Criminal Misc. No. M-12343 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Criminal Misc. No. M-12343 of 2009 Date of Decision:11.11.2009 Jaipal .....Petitioner Vs. State of Haryana and others .....Respondents CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Vijay K. Jindal, Advocate for the petitioner. Mr. Amit Kaushik, Assistant Advocate General, Haryana. **** HARBANS LAL, J. This petition has been moved by Jaipal under Section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India seeking his pre-mature release and for further holding that he has been illegally deprived of the benefits of pre-mature release and his further detention has become violative of Articles 14, 19 and 21 of the Constitution of India and that he is entitled to to be released forthwith on usual terms and conditions. The facts in brief are that the petitioner along with his co- accused Vajinder Singh was convicted and sentenced to undergo imprisonment for life by the Court of learned Additional Sessions Judge, Sonepat in case FIR No.162 dated 27.3.1987 under Section 302 read with Section 34 of IPC, Police Station City Sonepat vide judgment dated 25.2.1989 (Annexure P.1). While he was undergoing such imprisonment in Criminal Misc. No. M-12343 of 2009 -2- District Jail, Karnal, he failed to surrender in jail after having exhausted the period of parole and furlough. He was tried under Section 8 read with Section 9 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (for brevity, `the Act') and awarded various punishments on account of late surrender in jail. Vide judgment Annexure P.2/A, he was convicted and sentenced by the Court of learned Chief Judicial Magistrate to undergo rigorous imprisonment for two months and to pay a fine of Rs.300/- under Section 9 of the Act or in default of the same, to further undergo rigorous imprisonment for seven days in case FIR No.580 dated 11.10.1998. Vide judgment Annexure P.2/B, he was convicted and sentenced by the Court of learned Chief Judicial Magistrate, Sonepat to undergo rigorous imprisonment for two months and to pay a fine of Rs.300/- under the said Sections or in default of payment of fine, to further undergo rigorous imprisonment for seven days in case FIR No.318 dated 4.8.1999. Vide judgment Annexure P.2/C, he was convicted and sentenced by the said Court to undergo imprisonment for one month and to pay a fine of Rs.100/- under the afore-mentioned Sections and in default of payment of the fine, to undergo simple imprisonment for five days. Vide judgment Annexure P.2/D, he was convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.100/- under the above-mentioned Sections and in default of payment of fine, to undergo simple imprisonment for five days in case FIR No.297 dated 9.10.2002, Police Station City Sonepat. On appeal, the sentence was reduced to four months though the fine was kept intact vide judgment Annexure P.2/D1 by the Court of learned Additional Sessions Judge. Vide judgment Annexure P.2/E, he was Criminal Misc. No. M-12343 of 2009 -3- convicted and sentenced to undergo imprisonment for six months and to pay a fine of Rs.100/- under Section 9 of the Act or in default of payment of fine, to further undergo simple imprisonment for five days in case FIR No.91 dated 12.4.2004 under Section 8 read with Section 9 of the Act, Police Station City Sonepat. On appeal, the sentence was reduced to four months vide judgment Annexure P.2/E1 by the Court of learned Additional Sessions Judge. That the sentences awarded to the petitioner vide judgments referred to above have to run concurrently with imprisonment for life awarded vide judgment Annexure P.1. In reply filed by the respondents, it has been averred that according to the latest policy framed by the Government of Haryana and issued vide notification Annexure R.1, the petitioner has not completed 14 years of actual sentence and 20 years of total sentence including remissions. There is no policy/ circular issued under State Policy by which the cases of pre-mature release can be considered which were relevant at the time of conviction in view of State of Haryana v. Mahender Singh, 2007(4) Recent Criminal Reports (Criminal) 909. The petitioner has undergone total sentence of 14 years, 10 months and 23 days. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner strenuously urged that Section 9 of the Act has been interpreted by this Court vis-a-vis Section 427 (2) of the Code of Criminal Procedure in case Ram Chander v. The Inspector General of Prison, Punjab, 1995(3) Recent Criminal Reports (Criminal) 228. In view of Jang Singh v. State of Punjab, 2008(1) Criminal Misc. No. M-12343 of 2009 -4- Recent Criminal Reports (Criminal) 323 (Full Bench), a person who is undergoing a sentence of imprisonment for life, if he is sentenced on a subsequent conviction, then such subsequent sentence shall run concurrently with the previous sentence and no separate order is required for concurrent running of sentence. The recent judgment in the case of Naresh v. State of Haryana, Criminal Misc. No. M-31814 of 2008 decided on 31.3.2009 based on Ram Chander's case (supra) fully covers the case of the petitioner. The petitioner has already completed the terms of sentences awarded vide judgments annexed as Annexures P.2/A, P.2/B, P.2/C, P.2/D, P.2/D1, P.2/E1. He cannot be made to undergo a sentence now on account of the sentences awarded vide afore-mentioned judgments. For the reasons best known to the jail authorities, they are not prepared to read the provisions of Section 427(2) of the Code of Criminal Procedure. They are of the view that after the petitioner is released pre-maturely in FIR No.162 dated 27.3.1987 under Section 302/34 of IPC, Police Station City Sonepat, thereafter, he will have to undergo the sentences awarded vide judgments referred to above. The action of the jail authorities in not treating the sentences awarded vide judgments Annexures P.2/A, P.2/B, P.2/C, P.2/D, P.2/D1, P.2/E1 to run concurrently with life imprisonment awarded vide judgment Annexure P.1 is highly illegal, arbitrary, unconstitutional, violative of Articles 14, 19 and 21 of the Constitution of India. To tide over these submissions, the learned State Counsel canvassed at the bar that the explanation appended to Section 9 of the Act clearly debars to make the sentences awarded vide judgments Annexures Criminal Misc. No. M-12343 of 2009 -5- P.2/A, P.2/B, P.2/C, P.2/D, P.2/D1, P.2/E1 run concurrently with life imprisonment inflicted vide Annexure P.1. I have given a deep and thoughtful consideration to the rival contentions. In re: Ram Chander (supra), it has been observed by the Single Bench of this Court that “Explanation given below Section 9 of the Act - “the punishment in this Section is in addition to the punishment to the prisoner for the offence for which he was convicted” is not in conflict with the mandate of Section 427(2) of the Code of Criminal Procedure. As per Section 427(2) of the Code of Criminal Procedure, in case of life prisoner, any subsequent sentence is to run concurrently with the earlier sentence. The petition is accordingly partly accepted. The sentence of six months awarded under Section 8 read with Section 9 of the Act will run concurrently.” In case of Jang Singh (supra), it has been held that “The consensus of the judicial opinion, as may emerge from different judgments passed by various High Courts and the Hon'ble Supreme Court, seems to be that normal rule, as per Section 427 Cr.P.C., is that, a person who is undergoing a sentence of imprisonment and is sentenced on a subsequent conviction to an imprisonment or an imprisonment for life, then such imprisonment or imprisonment of life shall commence after the expiration of the imprisonment, to which he has been previously sentenced. This, however, would not be so if the Court directs that the subsequent sentence shall run concurrently with the previous sentence.” In case of Naresh (supra), the Single Bench of this Court by referring to Ram Chander's Case (supra) and Jang Singh's case (supra) held that “The position, therefore, is that sentence in addition to the sentence already imposed, Criminal Misc. No. M-12343 of 2009 -6- would be in respect of the sentence which is for a term other than life imprisonment. In other words, the sentence is for an imprisonment other than life imprisonment. The running of sentence in addition to the sentence of imprisonment would be inapplicable where a prisoner has been sentenced to life imprisonment.” Section 9 of the Act reads as under:- “9. Penalty for failure to surrender. - (1) Any prisoner who is liable to be arrested under sub-section (2) of section 8, shall be punishable with imprisonment of either description which may extend to three years and with fine. (2) An offence punishable under sub-section (1) shall be deemed to be cognizable and non-bailable. Explanation. - The punishment in this section is in addition to the punishment awarded to the prisoner for the offence for which he was convicted.” Axiomatically, the legislature has couched the language of above referred explanation in the widest possible terms that the punishment in this Section is in addition to the punishment awarded to the prisoner for the offence in which he is convicted. If the sentence in addition to the sentence already imposed was to be in respect of the sentence which is for a term other than life imprisonment, in that eventuality, the legislature in its wisdom would have said so in the explanation attached to Section 9 ibid. The words or expression or phrase “in addition to” employed by the legislature leave no scope for doubt that the sentences awarded or to be awarded under Section 9 ibid shall be in addition to the sentence already Criminal Misc. No. M-12343 of 2009 -7- being undergone by the convict. To add further to it, the Haryana Good Conduct Prisoners Temporary Release Act, 1988 is a special enactment whereas needless to say the Code of Criminal Procedure enshrines general procedural law. It is a celebrated dictum of law that the provisions of Special Act always override the general law. Thus, the provisions of Section 427(2) of the Code of Criminal Procedure cannot be given any precedence over the explanation added to Section 9 ibid. At the cost of repetition, it deserves to be pointed out here that had it been the intention of the legislature that the sentence prescribed under Section 9 ibid can be made to run concurrently in the case of a lifer already undergoing life imprisonment, then in its all wisdom, the legislature would have provided such exception in this explanation. There being no such exception with all humility and great respect to their Lordships, in the face of the above discussion, it is very difficult to follow their verdicts rendered in re: Ram Chander's case (supra) as well as Naresh (supra). In re: Jang Singh (supra), the interpretation of the explanation attached to Section 9 ibid was not a subject of consideration before their Lordships. In re: M.R. Kudva v. State of Andhra Pradesh, 2007(1) Recent Criminal Reports (Criminal) 868, the Supreme Court has ruled as under:- “10. However, in this case the provision of Section 427 of the Code was not invoked in the original cases or in the appeals. A separate application was filed before the High Court after the special leave petitions were dismissed. Such an application, in our opinion, was not maintainable. The High Court could not have exercised its inherent jurisdiction in a case of this nature Criminal Misc. No. M-12343 of 2009 -8- as it had not exercised such jurisdiction while passing the judgments in appeal. Section 482 of the Code was, therefore, not an appropriate remedy having regard to the fact that neither the trial Judge, nor the High Court while passing the judgments of conviction and sentence indicated that the sentences passed against the appellant in both the cases shall run concurrently or Section 427 would be attracted. The said provision, therefore, could not be applied in a separate and independent proceeding by the High Court. The appeal being devoid of any merit is dismissed.” In re: Jang Singh (supra), also it has been laid down by the Full Bench of this Court that “Direction to make the sentences to run concurrently can be exercised by the trial Court or by the appellate Court or a revisional Court at the time of exercising appellate or revisional jurisdiction as well. It may not be open for a person to seek such direction for making the sentences to run concurrently by moving an application under Sections 482 and 427 of Cr.P.C.” Thus, the matter can be viewed from another angle. On viewing the matter in the light of afore-extracted observations from M.R. Kudva's case (supra) as well as Jang Singh's case (supra), this petition is not maintainable as the prayer for the relief sought in it could have been made before the trial Court when Annexures P.2/A, P.2/B, P.2/C, P.2/D, P.2/D1, P.2/E1 were delivered or before the Appellate Court, when Annexure P.2/D1 and P.2/E1 were passed. Thus, if the matter is viewed in this perspective, this petition loses its maintainability. Palpably, the petitioner repeated the offence under Section Criminal Misc. No. M-12343 of 2009 -9- 8 read with Section 9 over and over again. To conclude finally, the sentences imposed vide judgments Annexures P.2/A, P.2/B, P.2/C, P.2/D, P.2/D1 and P.2/E1 cannot be made to run concurrently with the life imprisonment awarded vide judgment Annexure P.1 dated 25.2.1989 passed by the Court of learned Additional Sessions Judge, Sonepat. As a sequel of the above discussion, this petition stands dismissed. November 11, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No