Judgment

GOSWAMI, J. - The short question in this appeal by special leave is whether a person sentenced to imprisonment for life and later released by the Government by remission of the sentence under S. 401, Cr. P. C., 1898, continues to "being under sentence of imprisonment for life" for the purpose of S. 303, I. P. C.

2. The appellant had earlier 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 an appeal by the State against his acquittal.

3. The earlier murder was on December 3, 1959. The State Government in exercise of its power under S. 401, Cr. P. C. conditionally remitted his sentence on February 8, 1972. Thus he was conditionally released from jail on February 8, 1972. Tragically enough, on January 27, 1973, the appellant got himself involved in the present murder charge even before the expiry of the first year of his release, He was convicted under S. 302 and S. 303, I. P. C. by the Sessions Judge, Kolar, on November 7, 1974 and sentenced to death under S. 303, I. P. C. On an appeal to the High Court by the appellant which was heard along with the reference for confirmation, the sentence of death under S. 303, I. P. C. was confirmed on November 19, 1975. Hence this appeal by special leave limited to the question of applicability of S. 303, I. P. C. and the sentence.

4. The earlier sentence of imprisonment for life became final and inexorable 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. is attracted. (See Dilip Kumar Sharma v. State of Madhya Pradesh, (1976) 2 SCR 289.

5. The remission of the sentence in this case is by the State of Karnataka in exercise of its statutory power under S. 401, Cr. P. C. The power has been exercised, in the instant case, laying down certain conditions which the convict had accepted. The two conditions were that, during the unexpired period of his sentence conditionally remitted, (1) he will not commit any offence punishable by any law in Mysore and (2) he will not in any way associate with persons known to be of bad character or lead a dissolute or evil life.

6. The portion of the remitted sentence, in this case, was a period of four years and four months after the appellant had undergone over 15 1/2 years of his sentence including a little over five years remission earned by him in jail. In the normal course, in absence of the order of remission, the appellant would have been released from jail on June 9, 1976.

7. Shortly stated, was the appellant under sentence of imprisonment for life on the date of occurrence of the second murder on January 27, 1973? If he was continuing to be under the sentence of imprisonment for life on that day the court cannot come to his rescue by exercising discretionary clemency in favour of the alternative sentence. Then the only sentence the court has power and is obliged to impose, and no other, is the sentence of death. That is the true effect of S. 303, I. P. C. The fact that the accused is of the age of 73 years will be of no consequence once he is found guilty under S. 303, I. P. C. The court will be helpless in such an event.

8. The Sessions Judge as well as the High Court held that S. 303, I. P. C. was applicable as this was a case of conditional remission under S. 401, Cr. P. C. and the second murder was committed during the unexpired portion of the sentence of imprisonment for life.

9. It is the correctness of the above view of the law that falls for consideration before us. That view receives support from the following decisions cited at the bar.

10. The first decision is from the Rangoon High Court in Po Kun v. The King, AIR 1939 Rang 124. It was held in that case that-

"if the sentence of transportation for life passed on a person is conditionally remitted by the Government under S. 403, Cr. P. C., and the person is released, such person must still be deemed to be under sentence of transportation f