ZACHARIA Vs. STATE

JUDGEMENT

(1.) If an accused while undergoing imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term, is he disentitled to get the protection of Sub-Section(2) of Section 427 of the Code of Criminal Procedure (for short, "the Code") for the reason that the subsequent sentence of imprisonment on him was suspended by the appellate court and he executed the bond but he was not released in view of the imprisonment for life awarded to him That question is urged for a decision in this proceeding.

(2.) Petitioner, by the judgment of learned Second Additional Sessions Judge, Ernakulam dated November 10, 1997 in S.C. No. 82 of 1996 was convicted for offence under Section 302 of the Indian Penal Code (for short, "the IPC") and sentenced to undergo imprisonment for life. While he was undergoing life imprisonment he preferred an appeal against conviction and sentence but the sentence of imprisonment was not suspended, nor requested for. While so, petitioner was convicted by learned Assistant Sessions Judge, Kochi by judgment dated September 30, 1999 in S.C. No. 80 of 1995 for offence under Section 307 of the IPC and sentenced to undergo rigorous imprisonment for six years. Learned Assistant Sessions Judge, in accordance with Sub-Section(2) of the Section 427 of the Code directed that the said sentence shall run concurrently with the sentence of imprisonment for life (awarded in S.C. No. 82 of 1996). Against conviction and sentence in S.C. No. 80 of 1995, petitioner preferred an appeal and applied for suspension of sentence. The appellate court granted an order of suspension of sentence. Petitioner executed bond as directed by the appellate court but he was not released (nor could he) since at that time he was undergoing life imprisonment awarded in S.C. No. 82 of 1996. The period of life imprisonment (having been commuted) has expired and petitioner was released on August 05, 2009. Criminal Appeal filed against conviction and sentence in S.C. No. 80 of 1995 was dismissed on 28.10.2002 and the revision arising from that judgment was dismissed on October 15, 2009. Learned Assistant Sessions Judge, Kochi issued warrant for arrest of petitioner to take him to custody to serve the sentence of imprisonment awarded in S.C. No. 80 of 1995 during the period it was suspended as per order of the appellate court. To recall that warrant, petitioner filed Crl. M.P. No. 71 of 2010 before learned Assistant Sessions Judge contending that he has already undergone the sentence of imprisonment awarded in S.C. No. 80 of 1995 as well notwithstanding that the sentence was suspended during the period his appeal was pending, and hence he is not liable to suffer any further imprisonment. Learned Assistant Sessions Judge has dispelled that contention of petitioner observing that sentence of imprisonment for six years awarded to the petitioner in S.C. No. 80 of 1995 was suspended by the appellate court and hence the period during which suspension remained in force cannot be reckoned as sentence undergone by petitioner in S.C. No. 80 of 1995. The said order is under challenge in this proceeding. Learned counsel has contended that though sentence of imprisonment awarded to the petitioner in S.C. No. 80 of 1995 was suspended by the appellate court in Criminal Appeal No. 319 of 1999 (of Sessions Court, Ernakulam) and petitioner had executed bail bond, he did not get the benefit of suspension since he was not released as he was undergoing imprisonment for life. Learned counsel argued that to direct petitioner to undergo imprisonment again in the above circumstances would lead to traversity of justice. Learned Public Prosecutor has contended that since sentence awarded to the petitioner in S.C. No. 80 of 1995 was suspended by the learned Sessions Judge in Crl. Appeal No. 319 of 1999, the period during which suspension remained in force cannot be reckoned for deciding whether petitioner has undergone the sentence awarded in S.C. No. 80 of 1995.

(3.) Section 427 of the Code deals with sentence on offender already sentenced for another offence. I am concerned with Sub-Section(2) of the said Section which says :-