PETITIONER:
SHAIK ABDUL AZEEZ
Vs.
RESPONDENT:
STATE OF KARNATAKA
DATE OF JUDGMENT28/03/1977
BENCH:
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION:
1977 AIR 1485 1977 SCR (3) 393
1977 SCC (2) 485
ACT
Penal Code (Act 45 of 1860), 1860, section 303--Death
Sentence for murder by life convict--Whether a person sen-
tenced to imprisonment for life and later released by the
Government by remission of sentence u/s. 401 of the .Cr.
P.C., ,1898 (1973 Code, s. 432) continues to "being under
sentence of imprisonment for life" for the purpose of s. 303
I. P.C.--Criminal Procedure Code, 1898, sec. 401 (1973 Code,
section 432)---Scope of.
HEADNOTE
Section 303 I.P.C. lays down that "whoever being under
sentence of imprisonment for life commits murder shall be
punished with death". The 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. conditionally
remitted his sentence on February 8, 1972 and he was, there-
fore, conditionally 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 and (ii) he will not in any way associate with per-
sons 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 to 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 I. P.C. was confirmed on November 19, 1975.
It held that s. 303 I.P.C. was applicable. as this was In
case of conditional remission under s. 401 Cr P.C. and the
second murder was committed during the unexpired portion
of the sentence of imprisonment for life. This Court while
granting the special leave limited it to the question of
applicability of s. 303 I.P.C. and the sentence.
Allowing the appeal parly and modifying the sentence of
death to that of life imprisonment, the Court,
HELD: (1) An accused cannot be under a sentence of im-
prisonment for life at the time of commission of the second
murder unless he is actually undergoing 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-A]
(2) The earlier sentence of imprisonment for life became
final and inexor able so far as the judicial process was
concerned. It is only when such a sentence is "operative
and executable that s. 303 I.P.C. a attracted. [395-C]
Dilip Kumar Sharma & Ors. State of Madhya Pradesh [1976]
(2) SCR 289, referred to.
(3) Section 303 I.P.C. is applicable only to an accused
who on the date of ,commission of the second offence of
murder had earlier committed a murder for which his convic-
tion and sentence of imprisonment for life were beyond judi-
cial controversy and operative. [399-A]
(4) Unlike in the case of s. 75. LP.C., s. 303 I.P.C.
does not contemplate a mere enhanced punishment for a con-
vict with a past criminal history for the same offence
Section 303 I.P.C. creates a most aggregated form of offence
when, committed by a person under sentence of imprisonment
for life to be punished only with death, the maximum penalty
under the law. The true effect
394
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 alterna-
tive sentence. The only sentence the court has power and
is obliged to impose and no other is the sentence of death.
[399 B-C]
(5) A person must be actually and irrevocably the lifer
beyond the pale of judicial controversy at the time of
commission controversy of the second offence of murder to
be vitiated with a penalty of death under s. 303 I.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 I.P.C. there, can be no
warrant for introducing 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) ILR 181 Punjab 201, over-
ruled.
(7) Section 401(3) makes it clear that for the purpose. of
s. 303 I.P.C., it does not make any difference whether the
remission under s. 401 Cr. P.C. is with or without condi-
tions. [396-F]
Po Kun v. King AIR 1939 Rangoon 124; Sogan Singh v. State
[1965] ILR 181 Punjab 201; Gulam Mohammad Wali Mohammad v.
Emperor AIR 1943 Sind 114 and Sarat Chandra Rabha & Ors. v.
Kagendranath & Ors. [1961](2) SCR 133, referred to.
(8) Section 401(3) leaves it to the option of the Govern-
ment to take the penal action and there is no automatic
return of the prisoner to the jail on breach of any condi-
tion of the remission. It will certainly be open to 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 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
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]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No 592/
1976.
(Appeal by Special Leave from the Judgment and Order
dated 19.11.1975 of the Karnataka High Court in Crl. 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 spe-
cial leave is whether a person sentenced to imprisonment for
life and later released by the Government by remission of
the sentence under section 401, Criminal Procedure Code,
1898, continues to "being under sentence of imprisonment for
life" fort 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 section 302 IPC and
sentenced to. imprisonment for life in an appeal by the
State against his acquittal.
395
The earlier murder was on December 3, 1959. The State
Government in exercise of its power under section 401 Cr.
P.C. conditionally remitted his sentence on Feburary 8,
1972. Thus he was conditionally released from jail on Febu-
rary 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 under section 302 and section 303 IPC by the
Sessions Judge, Kolar, on November 7, 1974 and sentenced to
death under section 303 IPC. On an appeal to the High
Court by the appellant which was heard along with the refer-
ence for confirmation, .the sentence of death under section
303 IPC was confirmed on November 19, 1976. Hence this
appeal by special leave limited to the question of ap-
plicability of section 303 IPC and the sentence.
The earlier sentence of imprisonment for life became
final and 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 Sharrna & Ors. v. State of Madhya Pradesh (1).
The remission of the sentence in this case is by the
State of Karnataka 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 that, 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 per-
sons 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
undergone over years of 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 1976.
Shortly stated, was the appellant under sentence of impris-
onment 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 imprisonment for life on that day the
court cannot come to his rescue by exercising discretionary
clemency in favour of the alternative sentence. Then the
only sentence the court has power and is obliged to impose,
and no other, is the sentence of death. That is the true
effect of section 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 IPC. The court will be
helpless in such an event.
The Sessions Judge as well as the High Court held that
section 303 IPC was applicable as this was a case of condi-
tional remission under section 401 Cr. P.C. and the second
murder was committed during the unexpired portion of the
sentence of imprisonment for life.
(1) [1976] 2 S.C.R. 289.
396
It is the correctness of the above view of the law that
falls for consideration before us. That view receives
support from the following 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 released,
such person must still be deemed to be under,
sentence of transportation for life in spite
of the fact that he is not actually under
sentence or in a penal settlement".
0
The next decision is from the Punjab High Court in Sohan
Singh v. The State(2). It was held in that case that--
"it is not essential for the applica-
tion of the section (303 IPC) that a person
should be actually 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
out 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
undergo the unexpired portion of the sentence.
In the circumstances. the accused should be
deemed to be under sentence of imprisonment
for life when the present occurrence took
place".
Our attention was drawn to a decision Of the Sind Court
in Ghularn Muhammad Wali Muhammad v. Emperor(3) which was a
case of unconditional remission of the sentence under sec-
tion 401 Cr. P.C. It was held in that decision that since
the Provincial Government had ’remitted the sentence without
condition under section 401 Cr. P.C. the accused committing
the second murder after the remission would no longer be
said to be "under a sentence of transportation for life,
that sentence having in effect been served".
We are, however, clearly of opinion that for 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 there-
upon the person
(1) A.I.R. 1939 Rangoon 124.
(2) [1965] I.L.R. 18 (1) Punjab 201.
(3) A.I.R. 1943 Sind 114.
397
in whose favour the sentence has been suspend-
ed or remitted, may, if at large, be arrested
by any police officer without warrant and
remanded to undergo the unexpired portion of
the sentence".
0
It is manifest from the above provision that on breach
of any condition of the remission there is not an automatic
revival of the sentence. It will certainly be open to. 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 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 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 section 401 Cr. P.C. for
the purpose of calculation of the sentence to. be served in
the eventuallty.
Take the present case. Suppose during the unexpired
period of this sentence, which would had normally ended on
January 9, 1976, the accused made breach of the first condi-
tion of the remission giving 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, that "he
will not commit any offence punishable by any law in
Mysore". Can it be conceived that in such a case the Govern-
ment will immediately 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 to take the penal
action and there is no automatic return of the prisoner to
the jail.
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(1). In Sarat Chandra Rabha case (supra) the ques-
tion 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,
1951. In that case the appellant’s nomination paper was
rejected by the Returning Officer for incurring disqualifi-
cation 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 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 convicted
under section 4(b) of the Explosive Substances Act, (VI
of 1908) and sentenced to three years’ rigorous impris-
onment on July 10, 1953 and the nomination paper was filed
(1) [1961] 2 S.C.R. 133.
398
in January 1957 and the election was held in Feburary
1957 Thus the period of five years had not elapsed since
iris 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 pardon,
cannot wipe out either 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 the People Act.
Mr. Nettar for the State emphasises upon the observa-
tion of this Court in Sarat Chandra Rabha case (supra) that
there is no wiping out of the conviction and sentence under
section 401 Cr. P.C. in the present case and, therefore, the
present appellant’s. conviction and sentence 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 disqualifica-
tion clause under an Act which even provides for removal of
disqualification by the Election Commission and which was
not actually done. There is a complete purging process
provided in the Representation of the People Act itself 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 Commission
under the Act. Those were the considerations which weighed
with this Court when it refused to do away with the effect
of the judicial conviction and sentence merely on the basis
of executive remission. Even if the sentence were run
through without remission, the five years,’ period had to
elapse for commencement of new electoral life. The facturn
of conviction and the sentence is sufficient and it does not
matter whether it has been served out wholly or a portion of
it 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
Sarat Chandra Rabha ’case (supra) does 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 flora the above decision of this
Court.
The observations of this Court in Sarat Chandra Rabha
case (supra) with regard to wiping out of conviction and
sentence cannot be pressed 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 possibility 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 unexpired period of his imprisonment
conditionally remitted under 1 section 401 Cr. P.C.? We are
clearly of opinion that an accused cannot be under a sen-
tence 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
399
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 section
401 Cr.P.C. Section 303 IPC is applicable only to an ac-
cused who, on the date of commission of the second offence
of murder, had earlier committed a murder 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 punish-
ment 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 person under sentence of impris-
onment for life to be punished only with death, the maximum
penalty under the law. A person must be actually and irrev-
ocably a lifer beyond the pale of judicial controversy at
the time of commission of the second offence of murder to be
visited with the penalty of death under section 303 IPC. 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 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 respect, 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 con-
victed 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 appel-
lant, 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.
S.R. Appeal allowed in part.
11--436SC1/77
400