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2010 DIGILAW 2473 (PNJ)

Shamsher Singh alias Shera v. State of Punjab

2010-08-27

MOHINDER PAL, SATISH KUMAR MITTAL

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JUDGMENT 1. Trial Judge, while passing the impugned sentence order did not mention as to whether the subsequent sentence of life imprisonment awarded to accused- appellant Rajesh Kumar alias Bindu alias Chohan in this case shall run concurrently with the imprisonment awarded to accused-appellant Rajesh Kumar alias Bindu alias Chohan by the learned Additional Sessions Judge, Gurdaspur, vide judgment of conviction and the sentence order dated 5.8.1988 in the earlier case bearing F.I.R. No. 153 dated 29.12.1986 under Section 302 of the Code registered at Police Station City, Gurdaspur, or would run consecutively. As noticed earlier, the instant crime was committed by accused-appellant Rajesh Kumar alias Bindu alias Chohan while on parole after having been convicted and sentenced by the learned Additional Sessions Judge, Gurdaspur, in case F.I.R. No. 153 dated 29.12.1986 under Section 302 of the Code registered at Police Station City, Gurdaspur. After committing the instant crime, the said accused-appellant was also involved in case F.I.R No. 384/2001 under Sections 452, 382, 328 of the Code registered against him at Police Station Gandhinagar in the State of Jammu and Kashmir. It shows that accused- appellant Rajesh Kumar alias Bindu alias Chohan is a desperado and a habitual offender. It is well-settled that habitual offenders should not be given same treatment given to normal offenders. 2. Section 427 of the Code of Criminal Procedure deals with the point at issue, which, for facility of reference is reproduced as below :- "427. Sentence on offender already sentenced for another offence. - (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 he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence : Provided xx xx xx. (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." 3. Sub-section (1) of Section 427 of the Code of Criminal Procedure provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or life imprisonment. Sub-section (1) of Section 427 of the Code of Criminal Procedure provides for the situation when a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or life imprisonment. Sub-section (1) ibid thus deals with an offender who while undergoing sentence for a fixed term is subsequently convicted to imprisonment for a fixed term or for life and 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 recorded. Sub-section (1) ibid provides 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. A Full Bench of this Court in the case of Jang Singh v. State of Punjab, 2007(2) I.L.R (Punjab) 550 : 2008(1) AICLR 493, after referring to a catena of judgments of the Honble Supreme Court, held that there are no set guide- lines, principles which would govern the exercise of discretion under Section 427(1) of the Code of Criminal Procedure. This Section leaves a judicial discretion with the Courts to exercise such discretion depending on the facts and circumstances of each case. 4. However, sub-section (2) ibid deals with an offender who is already undergoing a sentence of imprisonment for life and is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life. It is well-settled by now that imprisonment for life is a sentence for the remainder life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority and a person has only one life span. There is no fixed term in a life sentence and superimposing another life sentence on a subsequent conviction will be a futile exercise since the offender has already been sentenced to imprisonment for life. The problem can arise if the earlier sentence of imprisonment for life is commuted or remitted by the appropriate authority as in that eventuality the sentence or life imprisonment awarded subsequently, if both the offences were committed within a short span of time, may also, in a way, practically come to an end. The problem can arise if the earlier sentence of imprisonment for life is commuted or remitted by the appropriate authority as in that eventuality the sentence or life imprisonment awarded subsequently, if both the offences were committed within a short span of time, may also, in a way, practically come to an end. However, in this case, as noticed above, life imprisonment was awarded to accused- appellant Rajesh Kumar alias Bindu alias Chohan by the learned Additional Sessions Judge, Gurdaspur, in the earlier case bearing F.I.R. No. 153 dated 29.12.1986 under Section 302 of the Code registered at Police Station City, Gurdaspur, vide judgment of conviction and the sentence order dated 5.8.1988 whereas in the instant case bearing F.I.R. No. 127 dated 22.9.2001 under Section 302 read with Section 34, Section 120-B of the Code and Section 25 of the Act registered against the accused at Police Station Dasuya vide judgment of conviction and the sentence order dated 18.11.2003. As noticed earlier, the instant crime was committed by accused-appellant Rajesh Kumar alias Bindu alias Chohan while on parole after having been convicted and sentenced by the learned Additional Sessions Judge, Gurdaspur, in case F.I.R. No. 153 dated 29.12.1986 under Section 302 of the Code registered at Police Station City, Gurdaspur. In this view of the matter, the trial Judge ought to have ordered that the sentence of life imprisonment awarded to accused-appellant Rajesh Kumar alias Bindu alias Chohan subsequently in the instant case should run concurrently with the sentence of life imprisonment awarded to him in the earlier case from the date when he was arrested in the instant case. Sub- section (2) of Section 427 of the Code of Criminal Procedure is in the nature of an exception to the general rule enacted in sub-section (1) ibid that a sentence on subsequent conviction commences on expiry of the first sentence unless the Court directs to run concurrently. The meaning and purpose of sub- sections (1) and (2) ibid and the object of enacting sub-section (2) is, therefore, clear. Sub-section (2) ibid has, in fact, been enacted to avoid any possible controversy based on sub-section (1) if there is no express direction of the Court to the effect that the subsequent sentence shall run concurrently with the previous sentence. Sub-section (2) ibid has, in fact, been enacted to avoid any possible controversy based on sub-section (1) if there is no express direction of the Court to the effect that the subsequent sentence shall run concurrently with the previous sentence. For this view, support is sought from the decision of the Honble Supreme Court in the case of Ranjit Singh v. Union Territory of Chandigarh and others, 1991 AIR (SC) 2296 : 1991(3) Crimes 414 : 1991(3) SCR 742. 5. In view of the above and keeping in view the fact that accused-appellant Rajesh Kumar alias Bindu alias Chohan is a habitual offender, as mentioned above, we are of the considered opinion that the sentence of life imprisonment awarded to him in the instant case should run concurrently with the sentence of life imprisonment imposed upon him in case F.I.R. No. 153 dated 29.12.1986 under Section 302 of the Code registered at Police Station City, Gurdaspur, from the date when he was arrested in this case. We order accordingly.