In CRIMINAL WRIT PETITION NO.53 OF 2021-BOM HC- If earlier sentence of life imprisonment is imposed, then subsequent sentence of imprisonment for term or for life cannot run consecutively, u/s 427(2) of CrPC: Bombay HC Justices V.K. Jadhav & Sandipkumar C. More [06-04-2022]

Read Order: Mahadev Asaram Sillode v. The State of Maharashtra & Ors 

Tulip Kanth

New Delhi, April 9, 2022: Directing that the substantive sentence of imprisonment imposed on the petitioner-life convict by the Additional Sessions Judge, Aurangabad for a period of 10 years shall run concurrently with the sentence of life imprisonment passed by the Ad-hoc Additional Sessions Judge, the Aurangabad Bench of the Bombay High Court has held that u/s 427(2) of CrPC, if the earlier sentence of imprisonment for life is imposed, then there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively.

The Division Bench of Justice V.K.Jadhav and Justice Sandipkumar C.More was of the opinion that imprisonment for life is a sentence for the remainder of the life of the offender unless the remaining sentence is commuted or remitted by the appropriate authority. 

The High Court made these observations while considering a Criminal Writ Petiton under Article 226 of the Constitution of India filed by a petitioner-life convict, seeking directions that the life sentence imposed by the Adhoc Additional Sessions Judge in a Sessions Case confirmed by this Court in criminal appeal and the sentence of 10 years rigorous imprisonment imposed by the Additional Sessions Judge, Aurangabad in another Sessions Case to run concurrently in terms of the provisions of Section 427(2) of Cr.P.C.

The petitioner’s counsel submitted that the Court has to consider the totality of the sentence which the accused has to undergo if the sentences are to be consecutive and the Additional Sessions Judge, Aurangabad did not consider the provisions of Section 427 (2) of Cr.P.C. and merely sentenced the petitioner to suffer R.I for 10 years under Sections 307 and 333 of I.P.C. each.

From the side of the State, it was contended that the petitioner, while undergoing life imprisonment in terms of the earlier sentence, had committed another offence while in jail. He had attempted to commit murder of a jail employee while the said jail employee was discharging his official duty and so, the petitioner deserved no sympathy. 

At the outset, the Division Bench said, “..the earlier sentence of imprisonment for life must be understood as life imprisonment for remainder of the life and therefore, the subsequent sentence of imprisonment for a term or for life cannot run consecutively.”

According to the Court, so far as the subsequent conviction of the petitioner in Sessions Case for the offence punishable under Sections 307 and 333 of I.P.C. sentencing him to 10 years imprisonment for each of the offences was concerned, the trial court had failed to consider the provisions of Section 427(2) of Cr.P.C. despite the earlier conviction of life imprisonment brought to the notice of the Court. 

The Bench opined that the said judgment and order of conviction passed without following the mandate of Section 427(2) of Cr.P.C. was required to be corrected as the petitioner had committed an offence, which was the subject matter of the second trial, in jail premises while undergoing life imprisonment in connection with the earlier sentence. So far as the subsequent sentence of the petitioner under the aforesaid sections was concerned, the petitioner had not preferred any appeal against the said  order of conviction. 

Clarifying that the present case fell within the ambit of  the provision of sub-section (2) of Section 427 of Cr.P.C., the Bench noticed that in sub-section (1) of Section 427 of Cr.P.C., without the court’s direction, the subsequent sentence will not run concurrently, but consecutively. However, the only situation in which no direction of the court is needed to make the subsequent sentence to run concurrently with the previous sentence is provided for in sub-Section (2) which has been enacted to avoid any possible controversy based on sub-section (1) of Section 427 of Cr.P.C.

The Court opined that sub-section (2) is in the nature of an exception to the general rule enacted in sub-section (1) of Section 427. Referring to judgments of the Apex Court, the Bench said “The Supreme Court has held in the case of Gopal Vinayak Godse v. State of Maharashtra [AIR 1961 SC 600 ] and reiterated in Maru Ram that imprisonment for life is a sentence for the remainder of the life of the offender. In terms of provisions of Section 427(2) of Cr.P.C., if the earlier sentence of imprisonment for life is imposed, then there can be no question of a subsequent sentence of imprisonment for a term or for life running consecutively.”

On the question of maintainability of the petition, referring to Article 226 of the Constitution, the High Court clarified that Article 226 of the Constitution is available for correcting the gross error of jurisdiction when a subordinate court is found to have acted  by assuming jurisdiction where there exists none, by overstepping or crossing the limits of jurisdiction, acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.

The Bench found that this was a fit case wherein the powers under Article 226 could be exercised to correct the order passed by the trial court in Sessions Case thereby convicting the petitioner for the offences punishable under Sections 307 and 333 of I.P.C. and sentencing him to suffer 10 years imprisonment for each of the offences. Thus, the High Court directed that the above sentences shall run concurrently with the sentence of imprisonment of life passed against the petitioner in Sessions Case passed by the Adhoc Additional Sessions Judge, Jalna.