LexSHAIK ABDUL AZEEZ versus STATE OF KARNATAKA
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SHAIK ABDUL AZEEZ v. STATE OF KARNATAKA March 28, 1977 393 [Y. V. CHANDRACHUD, P. K. GOSWAMI AND P. N. SH!NGHAL, JJ.] Pencd Code (Act 45 of 1860), 1860, section 303-Death Sentence for murder by life convici-Whether a p·erson sent,enced to imprisonment for life and later released by the Government by remission of sentence uls. 401 of the Cr. P.C., .1898 (1973 Code, s. 432) continues to "being under sentence of ifnprisonnient jor life" for the purpose of s. 303 I. P. C.-Cri1ninal Procedure Code, 1898, sec. 401 (1973 Code, section 432)-Scope of. A B Section 303 I.P.C. lays down that "whoever being under sentence of im- ,prisonment for life commits murder shall be punislied with death". The C appellant, for the offence of murder committed on December 3, 1959, had been convicted on July 26, 1961, by the High Court of Mysore under s. 302 I.P.C. and sentenced to imprisonment for life in appeal by the State against his acquittal . . The State Government, in exercise of its power under s. 402 Cr. P. C. condi- .tionally remitted his sentence on February 8, 1972 and he was, therefore, con- .ditionally released from jail on February 8, 1972. The two conditions of the .remission were that during the unexpired period of his sentence conditionally .remitted (i) he will not commit any offence punishable by any law in Mysore D .and (ii) he will not in any way associate with persons known to be of bad .character or_ lead a dissolute or immoral life. Even before the expiry of the .first year of his release, the appellant got himself involved on January 27, 1973~ .in another murder charge. He was convicted under s. 302 read with s. 303 .I P. C. by the Sessions Judge, Kolar on November 7, 1974 and sentenced t<> .death under s. 303 I. P. c. On an appeal to the High Court which was heard along with the reference for confirmation, the sentence of death under s. 302 J. P. C. was confirmed on November 19, 1975. It held that s. 303 I. P. C. .was applicable as this was,'a case of conditional remission under s. 401 Cr P. c.. E .and the second murder was committed during the unexpired portion of the sentence of imprisonment for life. This Court while granting the ;:;pecial leave- Jimited it to the question of applicability of s. 303 I. P. C. and the· sentence. Aliowing the appeal parly and modifying the sentence of death to that of .life imprisonment. the Court, , HELD : (1) An accused cannot be urider a sentence of imprisonment for life at the time of commission of the second murder unless- he is actually under- F .going such a sentence or there is legally extant judicially a final sentence which he is bound to serve without the requirement of a separate order to breathe life into the sentence which was otherwise dead on account of remission under s. 401 Cr. P.C. [398 H, 399-AJ (2) The earlier sentence of imprisonment for life became final and inexor- able so far as the judicial process was concerned. It is only when such a sentence is "operative and executable" that s. 303 I.P.C. a attracted. [395-C] Di/ip Kumar Sharma & Ors. State of Madhya Prades_h [1976] (2) SCR 289, referred to. (3 ~ ~ection 303 J.P.C. is applicable only to an accused who on the date of .comm1ss1on of the second offence of murder had earlier committed a murder .~or. ~hich his conviction and sentence of imprisonment for life were beyond 1ud1c1al controversy and operative. [399-A] (4) Unlike in the. case of s. 75. I.P.~., s. 303 I.P.C. does not ccnternplate a mere onhanced pumshment for a convict with a past criminal history for the same· offenc~ Section 303 I.P.C. creates a· most aggregated form of offence whe:n commttted~ by a person undet sentence of in1prisonment for life to be punished only with death, the maximum penalty under the law. The tn1e effec~ G H A B c D E F G H 394 SUPREME COURT REPORTS . [1977] 3 S.C.R. . of s. 303, I.P.C. is that if the accused was continuing to be under the sentence of imprisonment for life on the day of the second murder the court cannot come to his rescue by exercising discretionary clemency in favour of the alternative ,sentence. The· only sentence the court has power and is obliged to impose and no other is the sen~ence of death. [399 B~C] • (5) A person must be actually and irrevocably the lifer beyond the pale of ,judicial controversy at the. time of commission of the second offence of murder .to be vitiated with a penalty of death under s. 303 J.P
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