Mohd. Hamid Hussain, J. - (1.) THIS is an application Under Section 561 -A of the Code of Criminal Procedure for quashing the charge Under Section 303 IPC and for staying the proceeding of the Sessions Trial No. 157 of 1972 against the Applicants.
(2.) THE contention is that the Applicants had been convicted Under Section 302 IPC in a case and the Applicants' appeal is pending in this Court and pending the final decision of the appeal the Applicants cannot be charged Under Section 303 IPC where the punishment, provided under the law is death. In support of this submission the learned Counsel has referred to Sections 426 and 430 of the Code of Criminal Procedure. None of these sections have any relevancy in the matter. The facts are that the Applicants were convicted Under Section 302 IPC in Sessions Trial No. 43 of 172 by the judgment dated 25 -7 -1972 by the Sessions Judge Hamirpur. The Applicants preferred an appeal to this Court and were released on bail. While they were on bail the alleged occurrence of murder took place on 10 -8 -1972 and for this murder the two Applicants along with seventeen others have been committed to the Court of Sessions to stated their trial. Since the Applicants had already been convicted Under Section 302 IPC and sentenced to imprisonment for life in the earlier Sessions Trial No. 43 of 1972, the committing court committed them on the charge Under Section 303 IPC.
(3.) THE contention is that the Applicants after being grained bail by this Court in the appeal pending in this Court, could not be deemed to be undergoing sentences thereby attracting the provisions of Section 303 IPC. A plain reading of Section 303 IPC shows that this contention is without force Section 303 IPC provides only for punishment in a case of murder for which the proper section of conviction is 302 IPC.;