Andhra Pradesh High Court - Amravati

Vijayanagaram Chinna Reddappa vs The State Of Ap on 8 December, 2022

Bench: A V Sai, Duppala Venkata Ramana

            HON'BLE SRI JUSTICE A.V.SESHA SAI
                                AND
 HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA

             WRIT PETITION No.36742 of 2022


ORDER: (Per Hon'ble Sri Justice Duppala Venkata Ramana)

      This Writ Petition is filed seeking a Writ of habeas corpus,

directing the 2nd respondent - Superintendent, Central Prison,

Kadapa to produce P.Reddy Bhaskar - Convict No.5357 lodged

in Central Prison, Kadapa, before this Court and be released

after declaring that his further detention in prison is illegal.

2. (a) Briefly stated, P.Reddy Bhaskar - accused was

convicted for the offence under Section 302 IPC by the learned

VI Additional District & Sessions Judge (FTC), Tirupati in

Sessions Case No.139 of 2006, and sentenced to undergo

imprisonment for life and to pay a fine of Rs.1,000/-, and in

default of payment of the fine amount, to undergo simple

imprisonment for one month, on 19.12.2006. While he was

undergoing the sentence, the Government of Andhra Pradesh

vide G.O.Ms.No.121 Home (Paroles & HRC) Department, dated

14.08.2022 had given a special remission to the convict prisoner

No.5357 and he was released on 15.08.2022. While serving the

life sentence, the said P.Reddy Bhaskar was also convicted and

sentenced in three other cases which are as follows:

S.No. Case No., Court and Sentence details Warrant Date

1. C.C.No.260/2006, Sentenced to undergo simple Judicial Magistrate of imprisonment for one year and pay a First Class, Piler, fine of Rs.500/- in default simple dt.22.08.2007 imprisonment for one month for the offence under Section 365 IPC. Fine amount was paid and the petitioner was released after the expiry of the sentence on 04.09.2022.

2 C.C.No.495/2014, Sentenced to pay a fine of Rs.1,000/-

Additional Judicial in default simple imprisonment for Magistrate of First Class, two months for the offence under Anantapuram, Section 224 IPC. The fine amount dt.09.06.2015. was not paid and the petitioner was released after the expiry of the sentence on 04.11.2022.

3 C.C.No.220/2016, Sentenced to undergo simple Additional Judicial imprisonment for one month for the Magistrate of First Class, offence under Section 188 IPC and Piler, dt.29.09.2016 also sentenced to undergo simple imprisonment for two years for the offence under Section 224 IPC. This case commences from 04.11.2022.

(b) The said Reddy Bhaskar got remission and was released

from the life sentence. Apart from the life conviction, the

convictions in the above three cases are also deemed to have

been completed, if those convictions run concurrently, as per

Section 427(2) Cr.P.C. However, the 2 nd respondent had issued

a Certificate dt.05.11.2022, stating that the life convict has been

detained as he was sentenced to undergo simple imprisonment

for one month for the offence under Section 188 IPC and also

sentenced to undergo simple imprisonment for two years for the

offence under Section 224 IPC in C.C.No.220 of 2016 on the file

of Additional Judicial Magistrate of First Class, Piler,

dt.29.09.2016 and as there was no mention about running of

sentences concurrently along with the life imprisonment. It is

the case of the petitioner that the life convict is entitled to be

released, and his detention in the Prison is illegal and violative of

Articles 14, 20 and 21 of the Constitution of India. Hence, the

petitioner moved this habeas corpus petition, seeking redressal

under Article 226 of the Constitution of India and for direction to

the 2nd respondent to produce the life convict - P.Reddy Bhaskar

before this Court and for his release forthwith after declaring

that his detention in the Prison is illegal.

3. (a) The 2nd respondent filed a counter affidavit, contending

inter alia that the life convict Pujari Reddy Bhaskar was

convicted and sentenced to life imprisonment and to pay a fine

of Rs.1,000/- and in default of payment of the fine amount, to

suffer simple imprisonment for one month for the offence under

Section 302 IPC on the file of the Court of VI Additional District

& Sessions Judge, Tirupati in Sessions Case No.139 of 2006,

dated 19.12.2006. The fine amount was paid on 19.12.2006

and he was detained in the Prison from 23.12.2006. He

preferred an appeal against his conviction in Criminal Appeal

No.1 of 2017 before Hon'ble High Court of Andhra Pradesh,

Hyderabad, and the said appeal was dismissed on 19.04.2010

confirming the judgment passed by the lower Court.

(b) It is further contended that the said life convict was

convicted in three other cases out of which in two cases, he

attempted to escape from the custody in which he was lawfully

detained for any such offences, in which he got conviction as

follows:

S.No. Case No., Court and Sentence details Warrant Date

1. C.C.No.260/2006, Sentenced to undergo simple Judicial Magistrate of imprisonment for one year and pay a First Class, Piler, fine of Rs.500/- in default simple dt.22.08.2007 imprisonment for one month for the offence under Section 365 IPC. The fine amount was paid and the petitioner was released after expiry of sentence on 04.09.2022.

2 C.C.No.495/2014, Sentenced to pay a fine of Rs.1,000/-

Additional Judicial in default simple imprisonment for Magistrate of First Class, two months for the offence under Anantapuram, Section 224 IPC. The fine amount dt.09.06.2015. was not paid and the petitioner was released after the expiry of the sentence on 04.11.2022.

                                     This     case     commences       from
                                     04.11.2022.

concurrent with other convictions by the Hon'ble Courts and

therefore, all the sentences imposed against the life convict shall

run consecutively and Section 427(2) Cr.P.C is not applicable as

two subsequent convictions are in respect of escape from the

custody in which he was lawfully detained. It is further

contended that he brought to the notice of this Court that the

Hon'ble High Court of Karnataka, Kalaburagi Bench in

Crl.R.P.No.200077 of 2021 made an observation in respect of

Section 426 Cr.P.C which dealt with the sentence on escape

from any custody in which he is lawfully detained for any such

offences and Section 427 Cr.P.C which deals with the sentence

on offender already sentenced for another offence in Paragraphs

15 & 16 as below:

"15. Having read both the Sections in conjointly, Section 427 of Cr.P.C., discloses with regard to sentence on offender already sentenced for another offence. But in the case on hand, it has to be noted that he was already been convicted for an offence punishable under Section 302 of IPC and admittedly he was undergoing sentence and no doubt Section 427(2) says that, when a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence. Having read Section 427(2) of Cr.P.C., it is clear that the subsequent conviction and sentence shall run concurrently with

such previous sentence. But there is a separate proviso under Section 426 of Cr.P.C., with regard to sentence on escaped convict when to take effect.

16. Having read Section 426(1) of Cr.P.C., it is clear that when a person is on sentence of death, imprisonment for life or fine is passed under this Code on an escaped convict, such sentence shall, subject to the provisions contained, take effect immediately. But sub- section (2) of Section 426 of Cr.P.C., is clear that when a sentence of imprisonment for a term is passed under this Code on an escaped convict, if such sentence is severer in kind than the sentence which such convict was undergoing when he escaped, the new sentence shall take effect immediately. But here is a case that sentence is simple imprisonment and it is sentenced to undergo imprisonment for six months, which is clearly mentioned it should run separately and also he has to undergo the unexpired portion of remaining sentence which he had already been convicted. Hence, the Trial Court has made it clear that it should be separate sentence other than the sentence which he has to undergo in respect of the earlier sentence. When a sentence of imprisonment for a term is passed under the code on an escaped convict, Section 426(2)(a) Cr.P.C., is applicable and the Court has to take note of explicit provisions made in respect of sentence on escaped convict and made it clear which has to take effect immediately and also Section 426(2)(b) is clear that if such sentence is not severer in kind than the sentence which shall convict was undergoing when he escaped, the new sentence shall take effect after he has suffered imprisonment for a further period equal to that which, at the time of his escape, remained unexpired of his former sentence. In the case on hand, the imprisonment is for a period of six months for the offence under Section 58 of the Karnataka Prisons Act, 1963 and the earlier sentence is rigorous imprisonment for life. Hence, Section 426(2)(b) is applicable to the facts of the case on hand."

(d) It is, therefore, contended that the sentence awarded in

the above cases shall not be made concurrent under Section

427(2) Cr.P.C with the previous life sentence, but it shall be

made in accordance with Section 426(2) Cr.P.C only.

(e) It is further contended that the Director General of Prisons

and Correctional Services had issued guidelines vide Memo

No.RC-2/74/2021, dated 14.08.2022 wherein it is specifically

mentioned in Para 2(iv) regarding the cases convicted under

Section 224 IPC as follows:

"iv. They are also requested that the prisoners who are convicted under Section 224 IPC shall be released on completion of the sentence awarded under this section, starts after the Original Sentence."

(f) It is further contended that the Government of A.P had

given the benefit of special remission and released the life

convicts in G.O.Ms.No.121 Home (Parole & HRC) Department,

dated 14.08.2022. The sentence calculation is detailed below:

Date of commencement of                     16.08.2022
sentence
The sentence awarded in                       2 years
C.C.No.220 of 2016
Date of release                            15.08.2024
Remand period got set off under         One month 15 days
Section 428 Cr.P.C
Actual date of release                      30.06.2024

Therefore, the prisoner has the probability of earning total

remission of a minimum of 130 days and a maximum of 225

days (1/3rd of un-expired portion of the sentence) based on his

good conduct and work done by him. Hence, the prisoner will be

released as per the remissions Rules detailed above. Therefore,

the petition is liable to be dismissed.

4. Heard the learned counsel for the petitioner and the

learned Government Pleader for Home, for the respondent-State.

Perused the record.

5. Learned counsel for the life convict would submit that the

interpretation given by the Superintendent, Central Prison,

Kadapa, is incorrect because, when a person is sentenced to

imprisonment for life, the said sentence is for the whole of the

remaining period of the convict's natural life and the question of

any convict serving the other sentences after the expiry of the

sentence of life imprisonment is physically impossible and

therefore, the provisions of Section 427(2) Cr.P.C have to be

given a harmonious and reasonable interpretation so that the

absence of any specific order or direction to the effect that the

other sentences imposed shall run concurrently with the life

sentence awarded in the same case, does not make any

difference. Therefore, the life convict has to be released

forthwith.

6. Learned Government Pleader for Home submitted that the

life convict shall not be given benefit unless he carries out the

sentence for one month for the offence under Section 188 IPC

and two years for the offence under Section 224 IPC imposed in

C.C.No.220 of 2016 on the file of Additional Judicial Magistrate of

First Class, Piler. Hence, claiming benefit under Section 427(2)

Cr.P.C is not permissible unless he undergoes the sentence

under Section 188 IPC and Section 224 IPC and the petition is

liable to be dismissed.

7. Now the joint for determination is:

"Whether the subsequent convictions imposed against the life convict - P.Reddy Bhaskar are to run consecutively or concurrently?"

POINT:

8. P.Reddy Bhaskar was sentenced to undergo life

imprisonment and to pay a fine of Rs.1,000/- and in default of

payment of the fine amount, simple imprisonment for one month

for the offence under Section 302 IPC by the VI Additional

District & Sessions Judge, Tirupati in Sessions Case No.139 of

2006 on 19.12.2006. During the currency of the sentence of the

detenue, the Government had issued G.O.Ms.No.121 Home

(Paroles & HRC) Department, dated 14.08.2022, granting

remission of the unexpired residual sentence in respect of

conviction. The Superintendent, Central Prison, Kadapa did not,

however, release the convicted prisoner and issued a Certificate

dt.05.11.2022, stating that the convict is detained and

sentenced to undergo simple imprisonment for one month for

the offence under Section 188 IPC and also sentenced to

undergo simple imprisonment for two years for the offence under

Section 224 IPC in C.C.No.220 of 2016 on the file of the

Additional Judicial Magistrate of First Class, Piler, dt.29.09.2016

and the said sentence commences from 04.11.2022 and both the

sentences run concurrently.

9. The petitioner, who is the brother-in-law of the convicted

prisoner filed the present writ petition of habeas corpus under

Section 226 of the Constitution of India for a direction to the

respondents to produce the convicted prisoner, P.Reddy Bhaskar

from the Central Prison, Kadapa, before this Court and to

release him forthwith declaring that his further detention is

illegal.

10. The interpretation sought to be given by the 2nd

respondent in the above-referred Certificate is incorrect, because

when a person is sentenced to undergo imprisonment for life,

the said sentence is for the whole of the remaining period of the

convict's natural life and the question of any convict serving the

other sentences after the expiry of the sentence of life

imprisonment is physically impossible and therefore, the

provisions of Section 427(2) Cr.P.C have to be given a

harmonious and reasonable interpretation in the absence of any

specific order or direction to the effect that the other sentences

imposed shall not run concurrently with the life sentence

awarded. At this juncture, it is relevant to refer Section 427

Cr.P.C.

427. Sentence on offender already sentenced for another offence.--(1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or

imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.

11. The learned counsel for the petitioner relied on the

decision of this Court in Itineni Linganna Vs. Superintendent,

Central Jail, Warangal and another1 wherein it is held as

follows:

"19. In the present case, the convict prisoner is admittedly not a habitual offender or is there any material placed before the Court to show that he is involved in any other offence. He was in judicial custody from 11.11.1996 to 17.2.1997 as seen from the copy of the warrant issued by the trial Court. On conviction he was again committed to prison by the said warrant on 10.10.2001 and ever since he is undergoing sentence. Thus he has been in jail for more than eight years. He was granted remission of the residuary period of sentence of imprisonment for life by virtue of G.O. Ms. No. 415. Under those circumstances, it is neither just nor proper to deny him the benefit of the said remission on the ground that he is required to undergo other sentences imposed for the lesser offences.

20. In the circumstances, it is held that ends of justice in the present case would be met by giving a direction that the sentences imposed for the offences under Sections 451, 323, 449 and 364 all read with Section 34 IPC, which were already directed to run concurrently shall also run concurrently with the sentence of imprisonment for life imposed for the offence under Section 302 read with 34 IPC, by invoking inherent powers of the Court under Section 482 Cr.PC.

2009 SCC OnLine AP 1060

21. Accordingly, Criminal Petition No. 9380 of 2009 is allowed issuing direction as stated above.

22. WP No. 22286 of 2009: The question involved in this writ petition is connected with the result in Criminal Petition No. 9380 of 2009. It is the grievance in the present writ petition that the father of the petitioner, by name Itinera Pedda Bhumaiah (CT No. 6770), was not given the benefit under G.O. Ms. No. 415 Home (Prisons-C) Department, dated 1.10.2009, and he was not released on the ground that he was convicted for different offences including for the offence under Section 302 read with Section 34 of IPC. But, there was no direction to the effect that all the sentences, including the sentence for the offence under Section 302 of IPC though, inferior were not directed to run concurrently. It appears this is the only ground for the respondents to deny the benefit under G.O. Ms. No. 415 to the petitioner. Now, in view of our decision in Criminal Petition No. 9380 of 2009 that all the sentences for various offences were directed to run concurrently, the respondents are directed to consider the case of the petitioner regarding the application of the benefit of remission available under G.O. Ms. No. 415 and pass appropriate orders."

12. A reading of Sub-Section (2) of Section 427 of the Code of

Criminal Procedure makes it abundantly clear that if a person

already undergoing a sentence of imprisonment for life is

sentenced on a subsequent conviction to the imprisonment for a

term, or imprisonment for life, the subsequent sentence shall

run concurrently with such previous sentence. The

Superintendent of Jails, Central Prison, Kadapa on 05.11.2022

issued a certificate which reads as follows:

"This is to certify that the Convict Prisoner No.5357, P.Reddy Bhaskar, S/o.P.Venkataiah, R/o.Nuthanakalva Village, K.V.Palli Mandal, Chittoor District was convicted and sentenced to undergo Life Imprisonment and to pay a fine of Rs.1,000/- IDSI for (01) month for the offence U/s.302 IPC by the Hon'ble VI Additional District and Sessions Judge (FTC), Tirupathi in S.C.No.139/2006, dated 19.12.2006.

The above said Convict Prisoner was released in S.C.No.139/2006 on 15.08.2022 on awarded of Special Remission duly reduction of sentence by the Government of Andhra Pradesh vide G.O.Ms.No.121 Home (Paroles & HRC) Dept., dated 14.08.2022.

Other conviction cases details:

1. He was convicted and sentenced to undergo SI for (01) year and to pay a fine of Rs.500- 00 IDSI for (01) month for the offence U/s.224 IPC in C.C.No.260/2006 on the file of the Hon'ble Judicial Magistrate of First Class, Piler, dated 22.08.2007, fine amount paid and the prisoner was released in this case after expiry of sentence on 04.09.2022.

2. He was convicted and sentenced to pay a fine of Rs.1000-00 IDSI for (02) months for the offence U/s.224 IPC in C.C.No.495/2014 on the file of Hon'ble Additional Judicial Magistrate of First Class, Ananthapuramu, dated 09.06.2015, fine amount not paid and the prisoner was released in this case after expiry of sentence on 04.11.2022.

Detained in following case:

1. He was convicted and sentenced to undergo SI for (01) month for the offence U/s.188 IPC and also sentenced to undergo SI for (02) years for the offence U/s.224 IPC in C.C.No.220/2016 on the file of the Hon'ble Additional Judicial Magistrate of First Class, Piler, dated 29.09.2016. Both the sentences shall run concurrently. This case commence from 04.11.2022."

13. In the considered opinion of this Court, the version of the

Superintendent of Jails, Central Prison, Kadapa which is

impugned in the present Writ Petition, is not in accordance with

the language employed in Sub-Section (2) of Section 427 of Code

of Criminal Procedure. Though an attempt is made by the

learned Government Pleader to justify the impugned action, by

placing reliance on the judgment of the Karnataka High Court in

Criminal Revision Petition No.200077 of 2021, in the considered

opinion of this Court, the said judgment would not render any

assistance to the case of the respondents, in view of the clear

language of Sub-Section (2) of Section 427 of Code of Criminal

Procedure.