KASHMIRI Vs. STATE OF HARYANA

JUDGEMENT

(1.) The present writ petition has been placed before this Bench on the Reference made by the learned Single Judge on 7.7.2011, in respect of the interpretation of Section 427(2) of the Code of Criminal Procedure (for short "Code"). A Single Bench of this court in the case of Jaswant Singh v. State of Punjab (Crl. Misc. No. M-21695 of 2009 decided on 2.3.2010), has held that where a life convict earns remission in the sentence of life imprisonment, it becomes imprisonment for a term and the case is taken out of the purview of sub-section (2) of Section 427 of the Code. The correctness of the said view is an issue in the present case. On the basis of the arguments raised, we find that the following questions of law arise for consideration:-

(2.) The brief facts to appreciate the questions raised are that the petitioner was convicted for an offence under Section 302 IPC in a case arising out of FIR No. 421 dated 4.9.1994, registered at Police Station Tohana in the State of Haryana (then in the District Hisar). While, the petitioner was undergoing the said sentence and when he was on parole, he was involved in FIR No. 94 dated 9.2.1998, Police Station City Sonepat, for an offence under Sections 455 and 397 IPC. In such case, he has been convicted and sentenced to undergo RI for 10 years for an offence under Section 397 IPC and RI for 7 years under Section 455 IPC. There is no order that such punishment shall run concurrently with the sentence of life imprisonment. Criminal Appeal No. 583-SB of 2001 is pending before this Court against the said conviction and sentence. The petitioner has over stayed parole in the year 2007 and has been sentenced to undergo RI for one year vide order dated 11.3.2008 in FIR No. 515 dated 4.8.2007. Earlier also, the petitioner over stayed parole, but was not imposed any sentence of imprisonment.

(3.) Learned counsel for the petitioner contends that the remaining sentence of the petitioner has been remitted by the State Government vide Haryana Government Order dated 25.8.2010 and the petitioner released in the case arising out of FIR No. 421 dated 4.9.1994 on 19.10.2010. As per the custody certificate produced by the petitioner, he is in custody in the second case arising out of FIR No. 94 dated 9.2.1998 since 20.10.2010. It is argued that since the petitioner was undergoing a sentence for life imprisonment, therefore, in terms of Section 427(2) of the Code, the sentence of 10 years RI imposed in the second case, has to run concurrently with the sentence of life imprisonment for the previous offence. It is contended that grant of remission does not convert the sentence imposed upon the petitioner as that of a fixed term imprisonment and, therefore, the case does not fall within the scope of Section 427(1) of the Code. It is contended that in terms of Section 432(3) of the Code, even after remission of sentence, the petitioner can be called upon to undergo sentence in the event of the violation of the conditions specified therein. It is argued that the finding recorded in Jaswant Singh's case that grant of remission to a convict undergoing life imprisonment makes it imprisonment for a fixed term, is not a correct proposition of law. It is contended that commutation of sentence of life imprisonment make it term for a fixed term. But the grant of remission to a convict undergoing life imprisonment does not wipe off the substantive sentence of life.