Criminal Appeal No 592 1976
Appeal by Special Leave from the Judgment and Order dated 19111975 of the Karnataka High Court in Crl
A No 551 of 1974
and Reference Case No 5674 RB Datar for the appellant Narayan Nettar and RC Kaushik for the respondent
The Judgement of the Court was delivered by GOSWAMI J The short question in this
appeal by spe cial leave is whether a person sentenced to imprisonment for life and later released by the Government by remission of the sentence under section 401 Criminal Procedure Code 1898 continues to being under sentence of imprisonment for life fort the purpose of section
303 Indian Penal Code
The appellant had earlier been convicted on July 26 1961 by the High Court of Mysore under section 302 IPC and sentenced to
imprisonment for life in an appeal by the State against his acquittal
395 The earlier murder was on December 3 1959
The State Government in exercise of its power under section 401 Cr
PC conditionally remitted his sentence on Feburary 8 1972
Thus he was conditionally released from jail on Febu rary 8 1972
Tragically enough on January 27 1973 the appellant got himself involved in the present murder charge even before the expiry of the first year of his release
He was convicted under section 302 and section 303 IPC by the Sessions Judge Kolar on November 7 1974 and sentenced to death under section 303 IPC
On an appeal to the High Court by the appellant which was heard along with the refer ence for confirmation the sentence of death under section 303 IPC was confirmed on November 19 1976
Hence this appeal by special leave limited to the question of ap plicability of section 303 IPC and the sentence
The earlier sentence of imprisonment for life became final and inexorable so far as the judicial process was concerned
It is only when such a sentence is operative and executable that section 303 IPC is attracted
See Dilip Kumar Sharrna  Ors
vs State of Madhya Pradesh 1
The remission of the sentence in this case is by the State of Karnataka in exercise of its statutory power under section 401 Cr
The power has been exercised in the instant case laying down certain conditions which the convict had accepted
The two conditions were that during the unexpired period of his sentence conditionally remitted 1  he will not commit any offence punishable by any law in Mysore and 2  he will not in any way associate with per sons known to
be of bad character or lead a dissolute or evil life
The portion of the remitted sentence in this case was a period of four years and four months after the appellant had undergone over years of his sentence including a little over five years  remission earned by him in jail
In the normal course in absence of the order of remission the appellant would have been released from jail on June 1976
Shortly stated was the appellant under sentence of impris onment for life on the date of occurrence of the second murder on January 27 1973  If he was continuing to be under the sentence of imprisonment for life on that day the court cannot come to his rescue by exercising discretionary clemency in favour of the alternative sentence
Then the only sentence the court has power and is obliged to impose and no other is the sentence of death
That is the true effect of section 303 IPC
The fact that the accused is of the age of 73 years will be of no consequence once he is found guilty under section 303 IPC
The court will be helpless in such an event
The Sessions Judge as well as the High Court held that section 303 IPC was applicable as this was a case of condi tional remission under section 401 Cr
PC and the second murder was committed during the unexpired portion of the sentence of imprisonment for life
1  396 It is the correctness of the above view of the law that falls for consideration before us
That view receives support from the following decisions cited at the bar
The first decision is from the Rangoon High Court in Po Kun vs The King1
It was held in that case that if the sentence of transportation for life passed on a person is conditionally remitted by the Government under section 403  Criminal PC and the person is released such person must still be deemed to be under sentence of transportation for life in spite of the fact that he is not actually under sentence or in a penal settlement 0 The next decision is from the Punjab High Court in Sohan Singh vs The State2
It was held in that case that it is not essential for the applica tion of the section 303 IPC that a person should be actually undergoing the sentence of imprisonment for life when he commits murder
X X X X   the effect of a conditional order of remission is not to altogether wipe out or efface the remitted portion of the sentence but to
keep it in abeyance
As soon as there is breach of the conditions of the remission the remission can be cancelled and the prisoner committed to custody to undergo the unexpired portion of the sentence
In the circumstances
the accused should be deemed to be under sentence of imprisonment for life when the present occurrence took place
Our attention was drawn to a decision Of the Sind Court in Ghularn Muhammad Wali Muhammad vs Emperor3 which was a case of unconditional remission of the sentence under sec tion 401 Cr
It was held in that decision that since the Provincial Government had remitted the sentence without condition under section 401 Cr
PC the accused committing the second murder after the remission would no longer be said to be under a sentence of transportation for life that sentence having in effect been served
We are however clearly of opinion that for the purpose of section 303 IPC it does not make any difference whether the remission under section 401 Cr
PC with or without conditions
This is clear from a perusal of sub section 3 of section 401 Cr
PC which reads as follows  401 3 If any condition on which a sentence has been suspended or remitted is in the opinion of the appropriate Government not fulfilled the appropriate Government may cancel the suspension or remission and there upon the person 1 AIR 1939 Rangoon 124
2 1 Punjab 201
3 AIR 1943 Sind 114
397 in whose favour the sentence has been suspend ed or remitted may if at large be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence
0 It is manifest from the above provision that on breach of any condition of the remission there is not an automatic revival of the sentence
It will certainly be open to
the Government in a particular case to cancel the remission but it may not
The Government is not under a legal obligation to cancel the remission
It is only when the Government chooses to pass an order of cancellation of the remission of sentence that the convict is arrested and is required to serve the unexpired portion of the sentence
During the interregnum
the accused who is released cannot be said to be under a sentence of imprisonment for life
While he is in enjoyment of the freedom on account of remission that period is not even reckoned under section 401 Cr
PC for the purpose of calculation of the sentence to
be served in the eventuallty
Take the present case
Suppose during the unexpired period of this sentence which would had normally ended on January 9 1976 the accused made breach of the first condi tion of the remission giving a slap to a person an offence punishable under section 358 IPC
Clearly there is a breach of one of the conditions laid down namely that he will not commit any offence punishable by any law in Mysore
Can it be conceived that in such a case the Govern ment will immediately cancel the remission and remand him to serve the remaining period of his sentence of imprisonment for life  That is why section 401 3 Cr
PC advisedly leaves it to the option of the Government to take the penal action and there is no automatic return of the prisoner to the jail
Counsel for the State of Karnataka relies upon the above decisions and also upon the decision of this Court in Sarat Chandra Rabha and Others vs Khagendranath Nath and Others1
In Sarat Chandra Rabha case supra the ques tion of remission under section 401 Cr
PC came up for consideration in the context of a disqualification clause under section 7b of the Representation of the People Act 1951
In that case the appellant s nomination paper was rejected by the Returning Officer for incurring disqualifi cation under section 7b of the Representation of the People Act
According to section 7b of the Act a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if he is convicted by a court in India of any offence and sentenced to imprisonment for not less than two years unless a period of five years or such less period
as the Election Commission may allow in any particular case has elapsed
 since his release
It was admitted in that case that the appellant was convicted under section 4b of the Explosive Substances Act VI of 1908 and sentenced to three years  rigorous impris onment on July 10 1953 and the nomination paper was filed 1  398 in January 1957 and the election was held in Feburary 1957 Thus the period of five years had not elapsed since iris release by the State under section 401 Cr
PC on November 14 1954
This Court held in that case that section 401 Cr
PC unlike the grant of a free pardon cannot wipe out either the conviction or the sentence
and affirmed the order of rejection of the nomination paper on the ground of disqualification incurred under section 7b of the Representation the People Act
Mr Nettar for the State emphasises upon the observa tion of this Court in Sarat Chandra Rabha case supra that there is no wiping out of the conviction and sentence under section 401 Cr
PC in the present case and therefore the present appellant section conviction and sentence subsisted on the date of the second murder
In Sarat Chandra Rabha case supra this Court had to consider the effect of remission vis a vis a disqualifica tion clause under an Act which even provides for removal of disqualification by the Election Commission and which was not actually done
There is a complete purging process provided in the Representation of the People Act itself by an efflux of a period of five years from release on expiry of the sentence
Conviction and sentence recorded by a judicial court cannot be wiped out by executive remission under section 401 Cr
PC in order to set at naught the penitentiary period provided for in the Act in absence of removal of the disqualification by the Election Commission under the Act
Those were the considerations which weighed with this Court when it refused to do away with the effect of the judicial conviction and sentence merely on the basis of executive remission
Even if the sentence were run through without remission the five years  period had to elapse for commencement of new electoral life
The facturn of conviction and the sentence is sufficient and it does not matter whether it has been served out wholly or a portion of it has been remitted
The person remains convicted and sentenced for the purpose of the Representation of the People Act notwithstanding the remission
The decision in Sarat Chandra Rabha case supra does not at all support the submission that even after remission of the sentence the convict therein was under a sentence of imprisonment
No such Corollary follows flora the above decision of this Court
The observations of this Court in Sarat Chandra Rabha case supra with regard to wiping out of conviction and sentence cannot be pressed too far in a criminal trial where the provisions of the penal section have to be very strictly construed and in case of ambiguity or possibility of two views the benefit of construction must be in favour of the accused
To revert at the end to the only question with which we started
Was the appellant under sentence of imprisonment for life during the unexpired period of his imprisonment conditionally remitted under 1 section 401 Cr
PC We are clearly of opinion that an accused cannot be under a sen tence of imprisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant a judicially final sentence 399 which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401 Cr
PC Section 303 IPC is applicable only to an ac cused who on the date of commission of the second offence of murder had earlier committed a murder for which his conviction and sentence of imprisonment for life were beyond judicial controversy and were operative
Unlike in the case of section 75 Indian Penal Code section 303 IPC does not contemplate a mere enhanced punish ment for a convict with a past criminal history for the same offence
Section 303 IPC creates a most aggravated form of offence when committed by a person under sentence of impris onment for life to be punished only with death the maximum penalty under the law
A person must be actually and irrev ocably a lifer beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited with the penalty of death under section 303 IPC
If the sentence of a convict had already been remitted at the time of commission of the second murder he would cease to be an actual lifer to come within the lethal clamp of section 303 IPC
For the purpose of section 303 IPC there can be no warrant for introducing a legal fiction of being deemed to be under a sentence of imprisonment for life
The deci sion of the Punjab High Court in Sohan Singh case supra with respect is not correct
We are also with respect unable to agree with the view of the Rangoon High Court in Po Kun case supra
We find from the judgement of the trial court as well as that of the High Court that if the appellant were not con victed under section 303 IPC a sentence of death would not have been  imposed on him
For the reasons set out earlier we are clearly of opinion that the appellant is not liable for conviction under section 303 IPC and his sentence of death is therefore set aside
The judgment and order of the High Court are set aside to that extent
The appel lant however stands convicted under section 302 IPC and is sentenced to imprisonment for life
The appeal is partly allowed with the above modification of the sentence
SR Appeal allowed in part


Summary:
Section 303 IPC lays down that whoever being under sentence of imprisonment for life commits murder shall be punished with death
The appellant for the offence of murder committed on December 3 1959 had been convicted on July 26 1961 by the High Court of Mysore under section 302 IPC and sentenced to imprisonment for life in appeal by the State against his acquittal
State Government in exercise of its power under section 402 Cr
PC conditionally remitted his sentence on February 8 1972 and he was there fore conditionally released from jail on February 8 1972
The two conditions of the remission were that during the unexpired period of his sentence conditionally remitted i he will not commit any offence punishable by any law in Mysore and ii he will not in any way associate with per sons known to be of bad character or lead a dissolute or immoral life
Even before the expiry of the first year of his
release
 the appellant got himself involved on January 27 1973 in another murder charge
He was convicted under section 302 read with section 303 I PC by the Sessions Judge Kolar on November 7 1974 and sentenced to death under section 303 IPC On an appeal to the High Court which was heard along with the reference for confirmation the sentence of death under section 302 I PC was confirmed on November 19 1975
It held that section 303 IPC was applicable
as this was In case of conditional remission under section 401 Cr PC and the second murder was committed during the unexpired portion of the sentence of imprisonment for life
This Court while granting the special leave limited it to the question of applicability of section 303 IPC and the sentence
Allowing the appeal parly and modifying the sentence of death to that of life imprisonment the Court HELD 1 An accused cannot be under a sentence of im prisonment for life at the time of commission of the second murder unless he is actually undergoing such a sentence or there is legally extant judicially a final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401 Cr
PC 398 H 399 A 2 The earlier sentence of imprisonment for life became final and inexor able so far as the judicial process was concerned
It is only when such a sentence is operative and executable that section 303 IPC a attracted
395 C Dilip Kumar Sharma  Ors
State of Madhya Pradesh   referred to
3 Section 303 IPC is applicable only to an accused who on the date of commission of the second offence of murder had earlier committed a murder for which his convic tion and sentence of imprisonment for life were beyond judi cial controversy and operative
399 A 4 Unlike in the case of section 75
LPC section 303 IPC does not contemplate a mere enhanced punishment for a con vict with a past criminal history for the same offence Section 303 IPC creates a most aggregated form of offence when committed by a person under sentence of imprisonment for life to be punished only with death the maximum penalty under the law
The true effect 394 of section 303 IPC is that if the accused was continuing to be under the sentence of imprisonment for life on the day of the second murder the court cannot come to his rescue by exercising discretionary clemency in favour of the alterna tive sentence
The only sentence the court has power and is obliged to impose and no other is the sentence of death
399 B C 5 A person must be actually and irrevocably the lifer beyond the pale of judicial controversy at the time of commission controversy of the second offence of murder to be vitiated with a penalty of death under section 303 IPC
If the sentence of a convict had already been remitted at the time of commission of the second murder he would cease to be an actual lifer to come within the lethal clamp of section 303 IPC 399 C 6 For the purpose of section 303 IPC there can be no warrant for introducing a legal fiction of being deemed to be under a sentence of imprisonment for life
In the instant case the appellant is not liable for conviction under section 303 IPC 399 D Sohan Singh vs State Punjab 201 over ruled
7 Section 4013 makes it clear that for the purpose
of section 303 IPC it does not make any difference whether the remission under section 401 Cr
PC is with or without condi tions
396 F Po Kun vs King AIR 1939 Rangoon 124 Sogan Singh vs State Punjab 201 Gulam Mohammad Wali Mohammad vs Emperor AIR 1943 Sind 114 and Sarat Chandra Rabha  Ors
vs Kagendranath  Ors
19612 SCR 133 referred to
8 Section 4013 leaves it to the option of the Govern ment to take the penal action and there is no automatic return of the prisoner to the jail on breach of any condi tion of the remission
It will certainly be open to the Government in a particular case to cancel the remission but it may not
The Government is not under a legal obligation to cancel the remission
It is only when the Government chooses to pass an order of cancellation of the remission of sentence that the convict is arrested and is required to serve the unexpired portion of the sentence
During the interval the accused who is released cannot be said to be under a sentence of imprisonment for life while
is in enjoyment of the freedom on account of remission
That period is not even reckoned under section 401 Cr
PC for the purpose of calculation of the sentence to be served in the eventuality
397 B C E