427(2) Cr. P.C. and,  therefore, the  question of issuing any writ or directions  claimed  by the petitioner does not arise.     We  may straightaway mention that the question of  grant of  relief  under Article 32 of the  Constitution  does  not arise on the above facts. The petitioner’s incarceration  is the result of a valid judicial order and, therefore,’  there can be no valid claim to the infringement of any fundamental right  which  alone can be the foundation for a  writ  under Article  32 of the COnstitution. The only question,  it  ap- pears,  therefore, is about the correct construction of  the direction  given  by  this  Court  in  its  judgment   dated 30.9.1983 in Criminal Appeal No. 418 of 1982 in the fight of the true meaning of Section427(2) Cr. P.C.     The meaning of a sentence of imprisonment for life is no longer  res integra; It was held by a Constitution Bench  in Gopal Vinayak Godse v. The State of Maharashtra and  Others, [1961]  3 S:C.R. 440 that a sentence of  transportation  for life or imprisonment for life must prima facie be treated as transportation Or imprisonment for the whole of the  remain- ing  period of the convicted person’s natural life.  It  was further held: 748                         "Unless the said sentence is commut-               ed or remitted by appropriate authority  under               the  relevant provisions of the  Indian  Penal               Code  or  the Code of  Criminal  Procedure,  a               prisoner  sentenced  to life  imprisonment  is               bound  in  law  to  serve  the  life  term  in               prison." The  contention that a sentence of life imprisonment was  to be  treated as a sentence of imprisonment for a  fixed  term was expressly rejected. This view was followed and reiterat- ed  in  Maru Ram v. Union of India & Ant., [1981]  1  S.C.R. 1196 while considering the effect of Section 433A introduced in  the  Code of Criminal Procedure, 1973 with  effect  from 18.12.1978.  The Constitution Bench in Maru  Ram  summarised one of its conclusions as under:               "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  Govern-               ment." Another conclusion in Maru Ram was that the mandatory  mini- mum  of 14 years’ actual imprisonment prescribed by  Section 433A  which  has  supremacy over  the  Remission  Rules  and short-sentencing  statutes made by the various  States  will not  operate against those whose cases were decided  by  the trial court before the 18th December, 1978 when Section 433A came  ’into  force  but Section 433A would  apply  to  those sentenced  ’by the trial court after 18.12.1978 even  though

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the  offence  was committed prior to that date.  From  these decisions  it  is obvious that the mandatory minimum  of  14 years’.  actual imprisonment prescribed by Section  433A  is applicable  to  petitioner in respect of both  sentences  of life  imprisonment since the conviction by the  trial  court even for the first murder was after 18.12.1.978, the  second offence  itself being committed after ’18.12.1978. There  is no  dispute that the mandatory minimum of 14  years’  actual imprisonment, as required by Section 433A even for the first sentence  of life imprisonment, has not been served  out  by the  petitioner and, therefore, irrespective of  the  points raised  in this petition on the basis of Section 427(2)  Cr. P.C.  the  petitioner cannot claim relief much less  a  writ under  Article 32 of the Constitution in the absence of  the remaining  sentence being remitted by the  Government.  This alone is sufficient to refuse any relief under Article 32 of the Constitution.     The question now is of the meaning of Section 472(2) Cr. P.C,  and  its effect, in the present case, in view  of  the above quoted direc- 749  tion Of this Court in its judgment dated 30.9.1983.     Sub-section (1) of Section 427Cr. P.C. provides for  the situation  when  a person already undergoing a  sentence  of imprisonment  is  sentenced on a  subsequent  conviction  to imprisonment  or  life imprisonment. In  other  words,  Sub- section  (1) of Section 427 Cr. P.C. deals with an  offender who  while undergoing sentence for a fixed term  is’  subse- quently  convicted to imprisonment for a fixed term  or  for life.  In such a situation, the first sentence, being for  a fixed  term, expires on a definite date which is known  when the  subsequent  conviction is made., Sub-section  (1)  says that  in’ such a situation, the date of expiry of the  first sentence  which  the  offender is  undergoing  being  known, ordinarily  the  subsequent sentence would commence  at  the expiration  of  the first term of  imprisonment  unless  the Court  .directs the subsequent sentence to run  concurrently with the previous sentence. Obviously, in cases’ covered  by Sub-section (1)where the sentence is for a fixed’ term,  the subsequent  sentence Can be consecutive unless  directed  to run  concurrently. Sub-section (2), on the other hand,  pro- vides  for  an  offender "alreadly  undergoing  sentence  of imprisonment  for  life" who is sentenced  on  a  subsequent conviction  to  imprisonment for a term or for life.  It  is well-settled  since  the  decision of this  Court  in  Gopal Vinayaka Godse and reiterated in Maru Ram that  imprisonment for life is a sentence for the remainder or the life of  the offender unless the remaining sentence is commuted or remit- ted by the appropriate authority. This being so at-the.stage of  sentencing by the Court On a 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. impriosnment for a term or for  life running consecutively which is the general rule laid down in Sub-.  section (1) of Section 427. As  rightly  contended’by Shri  Garg,  and  not disputed by Shri  Lalit,  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  subse- quent conviction of imprisonment for a term or  imprisonment for  life can only be superimposed to the earlier life  sen- tence 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

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stated 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 subse-. quent sentence will.  not run  concurrently, but consecutively. The only situation  in which no direction of the Court is needed to make the subse- quent  sentence run concurrently with the previous  sentence is 750 provided  for in Sub-section (2) which has been  enacted  to avoid any  possible controversy based on Sub-section. (1) if there be no express  direction of the Court to that  effect. Sub-section  (2)  is  in the nature of  anexCeption  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  en,acting  Sub-section ?)is, therefore, Clear.. We are not required to say anything regarding the practical. effect  of remission or commutation of the  sentences  since that  question  does    not arise in the present  case.  The limited  controversy before us has been indicated. The  only question  now  is of ’the meaning and effect  of  the  above quoted direction in this Court’s judgment dated 30.9.1983 It is  obvious that the direction .of this Court must  be  con- strued  to harmonise with Section 427(2) Cr. P.C.  which  is the  statutory mandate apart from being the  obvious  truth. The subsequent sentence of imprisonment for life has, there- fore,  to  run  concurrently with the   read  as  sentenceof imprisonment  for  life  awarded  to  the  petitioner.  Thed exercise  is to construe the last sentence in the  direction which re under:             "We, therefore, direct that in case any remission or commutation .in respect of his earlier sentence is grant- ed to him the present sentence should commence thereafter." It is in the background of this ultimate direction that  the proceeding portion has to be read. This last sentence in the direction  means that in case, 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  sub. sequent sentence of  life  imprisonment  which would continue to be unaffected by the remission or commuta- tion  in  respect of the earlier sentence  alone.  In  other WordS,  the  operation of the superimposed  subsequent  sen- tence, 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  sen- tence  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 impri- 751 sonment not to run concurrently.     The ultimate direction contained in the last sentence is obviously  for this purpose. So construed the  direction  of this  Court  in  the judgment dated  30.9.1983  in  Criminal Appeal No. 418 of 1982 fully harmonises with Section  427(2) Cr.  P.C. This is the clarification we make of this  Court’s judgment  dated  30.9. 1983 in Criminal Appeal No. 4  18  of 1982.

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   We  have  already  stated that this  petition  ’for  the issuance  of a writ Under Article 32 of the Constitution  is untenable. We have, there- ’  fore, treated it as a petition for clarification  of  the judgment dated 30.9.1983 in Criminal Appeal No. 418 of 1982. Accordingly, the petition is disposed of with this  clarifi- cation. R.P.                                     Petition disposed of. 752