THE STATE OF ANDHRA PRADESH & ANR versus VIJAYANAGARAM CHINNA REDDAPPA on 28 April 2023

ORDER

Leave granted.

The State of Andhra Pradesh has come up with the above appeal,challenging an order of the Division Bench of the High Court of Andhra

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APradesh issuing a writ of Habeas Corpus directing the Superintendentof the Central Prison, Kadapa to set at liberty, a convict by name P.Reddy Bhaskar (Convict No.5357).

We have heard the learned Standing Counsel for the State ofAndhra Pradesh and Mr. Seshadri Naidu, the learned senior counsel forBthe respondent.

The detenu was prosecuted in Sessions Case No.139/2006 for anoffence under Section 302 Indian Penal Code, 1860 (for short “IPC”)relating to a murder that took place on 27.05.2001. By a judgment dated19.12.2006, the detenu was convicted and sentenced to life imprisonment.CThe conviction and punishment were confirmed by the High Court onappeal and the same has attained finality.

It appears that the detenu escaped from custody twice during hisincarceration, but was apprehended later. It is the case of the State thatthe detenu enjoyed self-attained freedom for about two years pursuantDto the first escape and for about three months pursuant to the secondescape.

It appears that immediately following the conviction for the offenceunder Section 302 IPC, the detenu was also convicted in another case inCase No.260/2006 for an offence of kidnapping under Section 365 IPC.EIn this case, the detenu was convicted and imposed simple imprisonmentfor one year.

By G.O.Ms. No.121 dated 14.08.2022, the Government of AndhraPradesh granted special remission to 175 life convicts on the occasionof the Independence Day. Without giving him any opportunity for a thirdFescape, the Government set him at liberty under the said Governmentorder on 15.08.2022.

Even after the issue of the Government order, the detenu was notreleased from jail on the ground that the sentence of imprisonmentawarded in Case No.260/2006 should start running from the date ofGgrant of remission in the first case. The detenu’s brother-in-law thereforeapproached the High Court by way of a writ of Habeas Corpuscontending that the continued detention of the detenu after the grant ofremission was illegal. The High Court accepted the contention andallowed the writ petition. It is against the said order that State has comeup with the above appeal.H

What is in question in this appeal is an interplay between Sections426 and 427 Cr.P.C. These sections read as follows:

“426. Sentence on escaped convict when to take effect.-(1)When a sentence of death, imprisonment for life or fine ispassed under this Code on an escaped convict, such sentenceshall, subject to the provisions hereinbefore contained, takeeffect immediately.

(2) When a sentence of imprisonment for a term is passedunder this Code on an escaped convict,- (a) if such sentence is severer in kind than the sentence whichsuch convict was undergoing when he escaped, the newsentence shall take effect immediately; (b) if such sentence is not severer in kind than the sentencewhich such convict was undergoing when he escaped, thenew sentence shall take effect after he has sufferedimprisonment for a further period equal to that which, at thetime of his escape, remained unexpired of his former sentence.

(3) For the purposes of sub-section (2), a sentence of rigorousimprisonment shall be deemed to be severer in kind than asentence of simple imprisonment.

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

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

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488SUPREME COURT REPORTS

A(2) When a person already undergoing a sentence ofimprisonment for life is sentenced on a subsequent convictionto imprisonment for a term or imprisonment for life, thesubsequent sentence shall run concurrently with suchprevious sentence.”

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BAt the outset, we must remember that we are dealing with thecase of an escaped convict. Therefore, the case of the detenu wouldobviously be covered by Section 426(2)(b), which deals with case of anescaped convict, already serving a sentence severer in kind, but imposedwith a less severe sentence in respect of a subsequent conviction. Section426(2)(b) Cr.P.C. states that insofar as an escaped convict is concerned,Cthe sentence imposed in the second or subsequent conviction shall takeeffect only after the escaped convict has suffered imprisonment for afurther period equal to that which at the time of escape remainedunexpired of his former sentence.

But insofar as a life convict is concerned, in law, no part of theDsentence remains unexpired. The remission granted by the Governmentto a life convict, cannot be taken to mean that there is some portion ofthe life sentence that remains unexpired in the same sense as in the caseof other convicts. A life sentence is a sentence for life. What remainsunexpired of such a sentence is known only to God (if you believe) andEto the Government, if there is a policy of remission. Therefore, Section426(2)(b) cannot be taken to have included within its fold, the case of alife convict, since in the case of life convict no portion of the sentenceremains unexpired, in the technical sense.

If Section 426(2)(b) Cr.P.C. is out of the picture, then what remainsFis Section 427(2) Cr.P.C. Under Section 427(2) Cr.P.C., the subsequentsentence should run concurrently along with a previous sentence, if aperson already undergoing a sentence of imprisonment for life, issentenced on a subsequent conviction to imprisonment for a term orimprisonment for life.GTherefore, while Section 426 covers the case of an escapedconvict, clause (b) of sub-section (2) thereof creates a conundrum inrespect of life convicts. But Section 427, though does not deal with thecase of an escaped convict, provides enough room for finding out how asentence imposed on a subsequent conviction, in respect of a life convict,should be handled.H

Therefore, the application of Section 427(2) Cr.P.C. by the HighACourt to the case on hand, is perfectly in order and the appeal deservesto be dismissed.

Accordingly, the appeal is dismissed. The detenu shall be set atliberty forthwith.

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Pending application(s), if any, shall stand disposed of.

Divya Pandey(Assisted by : Roopanshi Virang, LCRA)

Appeal dismissed.

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