HASAMBHAI MOTIBHAI Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
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(1.) The desire to breathe free and fresh air outside the prison walls has motivated those life convicts who are serving time since before 18/12/1916 the date on which sec. 433-A was inserted in the Code of Criminal Procedure (hereinafter called the Code) to address applications to the learned Chief Justice which have been registered and numbered as Writ Petitions under Article 226 of the constitution for their early release on the ground that life convicts who have completed 14 years of incarceration inclusive of remissionS are under the existing State Government rules entitled to be set free. Some of the life convicts who have not completed even 14 years inclusive of remissions claim to be released citing examples of premature release of some of their colleagues either by the State Government or under Court orders invoking Article 14 of the Constitution. The stand of the State Government on the other hand is that a life convict has no right to early release but ordinarily as per the rules framed by the State Government such prisoners are released on their completing 17 years of incarceration inclusive of remissions unless there are exceptional circumstances to depart from the said rule.
(2.) The chorus cry for early release to freedom must be examined in the context of sec. 432 433 and 433-A of the Code. Before we do so we must state that according to the decision of the Supreme Court in GOPAL VINAYAK GODSE V. STATE OF MAHARASHTRA A.I.R. 1961 S.C. 600 a sentence of imprisonment for life must prima facie be treated as imprisonment for the whole of the remaining period of the convicted persons natural life. Again in MARU RAM V. UNION OF INDIA A.I.R. 1980 S.C. 2147 following the decision in Godses case (supra) Krishna Iyer J. speaking for the majority observed in paragraph 72 of the judgment that imprisonment for life lasts until the last breath and whatever the length of remissions earned the prisoner can claim release only if the remaining sentence is remitted by the Government. It is obvious from the aforesaid two decisions of the Supreme Court that life convicts are not entitled automatically to early release on their completion of 14 years incarceration inclusive of remissions or even a longer period unless the State Government in exercise of power conferred upon it by sec. 432 of the Code grants remission for the rest of the period.
(3.) Sec. 432 of the Code provides that when any person has been sentenced to punishment for an offence the appropriate Government may at any time without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Sec. 433 next provides that 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; (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.
Sec. 433-A which was inserted by the Amendment Act 1978 provides that notwithstanding anything contained in sec. 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 punishments provided by law or where a sentence of death imposed on a person has been commuted under sec. 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 In Maru Rams case (supra) the Supreme Court came to the conclusion that sec. 433-A was prospective and applied to only those who were convicted on and after 18/12/1978 In other words every person convicted before that date could avail of the benefit accruing to him from the remission scheme or short sentencing projects in vogue in the State. It was also clarified that when a person is convicted in appeal his conviction will have retroactive effect and will be treated as having been made from the date of judgment of the trial Court. In the present group of cases all the prisoners were convicted before 18/12/1978 and therefore their cases will not be governed by sec. 433-A of the Code. It may also at this stage be stated that the State Government has not passed any order either under sec. 432 or under sec. 433 of the Code granting remission or commutation of the sentence passed against the present prisoners.;
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