Section 427 CrPC - Sentence Of Escaped Life Convict Will Not Run Concurrently : Karnataka High Court

Justice H P Sandesh said,

"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."

Further, in the facts of the case, the Bench observed, 

"The petitioner has not obeyed the order of releasing him on parole and he has mis-used his release on parole and that too for a period of 5½ years and question of taking lenience in respect of the said petitioner cannot be entertained. If such lenience is shown for the accused/petitioner, who did not turn up for a period of 5½ years to undergo a sentence of rigorous imprisonment is considered for lenience that would be mockery of justice."

Case Background:

Convict Bandenawaj had approached the court challenging the order dated 15.03.2021 passed by the III Additional Sessions Judge, Vijayapura whereby it dismissed his appeal on account of delay and confirmed the conviction of six months simple imprisonment under section 58 of the Karnataka Prisons Act.

The accused was convicted on charges of murder and sentenced to life imprisonment in the year 2005. He was granted parole leave for a period of 15 days in 2011. However, he did not return and after 5 ½ years he was arrested. Later he was tried under section 58 of the Karnataka Prisons Act, wherein he pleaded guilty and was convicted.

The court clarified that the six month period of simple imprisonment would commence after the petitioner would have completed his sentence of life imprisonment. The said order was challenged before the Sessions Judge and while filing the appeal, there was a delay of 960 days and the appeal was dismissed.

Petitioners Submissions:

Advocate R S Lagali appearing for the petitioner had contended that the trial Judge order is against the settled proposition of law and the stipulation to undergo sentence after completion of the imprisonment for life is harsh.

The counsel referred to Section 427(2) of CrPC), and relied on Apex Court judgement in the case of Jitendra Alias Kalla v. State of Govt. of NCT of Delhi reported in AIR 2018 SC 5253, wherein it was held that when the sentence of life imprisonment was ordered in respect of two offences of murder, there is no question of awarding consecutive sentence and sentences shall run concurrently.

Prosecution Opposed the plea:

Advocate Gururaj V Hasilkar submitted that Section 427(2) of Cr.P.C, is not applicable since he has been escaped from undergoing sentence and that too he was absconded for a period of 5½ years when he was released on parole. "Section 426 applies and not Section 427(2) of Cr.P.C," it was argued.

Court Findings:

The court referred to section 427 and 426 of CrPC and said, "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."

It added that, "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."

Accordingly it held that, "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."

Further the court noted that the petitioner was imprisoned for a life for the offence of murder and the said punishment was rigorous imprisonment instead of returning after the parole period of 15 days he escaped for a period of 5½ years and the period of 5½ years is not a short period. It said, "When such being the conduct of the petitioner herein, the proviso of Section 427(2) of Cr.P.C, cannot be invoked as contended by the learned counsel for the petitioner and the conduct of the petitioner has to be taken note of while considering the case on hand."

The court relied on Supreme Court Judgement in the case of Mohd Zahid v. State Through NCB, and junked the contention of the petitioner that the conduct of the petitioner cannot be looked into by the trial court and the discretion also cannot be exercised by it when holding the sentence to run consecutively.

It said, "The discretion has to be exercised judiciously depending upon the nature of offence or the offences committed and facts in the situation. In the case on hand, the petitioner herein committed heinous offence of murder and undergoing the rigorous life imprisonment. Both the offences are distinct and cases have been decided by the different judgments. Hence, the petitioner cannot get the benefit under Section 427 of Cr.P.C."

Case Title: Bandenawaj v. The State Of Karnataka

Citation: 2022 LiveLaw (Kar) 6

Case No: Crl.Rp.No.200077/2021

Date Of Order: 23rd Day Of December 2021

Appearance: Advocate R.S.Lagali For Petitioner; Advocate Gururaj V. Hasilkar For Respondent.

Click Here To Read/Download Order