M.R.A. Ansari, C.J.
1. The petitioners have been convicted by the Sessions Judge, Udhampur, in Criminal Case No. 3 of 1974 for an offence under Section 302, R.P.C. and they have been sentenced to undergo life imprisonment. The Sessions Judge has also referred their case to this Court under Section 374, Criminal P.C. for confirmation of the sentence passed by him. The petitioners have also filed an appeal against the conviction and sentence passed against them. They have now filed the present application for being released from jail pending confirmation by the High Court of the sentence passed against them.
2. Section 309 of the Criminal P.C. (hereinafter referred to as the Code) empowers the Sessions Judge to pass sentence according to law on an accused who is convicted, and the sentence which the Sessions Judge is authorised to pass on a person who is convicted under Section 302, R.P.C. is either a sentence of death or a sentence of life imprisonment. This power is however subject to Section 31(2) of the Code which provides that 'A Sessions Judge or Addl. Sessions Judge may pass any sentence authorised by law, but any sentence of death or of life imprisonment passed by any such Judge shall be subject to confirmation by the High Court.' Section 374 of the Code provides that 'When the Court of Session passes sentence of death of life imprisonment the proceedings shall be submitted to the High Court and the sentence shall not be executed unless it is confirmed by the High Court.' The learned Counsel for the petitioners relies on the latter part of this section for his contention that the detention of the petitioners in prison in pursuance of the Judgment of the Sessions Judge amounts to execution of the sentence of life imprisonment without however the sentence being confirmed by the High Court.
3. Under the Indian Criminal P.C. it is only a sentence of death passed by a Court of Session that cannot be executed unless confirmed by the High Court. Under that Code the Sessions Judge while submitting the proceedings to the High Court for confirmation of the death sentence, commits the convicted person to jail along with a warrant in Form No. XXXIV prescribed in Schedule V to that Code, and by virtue of that warrant the Sessions Judge authorises the Superintendent of the jail to which the convicted person or persons is/are sent 'to receive the said (Prisoner's name) into your custody in the said jail, together with this warrant, and him there safely to keep until you shall receive the further warrant or order of this Court, carrying into effect the order of the said Court.' The Indian Criminal P.C. therefore, provides for the detention in jail of a prisoner sentenced to death until the confirmation of the said sentence by the High Court.
4. Under Section 374 of the State Code a sentence of life imprisonment also is subject to confirmation by the High Court, but there is no warrant prescribed under the said Code under which a person sentenced to life imprisonment may be detained in jail pending confirmation of the sentence by the High Court. There is obviously a lacuna in the Criminal P.C. of this State which has given room for the contention that the petitioners cannot be detained in jail pending confirmation by the High Court of the sentence passed against them.
5. We are quite convinced that it was not the intention of the legislature of this State while providing for confirmation by the High Court of a sentence of life imprisonment, not to provide for the detention in jail of a person so sentenced until confirmation of the sentence by the High Court and to set such person at liberty during the interregnum between his conviction by the Sessions Judge and confirmation of the sentence by the High Court. The learned Addl. Advocate General for the State has referred to Section 555 of the Code which reads as follows :
Forms--Subject to the power conferred by Section 554, the forms set forth in the Fifth Schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient.
and it is contended that Form No. XXXIV in Schedule V of the Code may be used with suitable modifications for directing, the Superintendent of the jail to keep prisoners sentenced to life imprisonment in his custody in jail until the sentence is confirmed by the High Court. He has also pointed out that as a matter of fact the Sessions Judge has issued warrants in Form No. XXXIV with suitable modifications for the detention of the petitioners in jail until confirmation by the High Court of the sentence of life imprisonment passed against them. We see considerable force in this contention of the learned Addl. Advocate General. We have to interpret the several provisions of the Code in a manner which in our view carries out the intention of the legislature. It would be unreasonable, in our view to interpret Section 374 of the Code in the manner suggested by the learned Counsel for the petitioner and to say that there is no provision in the Code for the detention of the petitioners in jail pending confirmation by the High Court of the sentence passed against them and that they should be set at liberty during the interregnum. We are also unable to accept the contention of the learned Counsel for the petitioners that the detention of the petitioners in jail under warrant of the Sessions Judge in Form No. XXXIV referred to above amounts to execution of the sentence of life imprisonment. Just as in the case of the detention of a person sentenced to death by virtue of warrant in form No. XXXIV does not amount to execution of any sentence of imprisonment, the detention of the petitioners in jail under a similar warrant does not amount to the execution of the sentence of life imprisonment. Further by virtue of Section 397-A of the amended Code the period during which they were in jail custody either during the pendency of the preliminary inquiry as well as during the pendency of the trial in the Court of Session and also the period after their conviction till the date of confirmation of the sentence by this Court shall be included in the sentence that would be passed by this Court.
6. Before concluding, we, however, wish to draw the attention of the Government to the desirability of making suitable amendment in the Code for carrying out the real intention of the legislature.
In the result the application is dismissed.