'Already Undergoing Sentence' Under Section 427 CrPC Means Physical Detention Pursuant To Execution Of Warrant Of Sentence : Madras HC [Read Order]

In a significant ruling, the Madras High Court interpreted the word "already undergoing a sentence" under Section 427 of the Code of Criminal Procedure, with an attempt to balance it with the fundamental right to personal liberty under Article 21 of the Constitution of India.Section 427 CrPC deals with the situations where an offender already undergoing a sentence is sentenced for another offence. Section 427(1) states that the subsequent sentence will be ordinarily consecutive to the previous one - meaning that the subsequent sentence will commence only after the expiry of the previous sentence. However, the sentencing court can specify that the subsequent sentence will run concurrently with the previous one. Unless the sentencing court specifies so, the subsequent sentence will be deemed as "consecutive".In the present case, Justice G R Swaminathan of Madurai Bench of the HC was dealing with a petition filed by a 60-year old man under Section 482 CrPC seeking a direction for concurrent running of sentences in 5 cases. All the sentences were pronounced on the same day, in respect of offences of theft and house breaking committed against five optical shops on the same date. He was sentenced to three years simple imprisonment and to pay a fine of Rs.5,000/- for each of the offences in each caseThe Magistrate Court, while delivering the sentence, did not specify if the sentences will run concurrently. This would have meant that the sentences will run consecutively, resulting in a fifteen year term in prison altogether.The issue before the Court was whether the situation will attract Section 427(1) at all and whether "consecutiveness" will automatically kick in."The question is whenever the sentencing court failed to pass any direction in terms of Section 427 of Cr.Pc, will the effect of consecutiveness kick in automatically ?", the court said. Emphasizing on the words "already undergoing a sentence of imprisonment," the bench of Justice GR Swaminathan has held that "for Section 427 (1) of Cr.Pc to apply, the condition precedent must be that the person convicted and sentenced on the subsequent occasion was already undergoing a sentence of imprisonment in the previous case. If he was not so undergoing a sentence in the previous case, Section 427 (1) will not apply at all." Next, the Court examined the scope of the phrase "already undergoing sentence". The Court held that a person can be said to "already undergoing sentence" only if he is under physical detention in execution of a warrant for sentence under Section 425 CrPC."The whole issue turns on the expression "already undergoing a sentence of imprisonment". "Already" means "before a particular time in the past or before now". "Undergoing" means "experiencing something" (Oxford Advanced Learner's Dictionary, New 9th Edition). One cannot be said to be undergoing a sentence of imprisonment unless warrant for its execution had been issued under Section 425 of Cr.Pc and it had taken effect. Only if the convict had been physically detained pursuant to such warrant, he can be said to be undergoing a sentence of imprisonment and not otherwise."The Court added :"Thus, for Section 427 (1) of Cr.Pc to apply, the condition precedent must be that the person convicted and sentenced on the subsequent occasion was already undergoing a sentence of imprisonment in the previous case.""If he was not so undergoing a sentence in the previous case, Section 427 (1) will not apply at all. I must emphasize that Section 427 of Cr.PC does not talk of a person already sentenced to a term of imprisonment being sentenced on a subsequent conviction to a term of imprisonment. The legislature has carefully added the words "already undergoing". This is significant. No word occurring in a statutory provision can be ignored. Each expression has to be given its full effect".Provision has to be interpreted in the light of Article 21The Court observed that the serious consequence resulting from the omission of the court to specify about the nature of sentence under Section 427 has a serious implication on the right to personal liberty under Article 21."Suppose on a single day, an accused is found guilty in more than one case and sentenced. It is for the court concerned to clarify as to when the sentence in the subsequent case will take effect. If the court is silent on this aspect, the sentences will start running from the date when they were given effect to. Section 427 (1) has prescribed the manner in which the sentence will run. It states that if the court is silent and had not given any direction that the sentence given in the subsequent case will run concurrently, it will run only consecutively. Such an adverse consequence emanating from the silence of the court has a serious implication for personal liberty. The Constitution attaches a very high value to personal liberty. Therefore, such a provision must be construed in a manner that is at once fair, just and reasonable. Only by...

'Already Undergoing Sentence' Under Section 427 CrPC Means Physical Detention Pursuant To Execution Of Warrant Of Sentence : Madras HC [Read Order]

Akshita Saxena

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