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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