Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 1038 (PNJ)

Jaswant Singh v. State of Punjab

2010-03-02

SHAM SUNDER

body2010
JUDGMENT Sham Sunder, J.:- This petition under Section 482 Cr.P.C., for direction to order the sentences, awarded in two different cases i.e. FIR No. 94, dated 13.10.94, under Section 302 Indian Penal Code, 1860, S, P.S. Sadar Mansa, and, FIR No. 97, dated 24.03.01, under Section 15 of the Narcotic Drugs and Physchotropic Substances Act, 1985 (hereinafter to be called as the ‘Act’ only), P.S. City Tohana, to run concurrently, has been filed by the petitioner. 2. FIR No. 94 dated 13.10.94, under Section 302 IPC, was registered, against the petitioner. He was convicted by the Court of Additional Sessions Judge, Mansa, and sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/-. He preferred Criminal Appeal No. 33-DB of 1996, before this Court. That appeal was dismissed on 28.02.03. He preferred Special Leave to Appeal No. 66 of 2004, in the Apex Court, which was dismissed on 05.04.05. In the meanwhile, another FIR No. 97, dated 24.03.01, under Section 15 of the Act, was registered, against the petitioner, at Police Station City Tohana. In that FIR, it was alleged, that the petitioner, was found in possession of 12 kgs poppy husk. He was convicted and sentenced to undergo rigorous imprisonment, for a period of 03 years and to pay a fine of Rs. 5000/-, on 30.07.05. In the aforesaid FIR, he preferred an appeal, in this Court. The sentence was modified and reduced to 02 years and the fine was reduced from Rs. 5,000- to Rs. 3,000/-. Accordingly, the instant petition, was filed, for ordering the running of two sentences, in both the cases concurrently. 3. I have heard the Counsel for the parties, and, have gone through the documents, on record, carefully. 4. The Counsel for the petitioner, submitted that, before the trial or the Appellate Court, such a prayer, was not made. She further submitted that the judgments, in the aforesaid FIRs, have already attained finality. She further submitted that, in these circumstances, a petition, under Section 482 Cr.P.C., is maintainable. She also placed reliance on Sher Singh Vs. State of M.P., 1989(1), RCR, 696, in support of her contention. She prayed that the sentences, in both the cases, be ordered to run concurrently. 5. She further submitted that, in these circumstances, a petition, under Section 482 Cr.P.C., is maintainable. She also placed reliance on Sher Singh Vs. State of M.P., 1989(1), RCR, 696, in support of her contention. She prayed that the sentences, in both the cases, be ordered to run concurrently. 5. After giving my thoughtful consideration, to the contentions, raised by the Counsel for the petitioner, in my considered opinion, the petition, is liable to be dismissed, for the reasons, to be recorded, hereinafter. 6. The first question, that arises for consideration, is as to whether, the provisions of Section 482 read with Section 427 Cr.P.C., can be invoked to seek direction for concurrent running of sentence, awarded to the accused, in two separate trial, for separate offences. In the instant case, no prayer was made either before the trial Court or before the Appellate Court, while passing the judgement of conviction and sentence, in the subsequent case relating to FIR No. 97 dated 24.03.01, under Section 15 of the Act, that the sentence be ordered to run concurrently with the previous sentence, awarded in another case. The judgements, in both the aforesaid cases have attained finality. Remedy having not been availed of before the trial Court or the Appellate Court, the provisions of Section 427 read with Section 482 Cr.P.C. could not be invoked, to seek such a relief. Similar principle of law, was laid down in M.R. Kudva Vs. State of Andhra Pradesh (2007(1) RCR (Criminal), 868 (SC). In view of the ratio of law, laid down, in M.R. Kudva’s case (supra), the instant petition is not maintainable. 7. The next question that arises, for consideration, is as to whether, the petitioner, was entitled, to the benefit of the provisions of Section 427(2) Cr.P.C., which provides, that a person already undergoing the sentence of imprisonment for life on a subsequent conviction to imprisonment or a term of imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. No doubt, sufficient period of sentence has already been undergone, by the petitioner, for the offence, punishable under Section 302 IPC. Section 427(2) Cr.P.C., has to be interpreted, in such a way, that it harmonizes with the intention of the Legislature and with the true meaning of the words used therein. No doubt, sufficient period of sentence has already been undergone, by the petitioner, for the offence, punishable under Section 302 IPC. Section 427(2) Cr.P.C., has to be interpreted, in such a way, that it harmonizes with the intention of the Legislature and with the true meaning of the words used therein. When a person is undergoing the sentence of imprisonment for life, it means that, his sentence, shall continue, till his life ends. It is only on the basis of remission of sentence or a commutation of sentence that, convicts undergoing imprisonment for life, are released, without completing their whole life in custody. When Courts award imprisonment for life, it means that imprisonment for life is nothing less than that. Therefore, the remission or commutation, under Sections 432 and 433 Cr.P.C., are not judicial verdicts, in the true sense. Sub-Section (2) operates, where the first or previous sentence is of imprisonment for life. It would be at the time of consideration of the second or subsequent sentence that the sentencing Court, must consider, whether sentence, should be consecutive or concurrent, in relation to the first. Sub-Section (1) provides that the subsequent sentence shall commence, at the expiration of the previous sentence, unless the Court directs the sentence to run concurrently with the previous sentence. Sub-Section (2) leaves no choice with the Court, because all the subsequent sentences, must run concurrently with imprisonment for life. Difficulty arises only, in cases, where the previous sentence is imprisonment for life, but the sentence is suspended or remitted by the government, under Section 432 Cr.P.C., or commuted, under Section 433 Cr.P.C. Under Section 427 (2) Cr.P.C., a Court, passing the subsequent sentence, on a person, undergoing imprisonment for life, is not required, to give any direction regarding consecutive or concurrent operation. Can it be said that; at all times and under every situation, the subsequent sentence, shall be concurrent, as provided by sub-section (2) irrespective of how serious or grave the second or subsequent offence is. Let us by way of illustration presume that a person undergoing imprisonment for life for murder, while on parole commits an offence and compare this case with that of a robber, who is undergoing imprisonment for five years, who escapes and commits a series of robberies. Let us by way of illustration presume that a person undergoing imprisonment for life for murder, while on parole commits an offence and compare this case with that of a robber, who is undergoing imprisonment for five years, who escapes and commits a series of robberies. In that event, the sentence of murderer, shall run concurrently with his previous sentence, while the sentence of the robber, shall unless otherwise stated run consecutively with the previous sentence. If the murderer earns remission or commutation of his previous sentence, then he would get off rightly, as subsequent concurrent sentences, may also come to an end, when the previous sentence ends. No such benefit, would be available, to the robber, who would continue to serve consecutive sentence. Does not this example illustrate a strange contradiction in terms? The petitioner, herein, is seeking to derive benefit from this anomalous situation. This simply cannot be permitted. Therefore, it would be better, to hold, that the cases, which fall, under Sub-Section (2) are only those very rare cases, where the first sentence is well and truly imprisonment for life. The moment the first sentence is remitted or commuted, it becomes imprisonment for a term and the case, must be taken out of Sub-Section (2) and put in Sub-Section (1). 8. Similar question came up for decision, before the Apex Court, in Ranjit Singh Vs. Union Territory of Chandigarh and another, 1991, Crl. L.J., 3354. The accused, in that case, who was earlier convicted for murder and awarded life imprisonment, committed a second murder, while he was released on parole. On appeal against his conviction, under Section 303 IPC, for the second murder, the Supreme Court, altered the conviction to one under Section 302 IPC, and sentenced him to life imprisonment. The Court was of the view that since the second murder, was committed, by the accused, within a span of one year of his earlier conviction, and that too, when he was released on parole, the second sentence of imprisonment for life, awarded to him, should not run concurrently with his earlier sentence of life imprisonment. The Court, therefore, directed that, in case, any remission or commutation, in respect of his earlier sentence, was granted, to him, the later sentence, should commence thereafter. The Court, therefore, directed that, in case, any remission or commutation, in respect of his earlier sentence, was granted, to him, the later sentence, should commence thereafter. The direction of the Court, was challenged, through a Writ Petition, and it was held, that the direction, has to be construed, so as to harmonize with Section 427(2) Cr.P.C., which is the statutory mandate apart from being the obvious truth. It was clarified that if any remission or commutation, granted in respect of the earlier sentence of life imprisonment, then the benefit of the remission or commutation will not ipso-facto be available, in respect of the subsequent sentence of life imprisonment, which would continue to be unaffected by the remission or commutation, in respect of the earlier sentence alone. The intended consequence was that the accused, would not get any practical benefit of any remission or commutation, in respect of his earlier sentence, because of the superimposed subsequent life sentence, unless the same corresponding benefit, in respect of the subsequent sentence, is also granted to the accused. It was, in this manner, that the direction, was given, for the two sentences of life imprisonment not to run concurrently. Therefore, the conclusion, is that, the sentence imposed in a separate trial for different offence, subsequently upon the petitioner, shall be consecutive and not concurrent. 9. For the reasons recorded above, Criminal Misc. No. M-21695 of 2009, fails and the same stands dismissed. Any observation, made in this order, shall not be taken, as an expression of mind, on merits of the case. 10. Registry is directed, to comply with the order, by sending the copy thereof, to the Court concerned. —————