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Judgment
Heard learned counsel for the petitioner, learned counsel representing the State as also the learned counsel representing the private respondent
no.5.
Petitioner has moved this Court for a writ in the nature of certiorari to quash the letter no.1917 dated 19.09.2017 issued by the Superintendent of
Divisional Jail, Khagaria in connection with Mansi (Chautham) P.S. Case No.192 of 1988 by which he has informed to the learned court below that
the calculation done by the Superintendent of Divisional Jail, Munger regarding the period spent by the petitioner in custody in connection with this
case is not correct and that the petitioner has not completed 10 years of custody and accordingly he cannot be released.
CASE OF THE PETITIONER
Mr. Ajay Kumar Thakur, learned counsel representing the petitioner submits that the petitioner in the present case was convicted by the learned
trial court in this case vide Session Trial No.184/89 vide judgment and order dated 24.12.2016, he was sentenced to undergo life imprisonment under
Section 302 I.P.C. and also to pay a fine, but the said judgment of the learned trial court was later on set aside by a Division Bench of this Court in Cr.
Appeal (DB) No.60 of 2017 and the Hon’ble High Court vide judgment and order dated 29.08.2017 was pleased to convert the conviction from
under Section 302 of the I.P.C. to Section 304 (Part II) of the I.P.C. and accordingly directed to suffer rigorous imprisonment for ten years and to pay
a fine of Rs.50,000/- and in default of payment of fine to suffer rigorous imprisonment for two years.
It is his submission that when a fresh warrant of conviction was issued in this case, the petitioner filed an application in the trial court claiming that
he had completed ten years in custody and therefore he should be released, a report was called for by the learned trial court from the Superintendent,
Divisional Jail, Munger. The Divisional Jail Superintendent, Munger vide memo no.2322 dated 10.09.2017 informed that the period spent by the
petitioner in custody in connection with this case is 9 months 9 days. Thereafter, the period spent by the petitioner in Khagaria Jail was also called for.
On the basis of the letter no.2297 dated 07.09.2017 sent by the Superintendent, Munger Jail, learned counsel claims that accused had spent in custody
ten years twenty-five days and therefore from the order dated 13.09.2017 passed by the learned trial court, it would appear that he was directed to be
released in the light of the judgment of the Hon’ble Court, but when the petitioner was not released, he had to again move the court and thereafter
the Superintendent, Divisional jail, Khagaria vide letter no.1917 dated 19.09.2017 informed that there was some defect in the earlier report and the
convict has not completed ten years and the period shown to have spent in Khagaria Jail for 7 months 4 days cannot be calculated in completing the
period of custody.
It is the claim of the petitioner that the Superintendent, Divisional Prison, Munger vide his letter as contained in Annexure-4 to the application, had
initially informed the learned court that the petitioner has remained in custody now for a total period of 9 months 9 days, thereafter when the learned
trial court directed to calculate the entire period of custody of the petitioner in the present case, the Superintendent, Divisional Jail, Munger had
submitted a report vide Annexure-5 to the writ application stating that the total period of custody of the petitioner is 10 years 25 days. On the same
date, vide letter no.2296 dated 07.09.2017 as contained in Annexure-6 to the writ application, the Superintendent of Divisional Jail, Munger informed
the Superintendent of Divisional Jail, Khagaria that in Munger Jail the total period spent by the petitioner in connection with this case was 9 months 9
days.
One of the submissions of the learned counsel representing the petitioner is that in the present Sessions Trial No.184/89 the petitioner was not being
produced from Khagaria Jail and for this purpose he had filed an application before the learned trial court that he is in Khagaria jail and, therefore,
production warrant be issued for producing him in the present case and only thereafter the learned trial court vide its order dated 10.06.2010 directed
the office to issue production warrant for producing the petitioner in the present case. It is further stated that the production warrant was received at
Khagaria jail on 30.06.2010, but still the petitioner was not produced before the learned trial court in Sessions Trial No.184/89. He was finally released
from custody on 04.02.2011 from Khagaria jail. The grievance of the petitioner is that when the production warrant was issued by the learned trial
court in connection with Sessions Trial No.184/89 and the same was received in Divisional jail, Khagaria on 30.06.2010 and from Khagaria petitioner
was released on 04.02.2011, it would not be just and proper on the part of the Superintendent, Khagaria Jail to opine that the period spent in Khagaria
jail i.e. 7 months 4 days (between 30.06.2010 to 04.02.2011) be treated as zero period. Learned counsel submits that the view taken by the
Superintendent of Khagaria jail vide letter no.1917 dated 19.09.2017 saying that the petitioner has not completed 10 years in custody is not a correct
view and, therefore, the petitioner has prayed for setting aside of the said communication.
With reference to the pleadings available on record, Mr. Thakur, learned counsel representing the petitioner has further submitted that the issue
which has arisen for consideration in the present case is based on the fact that the petitioner in the present case had remained in custody also in
connection with another Session Trial bearing no.10/86 and in the said Session Trial No.10/86 he was convicted on 27.02.1989 and was awarded life
sentence. He had completed sentence in the said case on 19.09.1997, but because he was required in another case also therefore, he had been
released on 06.10.1997. According to him in terms of sub-section (2) of Section 427 of the Code of Criminal Procedure the period spent by the
petitioner in jail in connection with Session Trial No.10/86 would also be liable to be calculated for the purpose of computing the total period of
sentence completed by the petitioner in connection with the present case. He has read out Section 427(2) Cr.P.C. and Section 428 Cr.P.C. in order to
submit that the petitioner would be entitled for the benefit of counting the period spent by him as a life prisoner even after his conviction in connection
with the Session Trial No.10/86. In course of argument, reliance has also been placed on the judgments of the Hon’ble Apex Court in the case of
Kartar Singh & Ors. V. State of Haryana reported in AIR 1982 SC 1439 (Para 8 & 9), Butan Sah Vs. The State of Bihar & Ors. reported in (2015) 4
PLJR HC 396 (Para 12 & 18), Raghbir Singh Vs. State of Haryana reported in (1984) 4 SCC 348, Government of Andhra Pradesh & Anr. Vs. Anne
Venkatesware & Ors. reported in (1977) 3 SCC 298, State of Maharashtra & Anr. Vs. Najakat Alia Mubarak Ali reported in (2001) 6 SCC 311 and
in the case of Mathuramalingam & Ors. Vs. State represented by Inspector of Police reported in (2016) 8 SCC 313.
STAND OF THE STATE
On the other hand, learned counsel representing the State and the private respondent no.5 have vehemently opposed the application. A counter
affidavit has been filed on behalf of the respondent no.3 sworn by Deputy Superintendent, District Jail, Khagaria. A stand has been taken therein that
the petitioner has not completed 10 years of sentence in connection with Session Trial No.184/89 and, therefore, he is not entitled for release in
connection with the present case. Placing reliance upon a Division Bench judgment of this Hon’ble Court in Cr.W.J.C. No.816 of 2017, as
contained in Annexure-B to the counter affidavit, learned counsel submits that in view of several judicial pronouncements on the subject it is now well
settled that the provision of set off contained in Section 428 of the Code of Criminal Procedure would apply only to the period which a convict might
have undergone during investigation, enquiry or trail of the case in which he comes to be subsequently convicted. It is their stand that the period spent
by the petitioner as an under-trial prisoner i.e. during investigation, enquiry or trial in connection with the Session Trial No.10/86 and the period spent
after awarding of sentence in the said trial would not be counted for the purpose of counting the sentence awarded to the petitioner in the present
case. It is submitted that the period of sentence which the petitioner spent as a life convict in Session Trial No.10/86 would not be available to him for
the purpose of set off against the period of imprisonment in the subsequent case i.e. Session Trial No.184/89.
STAND OF PRIVATE RESPONDENT NO.5
A counter affidavit has also been filed in the present case on behalf of the respondent no.5 who has intervened in the present case. She happens to
be the mother of the deceased and wife of the informant. The informant is said to have died and therefore she has moved this Court by filing
interlocutory application which was earlier allowed and she was impleaded as party respondent in the present case. In her counter affidavit, the
private respondent no.5 has reiterated the stand of the State authorities. It is submitted that the petitioner surrendered in connection with the present
case being Chautam (Mansi) P.S. Case No.192/88 on 17.12.1988, he was granted bail by this Court in Cr.Misc.No.8226 of 1992. He furnished the
bail bond on 18.05.1994 in the present case and thereafter a release order was also issued by the trial court on the same date, therefore it is submitted
that the petitioner remained in custody in connection with the present case for about five years five months and one day prior to his conviction in the
present case. In support of her submissions she has brought on record the order-sheet of learned trial court dated 18.05.1994 as Annexure-R/A to her
counter affidavit. It is her submission that the period spent by the petitioner after the order of release on 18.05.1994 and his further custody while
undergoing sentence as life convict due to his involvement in another case i.e. Session Trial No.10/86 cannot be counted for the purpose of completion
of sentence in the present case. Referring to the letter no.3583 dated 27.06.2009 as contained in Annexure-R/B to the counter affidavit, which was
issued by the Superintendent of Beur Jail, learned counsel representing the private respondent submits that the letter would reveal that the petitioner
was brought from Bhagalpur jail on 03.07.1997 because he had been convicted in Session Trial No.10/86 on 27.02.1989 and had completed sentence
on 19.09.1997 but was required in another case, therefore he was released on 6.10.1997. It is, thus, submitted that the petitioner was brought at Beur
Jail as convict of Session Trial No.10/86 and not in connection with the present case. Therefore, the period spent by him in Beur Jail cannot be
counted in connection with the present case. It has been reiterated that the petitioner had been ordered to be released in connection with the present
case on 18.05.1994.
It is submitted that in the present case cognizance was taken on 30.01.1989 and the judgment has been pronounced on 24.11.2016. In sum and
substance the submission of learned counsel for the private respondent is that the writ petitioner cannot take advantage of Section 427(2) Cr.P.C.
because he had not serve the sentence concurrently, rather he had been sentenced separately in two different trials which is evident from the records.
It is also submitted that if the petitioner was languishing in jail as a life convict and the learned trial court in this case had to issue production warrant to
produce him in connection with this case, the delay in producing him would not entitle him to count the said period of delay to complete the sentence
awarded to him in the present case.
CONSIDERATION
Having heard learned counsel for the petitioner, learned counsel representing the State as also the learned counsel representing the private
respondent no.5 and upon perusal of the records this Court would first discuss the provisions contained under Section 427(2) and Section 428 Cr.P.C.
which read as under:-
“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 that where a person who has been sentenced to imprison- ment by an order under section 122 in default of furnishing security is, whilst
undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence
immediately.
(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 con- currently with such previous sentence.
Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on conviction,
been sentenced to imprisonment for a term , not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him
during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment
imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder,
any, of the term of imprisonment imposed on him.â€
According to sub-section (2) of Section 427 Cr.P.C. 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 con- currently with such previous
sentence.
Mr. Thakur, learned counsel representing the petitioner has heavily relied upon sub-section (2) of Section 427 Cr.P.C. to contend that in present
case even though the petitioner was undergoing a sentence of imprisonment for life the period spent by him as a prisoner during the period he was in
undergoing life imprisonment in connection with Session Trial No.10/86 would also be available for counting the sentence awarded to him on
24.11.2016 in connection with Session Trial No.184/89. The judgments relied upon by Mr. Thakur have been taken note of hereinabove. In the case of
Government of Andhra Pradesh & Anr. Vs. Anne Venkatesware & Ors reported in (1977) 3 SCC 298 in paragraph 5 and 6 on which reliance has
been placed by Mr. Thakur reads as under:-
“5. We do not consider the view taken by the High Court on this point as correct. Section 428 of the Code of Criminal Procedure. 1973 is in these
terms: 428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.Where an accused person has, on
conviction, been sentenced to imprisonment for a term, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the
same case and before the date of such conviction, Shall be set off against the term of imprisonment imposed on him on such conviction, and the
liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on
him.
Section 428 provides that the period of detention of an accused as an undertrial prisoner shall be set off against the term of imprisonment imposed on
him on conviction. The section only provides for a ""set off"", it does not equate an “undertrial detention or remand detention with imprisonment on
convictionâ€. The provision as to set off expresses a legislative policy, this does not mean that it does away with the difference in the two kinds of
detention and puts them on the same footing for all purposes. The basis of the High Court's decision does not, therefore, seem to be right.
Apart from that, the Prisons Act does not confer any right upon the prisoner to claim remission. It was pointed out in G.V. Godse v. State of
Maharashtra1 that “...... the Prisons Act does not confer on any authority a power to commute or remit sentences, it provides only for the
regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to
make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the
Act."" It was explained that the rules under the Prisons Act do not substitute a lesser sentence for a sentence awarded by the court. The rules enable a
prisoner to earn remissions but, as held in G.V. Godse's case, the question of remission is exclusively within the province of the appropriate
Government. If the Government decides to remit the punishment to which a person has been sentenced, the remission may be worked out according
.to the rules framed under the Prisons Act. This being the position, appeals 418 and 419 of 1976 must succeed.â€
Paragraph 8 and 9 of the judgment rendered in the case of Kartar Singh & Ors. V. State of Haryana reported in AIR 1982 SC 1439 reads as
under:- 1.(1961)3 SCR 440, 446: AIR 1961 SC 600: (1961) 1 Cri LJ 736
 “8. The last submission has been that if convicts other than life-convicts are entitled to the benefit of the set off under Sec.428, there is no
reason why life convicts should be denied the advantage of this beneficial provision and in this behalf it was pointed out that such an argument has
found favour with the Gujarat High Court in Kalidas Vanmalibhai’s case (1980-21 Guj LR 7) (supra). In our view the question is not whether the
beneficent provision should be extended to life-convicts on a priori reasoning or equitable consideration but whether on true construction the section
comprises life convicts within its purview and on construction it is not possible to hold that they do. Moreover, if the objects and reasons for
introducing Sec.428 anew in the Code, as set out by the Joint Committee in its Report are taken into account, it will appear clear that cases of life
convicts were never intended to be covered by the provision. The Joint Committee has stated the objects and reasons for introducing this provision in
the Code thus: “The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as
undertrial prisoners and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in Jail as undertrial prisoner.
Indeed, there may even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention
undergone as undertrial prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone.
But this is not always the case so that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of
the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails
of today are under-trial prisoners. The new clause seeks to remedy this unsatisfactory state of affairs.â€
It is obvious that the mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life.
Having regard to the above discussion, it is clear that the benefit of the set off contemplated by Sec.428 Cr.P.C. would not be available to life
convicts. In our view, the decision of the Gujarat High Court in the case of Kalidas Vanmalibhai (1980-21 Guj LR 7) is erroneous and the contrary
view taken by Kerala High Court in Kanthalot Karunan v. State of Kerala, 1975 Ker LT 147 by Bombay High Court in Rajahusein Gulamhusein
Lakhani v. State of Maharashtra, 1976 Cri LJ 1294, Rafiq Abdul Rehman v. State of Maharashtra, 1978 Cri LJ 214 (Bom) and by Rajasthan High
Court in Bhimsen v. State of Rajasthan, 1977 Cri LJ 696 is correct. In this view of the matter, the impugned order dated 2nd February, 1982 passed by
the Respondent-State, being in conformity with Sec.428, Cr.P.C., is perfectly legal and valid.â€
Paragraph 10 to 14 and 21 of the judgment in the case of State of Maharashtra & Anr. Vs. Najakat Alia Mubarak Ali reported in (2001) 6 SCC
311 on which reliance has been placed by Mr. Thakur reads as under:-
“10.In Raghbir Singh v. State of Haryana1 learned Judges considered a case in which an accused was convicted and sentenced to imprisonment
for 7 years on 1.2.1980 as per the judgment rendered by a Sessions Judge, Karnal. That accused was in judicial custody from 11.1.1980 in connection
with another case which was pending before a Metropolitan Magistrate, Delhi. That second case also ended in conviction and the Metropolitan
Magistrate sentenced him to rigorous imprisonment for one year on 16.2.1981. That accused claimed set off from 11.1.1980 till the dates of conviction
in each cases. In that case the State conceded the claim of the accused in respect of the period between 11.1.1980 to 1.2.1980. But the State
contended that the accused could not get set off from 1.2.1980 till 16.2.1981 for the second case. The said contention was based on a departmental
instructions issued by a State Government on 29.11.1975 to the effect that the period of detention undergone by a convict in execution of a sentence in
one case should not be set off against the term of imprisonment imposed on him in another case. This Court upheld the said contention and the two
Judge Bench made the following observation (SCC p.351, para 6)
“In such a case the period of detention is really a part of the period of imprisonment which he is undergoing having been sentenced earlier for
another offence. It is not the period of detention undergone by him during the investigation, inquiry or trial of the same case in which he is later on
convicted and sentenced to undergo imprisonment. He cannot claim a double benefit under Section 428 of the Code i.e. the same period being counted
as part of the period of imprisonment imposed for committing the former offence and also being set off against the period of imprisonment imposed for
committing the latter offence as wellâ€.
As the said view is now sought to be reconsidered we shall examine the position by reading Section 428 of the Code once again. The Section is
extracted below:
“428. Period of detention undergone by the accused to be set off against the sentence of imprisonment.- Where an accused person has, on
conviction, been sentenced to imprisonment for a term not being imprisonment in default of payment of fine, the period of detention, if any, undergone
by him during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of
imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the
remainder, if any, of the term of imprisonment imposed on him.â€
The placement of that section just below Section 427 of the Code tempts us to have a peep into the preceding section, which deals with instances
wherein one person is sentenced in a case when he has already been undergoing the sentence in another case. The first sub-section of Section 427
says that the sentence in the second conviction shall commence at the expiration of the imprisonment to which the accused has been previously
sentenced, “unless the court directs that the subsequent sentence shall run concurrently with such previous sentenceâ€. The second sub-section to
Section 427 of the Code says that 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.
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 life but only a lessor term the convergence will
take place and the 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 subsection. 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.
The purpose of Section 428 of the Code is also for advancing amelioration to the prisoner. We may point out that the section does not contain any
indication that if the prisoner was in jail as an undertrial prisoner in a second case the benefit envisaged in the section would be denied to him in
respect of the second case. However, learned counsel for the appellant contended that the words of the same case in the section would afford
sufficient indication that the benefit is intended to cover only for one case and not more than that. It must be remembered that the ideology enshrined
in Section 428 was introduced for the first time only in the Code of Criminal Procedure, 1973. For understanding the contours of the legislative
measure involved in that section, it is advantageous to have a look at the Objects and Reasons for bringing the above legislative provision. We
therefore extract the same here:
“The Committee has noted the distressing fact that in many cases accused persons are kept in prison for very long period as under-trial prisoners
and in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in jail as under-trial prisoner. Indeed, there may
even be cases where such a person is acquitted. No doubt, sometimes courts do take into account the period of detention undergone as under-trial
prisoner when passing sentence and occasionally the sentence of imprisonment is restricted to the period already undergone. But this is not always the
case so that in many cases the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the
punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are under-trial
prisoners. The new clause seeks to remedy this unsatisfactory state of affairs. The new clause provides for the setting off of the period of detention
as an under-trial prisoner against the sentence of imprisonment imposed on him. The Committee trusts that the provision contained in the new clause
would go a long way to mitigate the evil. (emphasis supplied)
21.We have no reason to think that the High Courts mentioned above have gone wrong in taking the view that Section 428 of the Code permits the
accused to have the period undergone by him in jail as an under-trial prisoner set off against the period of sentence imposed on him irrespective of
whether he was in jail in connection with the same case during that period. We therefore, respectfully dissent from the view expressed by the two
Judge Bench of this Court in Raghbir Singh v. State of Haryana1.
Mr. Thakur has also placed reliance on a recent judgment of the Hon’ble Apex Court rendered by the Constitution Bench in the case of
Mathuramalingam & Ors. Vs. State represented by Inspector of Police reported in (2016) 8 SCC 313. Paragraph 19 and 33 of the said judgment
reads as under:-
“19. A somewhat similar question fell for consideration before a three- Judge Bench of this Court in Ranjit Singh v. UT of Chandigarh20, (1991) 4
SCC 304. The prisoner was in that case convicted for murder and sentenced to undergo life imprisonment. He was released on parole while
undergoing the life sentence when he committed a second offence of murder for which also he was convicted and sentenced to undergo imprisonment
for life. In an appeal filed against the second conviction and sentence, this Court by an order dated 30th September, 1983 directed that the
imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. The Court directed that in the event of
remission or commutation of the earlier sentence awarded to the prisoner, the second imprisonment for life awarded for the second murder committed
by him shall commence. Aggrieved by the said direction which made the second life sentence awarded to him consecutive, the prisoner filed a writ
petition under Article 32 of the Constitution primarily on the ground that this Court’s order dated 30th September, 1983 was contrary to Section
427 (2) of the CrPC., according to which any person already undergoing sentence of imprisonment for life if sentenced to undergo imprisonment for
life, the subsequent sentence so awarded to him shall run concurrently with such
(1991) 4 SCC 304:1991 SCC (Cri) 965 previous sentence.
We are not unmindful of the fact that this Court has in several other cases directed sentences of imprisonment for life to run consecutively having
regard to the gruesome and brutal nature of the offence committed by the prisoner. For instance, this Court has in Ravindra Trimbak Chouthmal v.
State of Maharashtra25, while commuting death sentence penalty to one of imprisonment for life directed that the sentence of seven years rigorous
imprisonment under Section 207 IPC shall start running after life imprisonment has run its due course. So also in Ronny v. State of Maharashtra26 this
Court has while altering the death sentence to that of imprisonment for life directed that while the sentence for all other offences shall run
concurrently, the sentence under Section 376 (2)(g) shall run consecutively after running of sentences for other offences. To the extent these
decisions may be understood to hold that life sentence can also run consecutively do not lay down the correct law and shall stand overruled.â€
The Division Bench judgment of this Hon’ble Court in the case of Butan Sah Vs. The State of Bihar & Ors. reported in (2015) 4 PLJR HC
396 has also been relied upon specifically with reference to paragraph 12 and 18 of the said judgment which I would quote hereunder:-
“12.What, in substance, Section 427 of the Code of Criminal Procedure conveys is that when a person, already undergoing a sentence of
imprisonment, is further sentenced, on subsequent conviction, to imprisonment for a term or to imprisonment for life, such imprisonment for a term or
such imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced unless the Court directs
that subsequent sentence shall run ‘concurrently’ with his previous sentence. When, however, such a person is already
(1996) 4 SCC 148:1996 SCC (Cri) 608
(1998) 3 SCC 625: 1998 SCC (Cri) 859
undergoing a sentence of imprisonment for life, then, his further sentence of imprisonment for a term or imprisonment for life, which may be passed
against him (following his subsequent conviction), shall run ‘concurrently’ with his previous sentence of imprisonment for life irrespective of the
fact whether the Court directs or not that subsequent sentence of imprisonment for a term or imprisonment for life would run ‘concurrently’.
A combined reading of the provisions embodied in Sections 31(1), 427 and 428 of the Code of Criminal Procedure and Section 64 of the Indian
Penal Code gives out a completed scheme of calculating the period of imprisonment passed as sentence, the ordinary rule being that the sentences
awarded shall run consecutively unless the Court directs that the sentences passed, in more than one case, shall run concurrently. When the sentences
of imprisonment are passed consequent upon an offender’s conviction in more than one offence at one trial, it is Section 31 of the Code of
Criminal Procedure, which applies, and when the sentences of imprisonment are passed consequent upon his conviction in different trials, it is Section
427 of the Code of Criminal Procedure, which would apply. Subsection (2) of Section 427 of the Code of Criminal Procedure makes an exception, the
exception being that when a person, already undergoing a sentence of imprisonment for life, is sentenced, on subsequent conviction, to imprisonment
for a term or to imprisonment for life, his subsequent sentence shall run ‘concurrently’ with his previous sentence of imprisonment for life, even
if the Court does not direct that the subsequence sentence of imprisonment would run concurrently and not consecutively with his previous sentence
of imprisonment for life.â€
On a cumulative reading of aforesaid judgments of the Hon’ble Apex Court, I find that Section 427(2) and Section 428 Cr.P.C. have come up
for consideration before the Hon’ble Apex Court on several occasions. The Constitution Bench in the case of Mathuramalingam (supra) has
reviewed almost all the previous case laws on the subject and concluded that while multiple sentences for imprisonment for life can be awarded for
multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run concurrently. It has
been held that such sentences would, however, be superimposed over each other so that any remission or commutation granted by the competent
authority in one does not ipso facto result in remission of the sentence awarded to the prisoner for the other.
In the present case, the question which has fallen for consideration is as to whether or not for purpose of this case the petitioner would be entitled
to count period after 18.05.1994 spent by him as a life convict while he was undergoing the life sentence in connection with Session Trial No.10/86.
At this stage, before reaching to a conclusion, I would also take note of the Division Bench judgment of this Hon’ble Court in the case of
Harishchandra Prasad Vs. The State of Bihar decided on 17.08.2017 in Criminal Writ Jurisdiction Case No.816 of 2017 reported in 2017(4) PLJR
836, a copy of which has been annexed as Annexure-B to the counter affidavit filed on behalf of the State. In the said case, the petitioner had
approached this Court for a direction to the respondent authorities for premature release of his son in terms of sentencing policy of the State
Government. The son of the petitioner was convicted in Sessions Trial No.545/2001 arising out of Silao (Chabilapur) P.S. Case No.88 of 2001 and
was sentenced to undergo life imprisonment vide judgment and order dated 26.02.2005 and 4.03.2005 respectively. Thereafter, he was also convicted
in Sessions Trial No.499/2001 and was sentenced to undergo life imprisonment vide judgment and order dated 16.04.2007 and 23.04.2007 respectively.
It was urged on behalf of the petitioner that his son had completed 14 years of actual conviction and more than 20 years with remission in both the
cases and hence he should be directed to be released prematurely as per the Bihar State Sentence Remission Policy. Case of the petitioner was
contested by the State authorities and it was submitted that so far as conviction in Sessions Trial No.545/2001 is concerned, son of the petitioner had
completed 14 years of actual imprisonment and 20 years of imprisonment with remission and, thus, he was entitled for his premature released but only
after consideration of the opinion of the Presiding Officer as per the requirement under Section 432 of the Code of Criminal Procedure which was still
awaited. So far as the second case is concerned, the stand of the State authorities was that the petitioner’s son had completed merely 13 years 5
months and 22 days of actual imprisonment as on 4.07.2017 and 17 years 2 months and 2 days of imprisonment along with earned remission and, thus,
the aforesaid period is much less than the mandatory actual custody of 14 years without remission and 20 years with remission. So his case so far as
the Sessions Trial No.499/2001 is concerned, cannot be considered. The Hon’ble Division Bench was called upon to consider the various
judgments of the Hon’ble Apex Court such as judgment rendered in the case of Najakat Alia Mubarak Ali (supra) and Atul Manubhai Parekh Vs.
Central Bureau of Investigation [2010 AIR SCW 399]. Attempt was made to impress upon this Court that once the son of the petitioner was
convicted in the earlier case he cannot be considered as under-trial prisoner in any case as he started serving his sentence as a convict in the
concerned case and, thus, that period cannot be treated for counting the set off in the subsequent case. The Hon’ble Division Bench in the case of
Harischandra Prasad (supra) accepted the submissions of the State and referring to the earlier Division Bench judgment of this Court in the case of
Butan Sah (supra) held that period between conviction in one case and conviction in another sentencing for life cannot be treated as under-trial
prisoner in the second case for the purpose of set off and as such the petitioner’s son would have to wait for his premature release in the second
case in which he has been convicted for life. Paragraph 39, 43 and 44 of the judgment rendered in the case of Butan Sah (supra) has been taken note
of by the Hon’ble Division Bench and do the same hereunder:-
“39. Clearly, therefore, the period, which a person spent, while serving a sentence of imprisonment as a convict in one case, would not be taken
into account, and be treated, as a remand period or as a period undergone by him as an under-trial prisoner in the other case, wherein he comes to be
subsequently convicted.
xxxxx xxxxxx xxxxxx
As far as the provision of set off, embodied in Section 428 Code of Criminal Procedure, are concerned, these provisions apply only to the period,
which a convict might have undergone during investigation, enquiry or trial of the case in which he comes to be subsequently convicted. Thus, the
period, spent by a person as an under-trial prisoner, i.e., during investigation, enquiry or trial in one case, would not be available to him for set off
against the sentence of imprisonment, which may be subsequently passed against him in another case.
More-over, the period of sentence, which a person spends as a convict, would not be available to him, for the purpose of set off against the period
of imprisonment to which he may be sentenced following his subsequent conviction in a different case. The period of imprisonment, which a person
spends as an under-trial prisoner is entirely different from the period, which a person suffer, while serving out sentence of imprisonment as a
convict.â€
Upon considering the judicial pronouncements on the subject and going through the pleadings available on the record, I find that the averments
made by the private respondent in the counter affidavit that the petitioner was ordered to be released on bail and he had submitted bail bond on
18.05.1994 in connection with the present case is not in dispute. The submission of Mr. Thakur is that the period being spent by petitioner as a life
convict in connection with Sessions Trial No.10/86 be allowed to be counted or should be counted in connection with the subsequent sentence
awarded to the petitioner in present case because the petitioner as an under-trial prisoner remained in custody in the present case as the release order
was never communicated to the authorities, in the opinion of this Court, cannot be accepted. The petitioner was convicted in connection with Sessions
Trial No.10/86 much before he furnished the bail bond on 18.05.1994 in connection with the present case and therefore he being a life convict
undergoing the sentence of life imprisonment could not have been released. The above discussed judgments of the Hon’ble Apex Court as well as
our own Division Bench have made it crystal clear that the period spent by the petitioner as a life convict in connection with one case cannot be
counted as a period spent in the capacity of an under-trial prisoner in connection with another case. Paragraph 43 and 44 of the judgment of the
Hon’ble Division Bench in the case of Butan Sah (supra) make it clear that the period of sentence which a person spent as a life convict would
not be available to him for the purpose of set off against the period of imprisonment to which he may be sentenced following his subsequent conviction
in a different case. The Division Bench of this Court in the case of Harishchandra Prasad (supra) has also dealt with that aspect of the matter.
In result, I do not find any merit in the writ application. It is, accordingly, dismissed.