Hanuman v. State Of Maharashtra, Through Police Station Officer .

for the petitioner and Mr. N. R. Rode, the learned Additional Public Prosecutor for the respondent/State.

3. In this petition, petitioner- a life convict for the offence punishable under Section 302 of the Indian Penal Code has sought relief under Section 427(2) of the Code of Criminal Procedure.

4. Undisputedly, while undergoing the sentence of life imprisonment, the petitioner was released on parole on 06.1.2016 for a period of thirty days and it was extended further for sixty days. The petitioner was supposed to surrender before the jail authorities on or before 06.4.2016, but he failed to do so. Therefore, an offence punishable under Section 224 of the Indian Penal Code was registered against him.

4. The learned Judicial Magistrate, First Class, Bhadrawati, after the trial, found the petitioner guilty of the said offence and sentenced him to rigorous imprisonment for one year and fine of Rs.500/- and in default of payment of fine to undergo rigorous imprisonment for fifteen days.

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5. It is submitted that the learned Judicial Magistrate, First Class, Bhadrawati did not consider the provision of Section 427(2) of the Code of Criminal Procedure, which says "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.". The petitioner has sought his entitlement under the aforesaid section.

6. Mr. Rode, the learned Additional Public Prosecutor appearing for the State opposed the petition and submitted that the explanation to Section 224 of the Indian Penal Code states that the punishment under Section 224 is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted and therefore both the sentences can not run concurrently.

7. We have considered the submissions on behalf of both the parties. At the outset, for ready reference the texts of both the sections i.e. Section 427 of the Code of Criminal Procedure and

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Section 224 of Indian Penal Code, are reproduced herein below :

"427. Sentence on offender already sentenced for another offence :-

1) When a person already undergoing a sentence of imprisonment is sentenced ona 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 sentence, 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 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 concurrently with such previous sentence."

"224 - Resistance of obstruction by a person to his lawful apprehension -

Whoever , intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description or a term which may extend to two years, or with

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fine, or with both. Explanation - The punishment in this section is in addition to the punishment for which the person to be apprehended or detained in custody was liable for the offence with which he was charged, or of which he was convicted."

8. On bare perusal of Section 427 of the Code of Criminal Procedure, sub section (1) speaks about the situation when a person who is already undergoing the 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 otherwise.

9. While sub-section 2 of Section 427 applies to a situation when a person already undergoing 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. This provision is couched in a mandatory form. There is no exception to it.

10. Section 427 is placed in Chapter XXXII of Cr. P. C. with

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the heading "Execution, Suspension, Remission and Commutation of Sentences". This chapter covers section 413 to section 435. Section 427 of the Code of Criminal Procedure visualizes the situations in which whether to impose consecutive or concurrent sentence. This provision deals with the manner of execution of the sentence on subsequent conviction. Sub-section (2) of Section 427 especially deals with the situation when a life convict is again convicted and sentenced to imprisonment for subsequent and distinct crime, the subsequent sentence shall run concurrently.

11. In this regard, the Apex Court in the case of Ranjit Singh v/s U. T. of Chandigarh reported in AIR 1991 SC 2296 while interpreting Section 427(2) of the Code of Criminal Procedure applied the logic that as the earlier sentence of imprisonment for life being understood to mean as sentence to serve the remainder of life in person unless commuted or remitted by the appropriate authority and a person having only one life span, the sentence of a subsequent conviction of imprisonment for a term of imprisonment for life can only be superimposed to the earlier life sentence and certainly not added to it since extending the life span of the offender or for that

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matter of any one is beyond human right.

12. While, Section 224 of the Indian Penal Code is a punitive provision which defines the crime and its punishment. The explanation to section 224 clarifies the text of the section in the sense that both the offenses are distinct and separate. It is not a substantive provision. It does not say as to how the sentence for the subsequent crime shall be executed. As stated earlier, the manner of execution of the sentence for the subsequent crime is provided under Section 427 of the Code of Criminal Procedure.

13. Our aforesaid observation lends further support from the observation of the Division Bench of this court in the case of

Emperor v/s Chokhu Yesu reported in (1934) 36 Bom L R 963

wherein it is observed that "there is nothing in the explanation to require that a sentence of imprisonment under Section 224 must be made to run consecutively to a sentence imposed for the main offence of which the accused was convicted. A concurrent sentence is none the less an additional sentence. It might happen that on appeal the conviction for the main offence was set aside and the conviction

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under Section 224 was affirmed, in which case a separate, though concurrent, sentence under the latter section would become operative."

14. In addition to the above, the Larger Bench of the Hon'ble Apex Court in the case S. Sundaram Pillai and others v/s V. R. Pattabhiram reported in 1985(1) SCC 591, in paragraph 46 while interpreting the impact of 'explanation' to any provision in the statute held thus -

"46. ...…. It is well settled that the 'explanation' added to a statutory provision is not a substantive provision in any sense of the term but as the plain meaning of the word itself shows it is merely meant to explain or clarify certain ambiguities which may have crept in the statutory provision." In this judgment, the Hon'ble Apex Court, after referring various authors on Interpretation of statutes and judicial pronouncements, in para 53 culled out the purposes of an 'explanation' to statutory provision, which reads thus:

"53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is—

"(a) to explain the meaning and intendment of the Act itself,

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(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,

(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same."

15. As per clause (e) above, the 'explanation' cannot take away a statutory right with which any person under a statute has been clothed by becoming an hindrance in the interpretation of the same.

16. In the instant case, undisputedly, the petitioner is undergoing life imprisonment for the offence punishable under Section 302 of the Indian Penal Code and he is subsequently convicted and sentenced for imprisonment for one year for which,

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according to us, Section 427(2) of the Code of Criminal Procedure is clearly applicable. The petitioner is entitled to the benefit of Section 427(2) of the Code of Criminal Procedure, as afterall this section confers a statutory right on a convict. The explanation to Section 224 of the Indian Penal Code would not become an hindrance to the entitlement of the convict under Section 427(2) of the Code of Criminal Procedure for the reason that Section 224 of the Indian Penal Code does not say anything about consecutive or concurrent running of the sentence and this aspect of penology is dealt with under Chapter XXX(ii) of the Code Criminal Procedure separately. This fact has not been considered by the learned Magistrate while pronouncing subsequent senence for the subsequent crime. In view of the aforesaid, it needs to be declared that rigorous imprisonment of one year awarded to the petitioner in Summary Criminal Case No.437/2016 shall run concurrently with sentence of life imprisonment, which he is presently undergoing. We pass the following order.

17. The criminal writ petition is allowed. It is declared that the sentence of rigorous imprisonment

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of one year awarded to the petitioner in Summary Criminal Case No. 437/2016 shall run concurrently with the sentence of life imprisonment awarded to the petitioner and which sentence the petitioner is presently undergoing, in terms of Section 427(2) of the Code of Criminal Procedure. The impugned order stands modified accordingly.

18. Legal remuneration of Rs.3,000/- (Rupees Three thousand only) be paid to the learned appointed counsel for the petitioner.

Rule is made absolute in these terms. The petition is disposed of.

JUDGE JUDGE

Diwale

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