For the purpose of S. 303 IPC, a person must be actually and irrevocably serving a life sentence at the time of the second offence to be punished with death under S. 303 IPC.

( 1 ) 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, Crlpc, 1898, continues to "being under sentence of imprisonment for life" for the purpose of S. 303, IPC. The appellant had earlier been convicted on July 26, 1961, by the High court of Mysore under S. 302 IPC and sentenced to imprisonment for life in an appeal by the State against his acquittal.

( 2 ) THE earlier murder was on Decr 3, 1959. The Stale Govt in exercise of its power under S. 401 Crlpc conditionally remitted his sentence on febry 8, 1972. Thus he was conditionally released from Jail on Febry 8, 1972. Tragically enough, on Jany 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 IPC by the Sessions judge, Kolar, on Novr 7, 1974 and sentenced to death under S. 303, ipc. On an appeal to the High Court by the appellant which was heard along with the reference for confirmation, the sentence of dsath under s. 303 IPC was confirmed on Novr 19, 1975. Hence this appeal by special leave limited to the question of applicability of S. 303 IPC and the sentence. 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 IPC is attracted.

( 3 ) THE remission of the sentence in this case is by the State of Karnataka in exercise of its statutory power under S. 401 Crlpc. 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 dissolule or evil life.

( 4 ) 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 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. Shortly stated, was the appellant under sentence of imprisonment for life on the date of occurrence of the second murder on Jany 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 IPC. 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 IPC. The Court will be helpless in such an event.

( 5 ) THE Sessions Judge as well as the High Court held that S. 303 IPC was applicable as this was a case of conditional remission under S. 401, crlpc and the second murder was committed during the unexpired portion of the sentence of imprisonment for life. 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. The fast 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 Govt under S. 403 Crlpc, and the person is released, such person must still be deemed to be under sentence Of transportation for life in spite of the fact that he is not actually under sentence or in a penal settlement".

( 6 ) THE next decision is from the Punjab High Court in Sohan Singh v. The State