Uttam Singh vs The State

Uttam Singh has moved through jail for a direction that the two sentences of transportation for life passed on him for two different offences -- one u/s 302 and the other u/s 396, Indian Penal Code -- should be ordered to run concurrently.

Uttam Singh was convicted and sentenced to transportation for life u/s 302 read with Section 149, Indian Penal Code. He was also convicted u/s 307 read with Sections 149 and 148, Indian Penal Code, but no separate sentence was passed on this count. Uttam Singh's appeal against this conviction was dismissed by this Court on the 17th of October, 1955. (Reference may be made to Criminal Appeal No. 392 of 1954 Jaswant Singh v. State). It may be mentioned that the decision of the learned Sessions Judge in that case was dated the 25th March 1954.

Uttam Singh was also tried u/s 396, Indian Penal Code, for having committed dacoity on the night between the 16th and the 17th of June, 1952. He was convicted and sentenced for transportation for life for this offence by the Additional Sessions Judge on the 19th of November, 1954. An appeal against his conviction was dismissed by this Court on the 5th of April, 1956. (In this connection reference may be made to Uttam Singh v. State, Criminal Appeal No. 35 of 1955 decided by Falshaw and Kapur JJ.) It is curious that neither at the stage of trial nor at the time of the appeal in the High Court it came to notice that Uttam Singh in both the cases before the Sessions Judge and in both the appeals in this Court was the same person. It is not disputed that Uttam Singh is the same person who has been Sentenced to undergo transportation for life on two different dates, namely, the 25th of March, 1954 and the 19th of November, law, for two different offences. At the time when the sentence of transportation for life u/s 393, Indian Penal Code, was upheld by this Court the provisions ot Section 397, Criminal Procedure Code, had been amended. Section 397, Criminal Procedure Code, as it stood before the amendment is in these terms:

"397. When a person already undergoing a sentence of imprisonment or transportation, is sentenced to imprisonment, or transportation, such imprisonment or transportation shall commence at the expiration of the imprisonment or transportation to which he has been previously sentenced unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that if he is undergoing a sentence of imprisonment, and the sentence on such subsequent conviction is one of transportation, the Court may in in its discretion, direct that the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced:

Provided further, that where a person who has been sentenced to imprisonment by an order u/s 123 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,"

and after the amendment by Act XXVI of 1955 it is In these terms:

"397. 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 imprisonment by an order u/s 123 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 or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence."

It would be apparent from the provisions of Sub-section (2) of Section 397, Code of Criminal Procedure, that where a person is already undergoing the sentence of imprisonment for life and is again sentenced to imprisonment for life, the subsequent sentence shall run concurrently with the previous sentence. It is in view of this provision that the present petition has been moved for a direction that the second sentence should run concurrently with the first sentence.

The relevant part of Section 116 of the Code or Criminal Procedure (Amendment) Act (26 of 1955) is in the these terms:--

"116. Savings -- Notwithstanding that all or any of the provisions of this Act have come into force in any State,--

(a) the provisions of Section 14 or Section 30 or Section 145 or Section 146 of the principal Act as amended by this Act shall not apply to, or affect, any trial or other proceeding which, on the date of such commencement, is pending before any Magistrate, and every such trial or other proceeding shall, be continued and disposed of as if this Act had not been passed,

(b) the provisions of Section 406 or Section 408 or Section 409 of the principal Act as amended by this Act shall not apply to, or affect any appeal x x x x x x x;

(c) the provisions of Clause (w) of Section 4 or Section 207-A or Section 251-A or Section 260 of the principal Act, as amended by this Act shall not apply to or affect, any inquiry or trial before a Magistrate x x x x x x x

(d) the provisions of Chapter XXIII of the principal Act as amended by this Act shall not apply to, or affect any trial before a Court of Session x x x x x x x; but save, as aforesaid, the provisions of this Act and the amendments made thereby shall apply to all proceedings instituted after the commencement of this Act and also to all proceedings pending in any Criminal Court on the date of such commencement."

This provision leaves no manner of doubt that any criminal proceedings pending at the time when the amending Act came into force are to be governed by the same. At the time when the amending law came into force, Uttam Singh's appeal against his conviction u/s 396, Indian Penal Code, was pending and therefore the question of sentence had to be considered in view of the amended Section 397 of the Code of Criminal Procedure, and it was incumbent while upholding his sentence u/s 393, Indian Penal Code, to direct that the same should run concurrently with the sentence awarded to him u/s 302, Indian Penal Code, in the previous case. It seems that the amended provision was not brought to the notice of the learned Judges who decided the appeal filed by Uttam Singh. In these circumstances we direct that the sentence for life imprisonment passed u/s 396, Indian Penal Code, is to run concurrently with me sentence; passed under the first offence u/s 302, Indian Penal Code. Necessary direction to issue to the jail authorities.