D —General provisions regarding execution
425. Who may issue warrant.
Every
warrant for the execution of a sentence may be issued either by the Judge or
Magistrate
who
passed the sentence, or by his successor-in-officer.
426. Sentence on escaped convict when to take effect -
(1)
When a sentence of death, imprisonment for life or fine is passed under this
Code on an
escaped
convict, such sentence shall, subject to the provisions hereinbefore contained,
take effect
immediately.
(2)
When a sentence of imprisonment for a term is passed under this Code on an
escaped
convict,—
(a)
if such sentence is severer in kind than the sentence which such convict was
undergoing
when he escaped, the new sentence shall take effect immediately;
(b)
if such sentence is not severer in kind than the sentence which such 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.
(3)
For the purposes of sub-section (2), a sentence of rigorous imprisonment shall
be deemed to
be
severer in kind than a sentence of simple imprisonment.
427. Sentence on offender already sentenced for another offence.
(1)
When a person already undergoing a sentence of imprisonment is sentenced on a
subsequent
conviction
to imprisonment or imprisonment for life, such imprisonment or imprisonment for
life
shall
commence at the expiration of the imprisonment to which he has been previously
sentenced,
unless the Court directs that the subsequent sentence shall run concurrently
with such
previous
sentence:
Provided
that where a person who has been sentenced to imprisonment by an order under
section
122 in default of furnishing security is, whilst undergoing such sentence,
sentenced to
imprisonment
for an offence committed prior to the making of such order, the latter sentence
shall
commence immediately.
(2)
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.
STATE AMENDMENT
Tamil Nadu:
In
section 247 after sub-section (1), the following sub-section shall be inserted,
namely:—
"(1A)
Notwithstanding anything contained in sub-section (1), when a person already
undergoing
a
sentence of imprisonment is sentenced on a subsequent conviction to
imprisonment under subsection
(2)
of section 380 of the Indian Penal Code (Central Act XLV of 1860), for an
offence of
theft
of any idol or icon in any building used as a place of worship, such
imprisonment shall
commence
at the expiration of the imprisonment to which he has been previously
sentenced".
[Vide Tamil Nadu Act 28 of 1993, sec.
6.
428. Period of detention undergone by the accused to be set off
against the sentence of
imprisonment.
Where
an accused person has, on conviction, been sentenced to imprisonment for a term
, not
being
imprisonment in default of payment of fine, the period of detention, if any,
undergone by
him
during the investigation, inquiry or trial of the same case and before the date
of such
conviction
shall be set off against the term of imprisonment imposed on him on such
conviction,
and
the liability of such person to undergo imprisonment on such conviction shall
be restricted to
the
remainder, if any, of the term of imprisonment imposed on him.
Comments
(i)
Benefit of set off under section 428 is not available to life convicts; Kartar Singh v. State of
Haryana, AIR 1982 SC 1433.
(ii)
The period of detention referred to in section 428 is of the accused person
during the
investigation;
Ram Sarup v. Union of India, 1988 Cr
LJ 417: AIR 1988 SC 283.
429. Saving.
(1)
Nothing in section 426 or section 427 shall be held to excuse any person from
any part of the
punishment
to which he is liable upon his former or subsequent conviction.
(2)
When an award of imprisonment in default of payment of a fine is annexed to a
substantive
sentence
of imprisonment and the person undergoing the sentence is after its execution
to
undergo
a further substantive sentence or further substantive sentences of
imprisonment, effect
shall
not be given to the award of imprisonment in default of payment of the fine
until the person
has
undergone the further sentence or sentences.
430. Return of warrant on execution of sentence.
When
a sentence has been fully executed, the officer executing it shall return the
warrant to the
Court
from which it is issued, with an endorsement under his hand certifying the
manner in
which
the sentence has been executed.
431. Money ordered to be paid recoverable as a fine.
Any
money (other than a fine) payable by virtue of any order made under this Code,
and the
method
of recovery of which is not otherwise expressly provided for, shall be
recoverable as if it
were
a fine:
Provided
that section 421 shall, in its application to an order under section 359, by
virtue of this
section,
be construed as if in the proviso to sub-section (1) of section 421, after the
words and
figures
"under section 357", the words and figures "or an order for
payment of costs under
section
359" had been inserted.
(2)
Whenever an application is made to the appropriate Government for the
suspension or
remission
of a sentence, the appropriate Government may require the presiding Judge of
the
Court
before or by which the conviction was had or confirmed, to state his opinion as
to whether
the
application should be granted or refused, together with his reasons for such
opinion and also
to
forward with the statement of such opinion a certified copy of the record of
the trial or of such
record
thereof as exists.
(3)
If any condition on which a sentence has been suspended or remitted is, in the
opinion of the
appropriate
Government, not fulfilled, the appropriate Government may cancel the suspension
or
remission,
and thereupon the person in whose favour the sentence has been suspended or
remitted
may, if at large, be arrested by any police officer, without warrant and
remanded to
undergo
the unexpired portion of the sentence.
(4)
The condition on which a sentence is suspended or remitted under this section
may be one to
be
fulfilled by the person in whose favour the sentence is suspended or remitted,
or one
independent
of his will (5) The appropriate Government may, by general rules or special
orders,
give
directions as to the suspension of sentences and the conditions on which
petitions should be
presented
and dealt with:
Provided
that in the case of any sentence (other than a sentence of fine ) passed on a
male
person
above the age of eighteen years, no such petition by the person sentenced or by
any other
person
on his behalf shall be entertained, unless the person sentenced is in jail,
and,—
(a)
where such petition is made by the person sentenced, it is presented through
the
officer
in charge of the jail; or
(b)
where such petition is made by any other person, it contains a declaration that
the
person
sentenced is in jail.
(6)
The provisions of the above sub-sections shall also apply to any order passed
by a Criminal
Court
under any section of this Code or of any other law which restricts the liberty
of any person
or
imposes any liability upon him or his property.
(7)
In this section and in section 433, the expression "appropriate
Government" means,—
(a)
in cases where the sentence is for an offence against, or the order referred to
in sub-section
(6)
is passed under, any law relating to a matter to which the executive power of
the Union
extends,
the Central Government;
(b)
in other cases the Government of the State within which the offender is
sentenced
or the said order is passed.
Comments
When
accused is a primary school teacher with no bad antecedent and amount robbed by
him
was
a trivial amount and there was resistance in his arrest on any attempt to
conceal his identity,
the
Government may remit or reduce sentence in exercise of power of clemency; Ram Shankar v.
State of Madhya Pradesh, AIR, 1981
SC 644: (1981) Cr LJ 162: (1981) SCC (Cr) 378.
433. Power to commute sentence.
The
appropriate Government may, without the consent of the person sentenced
commute—
(a)
a sentence of death, for any other punishment provided by the Indian Penal Code
(45
of
1860);
(b)
a sentence of imprisonment for life, for imprisonment for a term not exceeding
fourteen
years or for fine;
(c)
a sentence of rigorous imprisonment for simple imprisonment for any term to
which
that
person might have been sentenced, or for fine;
(d)
a sentence of simple imprisonment, for fine.
Comments
Even
where Supreme Court upheld validity of section 433, Government cannot reduce or
commute
sentence to less than 14 years for weighty reasons as the crime was serious;
Shidagauda Nilgappa Ghandakar v.
State of Karnataka,
AIR 1981 SC 764: (1981) Cr LJ 324:
(1981)
SCC (Cr) 163: (1981) Cr LR (SC) 112.
433A. Restriction on powers of remission or commutation in certain
cases.
Notwithstanding
anything contained in section 432, where a sentence of imprisonment for life is
imposed
on conviction of a person for an offence for which death is one of the
punishment
provided
by laws or where a sentence of death imposed on a person has been commuted
under
section
433 into one of imprisonment for life, such person shall not be released from
prison
unless
he had served at least fourteen years of imprisonment.
Comments
To
read down or interpret section 433A of the Code with the aid of the changes
proposed by the
Indian
Penal Code (Amendment ) Bill would tantamount to hearing the provisions of the
said bill
as
forming part of the Indian Penal Code which is clearly impermissible. To put
such an
interpretation
with the aid of such extrinsic material would result in violence to the plain
language
of section 433A of the Code; Ashok
Kumar v. Union of India, 1991 Cr LJ 2483
(SC)
434. Concurrent power of Central Government in case of death
sentences.
The
powers conferred by sections 432 and 433 upon the State Government may, in the
case of
sentences
of death, also be exercised by the Central Government.
435. State Government to act after consultation with Central
Government in certain cases.
(1)
The powers conferred by sections 432 and 433 upon the State Government to remit
or
commute
a sentence, in any case where the sentence is for an offence—
(a)
which was investigated by the Delhi Special Police Establishment constituted
under
the
Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other
agency
empowered
to make investigation into an offence under any Central Act other than this
Code,
or
(b)
which involved the misappropriation or destruction of, or damage to, any property
belonging
to the Central Government, or
(c)
which was committed by a person in the service of the Central Government, while
acting
or purporting to act in the discharge of his official duty.
shall
not be exercised by the State Government except after consultation with the
Central
Government.
