IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. M No. 23577 of 2008 Date of Decision: February 20 , 2009 Gurmail Singh ...........Petitioner Versus State of Punjab etc. ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Deepinder Brar, Advocate for the petitioner. Mr.Amandeep Singh Rai, Assistant Advocate General, Punjab ** Sabina, J. Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure seeking issuance of directions to the respondents to treat the sentences awarded to the petitioner in FIR Nos. 68 of 1.3.1998 and 69/1998 under Sections 302, 120-B, 148, 149 of the Indian Penal Code (`IPC' for short) read with Sections 25 and 27 of the Arms Act (`the Act' for short) and under Sections 302/34 IPC, respectively, to run concurrently as per the provision of Section 427(2) of the Code of Criminal Procedure (`Code' for short). Petitioner was convicted for an offence under Sections 302, 120-B, 148, 149 IPC and 25 and 27 of the Act, vide judgment dated 17.5.2006 (Annexure P2) in FIR No. 68 of 1.3.1998 registered at Police Station Sadar, Ludhiana. Petitioner was sentenced to undergo imprisonment for life and a fine of Rs.2000/- under Section 302/34 IPC and was sentenced to undergo rigorous imprisonment for two months under Section 27 of the Act. Vide judgment dated 16.2.2008 (Annexure P3), petitioner was convicted for an offence in FIR 69/1998 registered at Police Station Crl. Misc. M No. 23577 of 2008 -2- Sadar under Sections 302/34 IPC and was sentenced to undergo imprisonment for life and a fine of Rs.5000/-. Appeals filed by the appellant against the said judgments are pending. Appellant applied for issuance of custody certificate wherein the following note has been given:- "The said convict was also convicted and sentenced in case FIR No. 68 of 01.03.98, u/s 302/34 IPC of P.S.Sadar, Ludhiana for a period of Life & fine of Rs.3000/- in default of payment of fine to further undergo RI for five months, decided on 17.05.06 by the Learned court of Sh.Harbans Lal, Sessions Judge, Ludhiana. The convict was arrested in this case on 14.11.03. The sentence in FIR No. 69/1998 will be started after completion of sentence in case FIR No.68 dated 1.3.1998." Aggrieved by the said note, petitioner has filed the present petition. Learned counsel for the petitioner has submitted that in view of Section 427 (2) of the Code, on the subsequent conviction of a convict, who is already undergoing the sentence of imprisonment for life, the subsequent sentence shall run concurrently with the previous sentence. In support of his arguments, learned counsel has placed reliance on State of Maharashtra vs. Najakat Alia Mubarak Ali, 2001 (2) RCR (Criminal) 778. Para 13 of the judgment is reproduced hereinabove:- "Thus, the sentence of life imprisonment imposed on the same person in two different convictions would converge into one and thereafter it would flow through one stream alone. Even if the sentence in one of those two cases is not imprisonment for life but only a lesser term the convergence will take place and the Crl. Misc. M No. 23577 of 2008 -3- post-convergence flow would be through the same channel. In all other cases, it is left to the Court to decide whether the sentences in two different convictions should merge into one period or not. If no order is passed by the Court the two sentences would run one after the other. No doubt Section 427 is intended to provide amelioration to the prisoner. When such amelioration is a statutory operation in cases falling under the second sub-section,it is a matter of choice for the court when the cases fall within the first sub-section. Nonetheless, the entire section is aimed at providing amelioration to a prisoner. Thus, a penumbra of the succeeding section can be glimpsed through the former provision." Learned counsel has next placed reliance on the Full Bench judgment of this Court in Jang Singh vs. State of Punjab 2008(1) RCR (Criminal) 323, wherein, reliance was placed on the decision of the Apex Court in State of Maharashtra v. Najakat Alia Mubarak Ali (supra). Learned counsel for the State, on the other hand, has submitted that the note had been given on the custody certificate in view of the decision given by this Court in Baghail Singh vs. State of Punjab , Crl. Misc. 17093 of 2003 in Crl. Appeal No. 663-SB of 2000, wherein, reliance was placed on the decision of the Apex Court in Ranjit Singh vs. Union Territory of Chandigarh and another 1991 Cr.L.J.3354. It was held that the sentence imposed upon the petitioner would run consecutively and not concurrently in terms of Section 427(2) of the Code. The Apex Court in Ranjit Singh's case (supra) has also held as under:- Crl. Misc. M No. 23577 of 2008 -4- “ It is this obvious situation which is 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 sub-sequent sentence will not run concurrently but consecutively. 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 be no express direction of the Court to that effect. Sub-section (2) is in the nature of an exception 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-section (1) and (2) of Section 427 and the object of enacting sub-section (2) is,therefore, clear. 9.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 (reported in 1983 Cri L.J. 1730). It is obvious that the direction of this Court must as to be construed 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, therefore, to run concurrently with the earlier sentence of imprisonment for life Crl. Misc. M No. 23577 of 2008 -5- awarded to the petitioner. The real exercise is to construe the last sentence in the direction which reads as under:- “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.” It is in the back ground 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 subsequent sentence of life imprisonment which would continue to be unaffected by the remission or commutation in respect of the earlier sentence alone. In other words, the operation of the superimposed subsequent sentences of life imprisonment shall not be wiped out merely because in respect of the corresponding earlier sentence of life imprisonment any remission of 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 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 petitioner. It is in this manner that the direction is given for the two sentences of life imprisonment not to run concurrently.” In the present case, the appeals filed by the appellant against Crl. Misc. M No. 23577 of 2008 -6- his convictions and sentences under Section 302 IPC are still pending. Petitioner is still undergoing the sentence. It is not the case of the petitioner that he has undergone the complete sentence in any one of the cases including remissions. Thus, at this stage, no cause of action has arisen to the petitioner to challenge the note made by the jail authorities in the custody certificate. As and when the custody certificate is produced by the petitioner for seeking any appropriate relief, the same would be considered accordingly . It is for the Appellate Court to pass appropriate direction as to whether the sentences in both the cases are to run consecutively or concurrently while deciding the appeals keeping in view the facts and circumstances of this case. Hence, this petition is dismissed being not maintainable. ( Sabina ) Judge February 20 , 2009 arya