SHAIK ABDUL AZEEZ versus STATE OF KARNATAKA

393

SHAIK ABDUL AZEEZ v. STATE OF KARNATAKA

March 28, 1977

[Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.]

Pencd Code (Act 45 of 1860), 1860, section 303-Death Sentence for murder by life convici-Whether a p·erson sent,enced to imprisonment for life and later released by the Government by remission of sentence uls. 401 of the Cr. P.C., .1898 (1973 Code, s. 432) continues to "being under sentence of ifnprisonnient jor life" for the purpose of s. 303 I. P. C.-Cri1ninal Procedure Code, 1898, sec. 401 (1973 Code, section 432)-Scope of.

A

B

Section 303 I.P.C. lays down that "whoever being under sentence of im

,prisonment for life commits murder shall be punislied with death". The C 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 s. 302 I.P.C. and sentenced to imprisonment for life in appeal by the State against his acquittal . . The State Government, in exercise of its power under s. 402 Cr. P. C. condi .tionally remitted his sentence on February 8, 1972 and he was, therefore, con .ditionally 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 D .and (ii) he will not in any way associate with persons 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 s. 302 read with s. 303 .I P. C. by the Sessions Judge, Kolar on November 7, 1974 and sentenced t<> .death under s. 303 I. P. c. On an appeal to the High Court which was heard along with the reference for confirmation, the sentence of death under s. 302 It held that s. 303 I. P. C. J. P. C. was confirmed on November 19, 1975. .was applicable as this was,'a case of conditional remission under s. 401 Cr P. c.. E .and the second murder was committed during the unexpired portion of the sentence of imprisonment for life. This Court while granting the ;:;pecial leave Jimited it to the question of applicability of s. 303 I. P. C. and the· sentence.

Aliowing the appeal parly and modifying the sentence of death to that of

.life imprisonment. the Court,

, HELD : (1) An accused cannot be urider a sentence of imprisonment for life at the time of commission of the second murder unless- he is actually under- .going 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 s. 401 Cr. P.C. [398 H, 399-AJ

(2) The earlier sentence of imprisonment for life became final and inexor- such a able so far as the judicial process was concerned. sentence is "operative and executable" that s. 303 I.P.C. a attracted. [395-C]

It is only when

Di/ip Kumar Sharma & Ors. State of Madhya Prades_h [1976] (2) SCR

289, referred to.

(3 ~ ~ection 303 J.P.C. is applicable only to an accused who on the date of .comm1ss1on of the second offence of murder had earlier committed a murder .~or. ~hich his conviction and sentence of imprisonment for life were beyond [399-A] 1ud1c1al controversy and operative.

(4) Unlike in the. case of s. 75. I.P.~., s. 303 I.P.C. does not ccnternplate a mere onhanced pumshment for a convict with a past criminal history for the same· offenc~ Section 303 I.P.C. creates a· most aggregated form of offence whe:n commttted~ by a person undet sentence of in1prisonment for life to be punished only with death, the maximum penalty under the law. The tn1e effec~

F

G

H

394

SUPREME COURT REPORTS .

[1977] 3 S.C.R.

A

. of s. 303, I.P.C. 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 alternative ,sentence. The· only sentence the court has power and is obliged to impose and no other is the sen~ence of death.

[399 B~C]

B

c

D

E

F

G

H

(5) A person must be actually and irrevocably the lifer beyond the pale of • ,judicial controversy at the. time of commission of the second offence of murder .to be vitiated with a penalty of death under s. 303 J.P.C. 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 s. 303 I.P.C. [399-C]

. (6) For the purpose of s. 303 l.P.C. there can be no warrant for introduc jng 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 s. 303 I.P.C. [399-D]

Sohan Singh v. State [1965] (1) !LR 181 Punjab 201, over-ruled.

(7) Section 401 (3) makes it clear that for the purpose of s. 303 J.P.C., it . does not make any difference whether the remission under s. 401 Cr. P.C. is witp_ or \Yithout conditions. [396-F]

Po Kun v. King AIR 1939 Rangoon 124; Sagan Singh v. State [196.l] !LR 181 Punjab 201; Gulam Mohan1mad Wali Mohamn1ad v. E1nperor AIR 1943 Sind 114 and Sarai Chandra Rabha & Ors. v. Kagendranath & Ors. [1961](2) SCR 133, referred to.

It will certainly be open

. (8) Section 401(3) leaves it to the option of the Government to take the penal action and there is no automatic return of the prisoner tu the jail on breach of any condition of the remission. 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 o.f cancellation of the remission bf 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· he is in enjoyment of the freedom on account of remission. That period is not even reckoned under s. 401 Cr. P.C. for the purpose of calculation of the sentence to be served in the eventuality. [397 B-C, E]

to

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No 592/

1976.

(Appeal by S.Eecial Leave from the Judgment and Order dated 19.11.1975 of the Karnataka High Court in Cr!. A. No. 551 of 1974 and Reference Case No. 56/74)

R. B. Datar, for the appellant Narayan Nettar and R. C. Kaushik, for the respondent. The Judgement of the Court was delivered by

GOSWAMI, J. The short question in this appeal by special leave is whether a person sentenced to imprisonment for life and later released by the Government by remission o~ the sentence under section 401, Criminal Procedure Code, 1898, continues to "being under sentence of imprisonment for life" for 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 sechon 302 IPC and sentenced to im prisonment for life in an appeal by the State against his acquittal.

4

ABDUL AZEEZ v. KARNATAKA (Goswami, J.)

395

, The earlier·murder was on December 3, 1959. The State Govern- A ment in exercise of its power nnder section 401 Cr. P.C. condition- ;ally remitted his sentence on Feburary 8, 1972. Thns he was cond1Uon- ally released from jail on Feburary 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 nnder section 302 and section 303 . IPC by the Sessions Judge, Kolar, on November 7, 1974 and sentenced to death B under section 303 IPC. On an appeal to the High Court by ths appellant which was heard along with the reference for confirmation, the sentence of death under section 303 IPC was confirmed on Novem- ber 19, 1976. Hence this appeal by special leave limited to the question of applicability of section 303 IPC and the sentence.

The earlier sentence of imprisonment for life became final and C

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 Sharma & Ors. v. State of Madhya Pradesh (1) .

'·

The remission of the sentence in this case is by the State of Karna taka in exercise of its statutory power under section 401 Cr. P.C. The power has been exercised, in the instant case, laying down certain conditions which the convict had accepted. The two conditions were ~hat, 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 persons 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 nndergone over 15t years' oi 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 19, 1976.

])

E

F

Shortly stated, was the appellant under sentence of imprisonment 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 imprison ment for life on that day the court cannot come to his rescue by exer .!Cising discretionary clemency in favour of the alternative sentence. IThen the· only sentence the court has power and is obliged to impose, land no other, is the sentence of death. That is the true effect of sec- G It.ion 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 ffPC. The court will be helpless in snch an event.

The Sessions Judge as well as the High Conrt held that section 303 IPC was applicable as this was a case of conditional remission nnder section 401 Cr. P.C. and the second murder was committed n during the unexpired portion of the sentence of imprisonment for life.

(I) [1976] 2 S.C.R. 289.

•

A

B

c

D

396

SUPREME cou~u REPORTS

[1977] 3 S.C.R.

It is the correctness of the above view of the law that falls for !consideration before us. That view receives support from the follow ring decisions cited at the bar.

The first decision is from the Rangoon High Court in Po Kun v .. ·

The King(1).

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 s. 403? Criminal P.C., and the person is such person must still be deemed to be undet sentence of trans portation for life in spite of the fact that he is not actually under sentence or in a penal settlement". The next decision is from the Punjab High Court in Sohan Singh

released,

v. The State( 2

).

It was held in that case that-

"it is not essential for the application of the section (303 IPC) that a person should be ~ctnally 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 ont 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 In the cir undergo the unexpired portion of the sentence. cumstances the accused should be deemed to be under sen tence of imprisonment for life when the present occurrence took place".

Our attention was drawn to a decision of the Sind Court in Ghulam Muhammad Wali Muhammad v. Emperor(') which was a case of ."unconditional remission of the sentence under section 401 Cr. P.C. !It was held in that decision that since the Provincial Government had Temitted the sentence without condition under section 401 Cr. P.C. 'the accused committing the second murder after the remission would 1110 longer be said to be "under a sentence of transportation for life, 'that sentence having in effect been served".

F

We are, however, clearly of opinion that fov the purpose of section 303 IPC it does not make any difference whether the remission under section 401 Cr. P:C. with or without conditions. This is clear from 'a perusal of sub-section (3) of section 401 Cr. P.C. 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 thereupon the person

(!)A.LR. 1939 Rangoon 124. (2) [1965] I.L.R. 18 (!) Punjab 201. (3) A.I.R. 1943 Sind 114.

ABDUL AZEEZ v. KARNATAKA (Goswami, J.)

397

In whose favour the sentence has been suspended or remit- ted, may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence".

A

It will certainly be open to the, Government in a, particular B

It is manifest from the above provision that on breach of any con dition of the remission there is not an automatic revival of the sen ltem;e. .case to cancel the remission but it may not. The Government is not It is only when the ,under a legal obligation to cancel the remission. 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 accus- led who is rele;.ised cannot be said to be under a sentence of imprison ment for life. While he is in enjoyment of the freedom on account c .of remission, that period is not even reckoned under section 401 Cr. IP.C. for the purpose of calculation of the sentence to be served in the !eventuality.

Take the present case. Supp.ose dnring the unexpired period of fuis sentence, which would had normally ended on January 9, 1976, lthe accused made breach of the fust condition of the remission giving D 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, tihat "he will not commit any offence punishable by any law in Mysore". Can it be conceived that in such a case the Government will imme diately 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. P.C. advisedly leaves it to the option of the Government E to take the• penal action and there is no antomatia return of the pri soner to the jail.

F

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 v. Khagendranath Nath and Others(!). In Sarai Chandra Rabha case (supra) the question of remission under section 401 Cr. P.C. came up for consideration in the context of a disqualification clause under section 7 (b) of the Representation of the People Act, In that case the appellant's nomination paper was rejected by 1951. the Returning Officer for incurring disqualification under section 7 (b) of the Representation of the People Act. According to section 7 (b) of the Act, a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly G 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 the Explosive Snbstaiices Act, convicted under section 4(b) of (VI of 1908) and rigorous ment on July 10, 1953 and

the nomination paper was

imprison- H filed

sentenced fo

three years'

(I) [1961] 2 S.C.R. 133.

398

SUPREME COUTS REPORTS

[1977] 3 S.C.R.

A

B

c

D

E

F

in January 1957 and the election was held in Feburary 1957 Thus the period of five years had not elapsed since his release by the State under section 401 Cr. P.C. on November 14, 1954. This Court held in that case that section 401 Cr. P.C., unlike the grant of a free tpardon, cannot wipe out eithe_r the conviction or the sentence and affirmed the order of rejection of the nomination paper on the ground of disqualification incurred under section 7(b) of the Representation of the People Act.

Mr. Nettar for the State emphasises upon the observation of this Court in Sarat Chandra Rabha case (supra) that there is no wiping icmt of the conviction and sentence under section 401 Cr. P.C. in the 'Present case and, therefore, the present appellant's conviction and rsentence 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 disqualification clause under an Act !which even provides for removal of disqualification by the Electiqn Commission and which was not actually done. There is a complete !purging process provided in the Representation of the People Act it self 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. P.C. in order to set at naught the penitentiary period provided for in the Act, in absence of removal of the disqualification by the Election Com mission under the Act. Those were the considerations which weighed with this, Court when it refused to do away with the effect of the judi cial conviction and sentence merely on the basis of executive remis sion. Even if the sentence were run through without remission, the five yearn' period had to elapse for commencement of new electoral 1ifo. Thll factum of conviction and the sentence is sufficient and it 'does not matter whether it has been served out wholly or a portion of ~t 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 Sarai Chandra Rabha case (supra) ~loes 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 from the above decision of this Court.

The observations of this Court in Sarat Chandra Rabha case (supra) ~ith regard to wiping out of conviction and sentence cannot be press '!'d 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 passi ~i!ity 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 1mexpired period of his imprisonment conditionally remitted under isection 401 Cr. P.C.? We are clearly of opinion that an accused can not be under a sentence 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

G

H

. I

ABDUL AZEEZ v. KARNATAKA (Goswami, J.)

399

is bound

the requirement of a to serve without which he separate order to breathe life into the sentence which was otherwise dead on account of remission under section 401 Cr.P.C. Section 303 IPC is applicable only to an accused who, on the date of com mission of the second offence of murder, had earlier committed a ~urder 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 punishment 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 per son under sentence of imprisonment for life to be punished only with death, the maximum penalty under the law. A person must be actu ally and irrevocably a lifer beyond the pale of judicial controversy at the time of commission of the second offence of murder to be visited If the sentence of with the penalty of death under section 303 IPC. a convict had already been remitted at the time of commission of the second murder he wo11Jd 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 res pect, 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 convicted 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 appellant, 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.

A

B

c

D

E

S.R.

Appeal allowed in part.

11-436SCI/77