V.D.TULZAPURKAR - (1.) BY this writ petition under Art. 32 of the Constitution the petitioner Naib Singh is challenging his continued detention in jail and is seeking an order in the nature of habeas corpus claiming that he has justly served more than the maximum sentence of imprisonment prescribed under law and should, therefore, be released.
(2.) THE petitioner was originally sentenced to death on 18-1-1969 by the learned Sessions Judge, Ferozepore, for committing an offence of murder under S. 302, Penal Code. Later, on a mercy petition preferred by him, his death sentence was commuted by the Governor of Punjab to imprisonment for life, which he has been undergoing in the Central Jail at Bhatinda. Excluding the period spent by him as an under-trial prisoner (in respect whereof no life-convict is entitled to the benefit of a set-off) under S. 428, Cr. P. C. 1973 as interpreted by this Court in Kartar Singh's case, (1932) 3 SCC 1 : (AIR 19,82 SC 1439), the petitioner appears to have undergone a total imprisonment of 22 years 2 months and 17 days inclusive. of remissions as under: JUDGEMENT_454_2_1983Html1.htm Admittedly, neither his sentence has been remitted fully nor commuted for imprisonment for a term not. exceeding 14 years either under S. 55. Indian Penal Code or S. 433 (b), Cr. P. C. 1973 by the appropriate Government, with the result that he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse's case, (1961) 3 SCR 440: (AIR 1961 SC 600). However, on the basis of the aforesaid particulars. which are not disputed, the petitioner's case is that he has positively undergone more than 14 years of sentence including remissions and since through the officer-in-charge of Jail the Government got executed his sentence in jail custody in the form of rigorous imprisonment, that is by subjecting him to hard labour and also by awarding him remissions the Government must be deemed to have commuted his sentence to 14 years either under S. 55 Indian Penal Code or S., 433 (b), Cr, P. C. 1973, notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith. Counsel for the petitioner elaborated the petitioner's case thus : S. 53. Indian Penal Code prescribes five or six distinct categories of punishment to which offenders are liable under the penal Code. Prior to its amendment by S. 117 of the Code of Criminal Procedure (Amendment) Act (26 of .1955) that section prescribed the punishment of 'Transportation, at item 'Secondly' but that was substituted by 'imprisonment for life' by the said Amending Act (26 of 1955) with effect from Jan. 1, 1956. According to counsel though persons who commit the offence of murder have been made liable to the newly substituted punishment of 'Imprisonment for life' instead of the earlier sentence of 'transportation for life' under S. 302. Indian Penal Code read with 'Secondly' of S. 53, Indian Penal Code, this new sentence of 'Imprisonment for life' (either awarded originally by the Sessions Court or by way of commutation of death sentence by the appellate Court or the appropriate Government or authority) has not been made legally 'executable' in jail under either the Code of Criminal Procedure 1898 or 1973 or any other law or. under any writ, order or warrant of the Court, by the Officer-in-Charge of jail and like 'sentence of. transportation for life', 'imprisonment for life' remains executable by way of banishment or exile to the 'places' envisaged under S. 32 of the prisoners Act (3 of 1900) and the Officer-in-Charge of the jail is merely mandated to keep the convict person in intermediate custody only and is required to 'deliver him over' to appropriate authority and custody for the purpose. of 'removal to the places' aforesaid, for executing or carrying out the sentence and in this behalf reliance was placed on the prescribed Forms of Warrant of Commitment under Ss. 383 and 386 of the Cr; P. C. 1898 as also under S. 418 of the Cr. P. C. 1973 and therefore, the detention in jail of a person Under 'Imprisonment for life' is unlawful. Counsel further urged that the Amending Act (26 of 1955) did not change the nature of punishment formerly known as 'transportation for life' by calling it 'imprisonment for life' and the, latter like the former remains distinct from the punishment of rigorous or simple imprisonment' enlisted at item 'Fourthly' in S. 53, Indian Penal Code and it, is only the punishment enlisted at item 'Fourthly' (which must mean imprisonment for a term) that can be executed in a jail either in rigorous manner or simple depending upon the court's direction contained in the Warrant of Commitment; in other words. the two punishments namely. 'imprisonment for life' and 'imprisonment (for a term) rigorous or simple' are distinct punishments as regards their nature, the place and the mode of their execution and the Officers executing them. In substance counsel's contention has been that in regard to the sentence of life imprisonment the place where it has to be executed or carried out has not been appointed under S. 32 of the prisoners Act, 1900 nor has its nature been prescribed. that is to say, it is not necessarily rigorous. In support of the latter aspect regarding the nature of the punishment. Counsel relied upon the fact that even the Law Commission in its 39th Report dated 4/07/1968 on "The punishment of Imprisonment for Life under the I. P. C." had recommended a suitable amendment in the Indian Penal Code by inserting a specific provision to the effect: "Imprisonment for life shall be rigorous" and that the said recommendation was reiterated by it in its 42nd Report which suggests that the existing law on this aspect is not clear. Counsel, therefore, urged that since the sentence of 'imprisonment for life', like the sentence of 'transportation for life can be executed only by the convict being 'removed to the place or places' required to be appointed by the State Government under S. 32 of the prisoners Act 1900 and since no 'such place or places' have been appointed under the aforesaid provision by the State Government. the executing authorities are obliged by the present state of law to 'execute' or carry out' the said sentence in Jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under S. 55. Indian Penal Code or S. 433 (b). Cr. P. C. 1973. In other words, according to counsel. in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail custody, his detention in such jail custody will have to be regarded as illegal and unlawful or alternatively it should be held that on his being made to undergo rigorous imprisonment in jail for a period of 14 years (inclusive of remissions) he would be entitled to be released from jail as on the expiry of the aforesaid period his continued detention would be illegal. It was on the basis of the aforesaid reasoning that counsel contended that although no formal order of commutation either under S. 55, Indian Penal Code or S. 433 (b). Cr.. P. C. has been passed in the case of the petitioner, the petitioner having been subjected to rigorous imprisonment for a period of more than 14 years (inclusive of remissions) the State-Government should be deemed to have passed such an order and the petitioner was entitled to be released forthwith. On the other hand counsel for the respondents seriously disputed that either the old sentence of 'transportation for life' or the hew sentence of 'imprisonment for life' substituted by the Amending Act 26 of 1955 was or is executable only by way of banishment or exile of the convicts to overseas penal settlements or that the Officers-in-Charge of jails could not or cannot confine them in the jails within the country for executing or carrying out the sentences imposed upon them. Counsel emphatically denied that either the old sentence of 'transportation for life' or the newly substituted sentence of 'imprisonment for life' (either awarded originally or by way of commutation of death sentence) had not been or has not been made legally executable in jails in the country and contended that there was and is ample legal authority warranting the execution or carrying but of such sentences, in the jails through the Officers-in-Charge thereof and in that behalf reliance was placed on Ss. 383-384 of the old Cr. P. C. 1898 as well as Ss. 418-419 of the present Cr. P. C. 1973 read with Ss. 3. 7. 15. 16, 29 and 32 of the prisoners Act No. 3 of 1990 and certain executive or administrative orders or directions issued from time to time by State Governments: in particular reference was made to Paras 719 and 726A of the Punjab Jail Manual whereunder transportation prisoners (who would include life convicts) could be made to undergo their sentences in certain jails in the country - such jails being constituted the 'place' for their confinement. under S. 32 of Act 3 of 1900, and counsel urged that accordingly the petitioner herein has been undergoing his Sentence of life imprisonment in the Central Jail/ Bhatinda. Further, on the aspect of the nature of the punishment counsel contended that having regard to the insertion of a new section. S. 53-A in the penal. Code by the Amending Act 26 of 1955, which is in the nature of an Interpretation Clause it would be clear that parliament intended that a sentence of 'imprisonment for life, should be equivalent to rigorous imprisonment for life. It was pointed out that on both the aspects touching the punishment of 'imprisonment for life' (namely the place of its executability as well as its nature) the contentions urged on behalf of the petitioner have been concluded by two well-known judicial pronouncements. One of the Privy Council in Pandit Kishori Lals case. AIR 1945 PC 64 and the other of this Court in Gopal Godse's case (AIR 1961 SC 600) (supra) and the position in law on both the aspects having been settled by those decisions 'the recommendation made by the Law Commission in its 39th Report as well as 42nd Report will be of no avail to the petitioner and will have to be regarded as having been made only for the purpose of removal of doubts and clarifying or declaring the existing legal position. If. therefore, the sentence of 'imprisonment for life' is nothing but 'rigorous imprisonment for life and can be and is being legally executed or carried out in one of the jails in the, country in the case of the petitioner there will be no question of releasing him forthwith simply because he has served 14 years of rigorous imprisonment, (inclusive of remissions) in the absence of an order of commutation passed by the State Government either under S. 55 of the Indian Penal Code or S. 433 (b) of the Cr. P. C. 1973. The petitioner is, therefore, not entitled to the relief sought by him.
(3.) FROM the rival contentions urged by counsel on either side as summarised above it will appear clear that the entire edifice of the Petitioner's claim for immediate release from jail custody is based on two premises: (a) inexecutability of the sentence of life imprisonment (formerly called transportation for life) in jail through the Officer-in-Charge thereof under the existing law and (b) undefined nature of punishment to be suffered under the sentence of life imprisonment which is not necessarily rigorous; but because he was made to undergo his sentence of life imprisonment in jail and that too in rigorous manner for more than 14 years (inclusive of remissions) his sentence should be deemed to have been commuted by the State Government either under S. 55. Indian Penal Code or under S. 433 (b). Cr. P. C. 11373 without a formal order in that behalf and he be. released forthwith. The question is whether the two premises on which his claim to immediate release rests are valid? On the question whether a sentence of transportation for life could be executed in jails within the country or the same was executable only beyond the seas. the position. in our view, has been clearly enunciated by the Privy Council in Pt. Kishori Lal's case. After considering the history of the sentence of transportation, the relevant provisions of the penal Code, the Code of Criminal Procedure and the prisoners Act, the Privy Council came to the conclusion that the said provisions clearly showed that a sentence of transportation was not necessarily executable beyond the seas. It observed of the Report thus:- "These sections make it plain that when a sentence of transportation has been passed it is no longer necessarily a sentence of transportation beyond the seas. Nowhere is any obligation imposed on the Government either of India or of the provinces to Provide any places overseas for the reception of prisoners. It appears that for many years the only place to which they have been sent is the Andaman Islands are now in Japanese occupation. Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are, and are not. regarded as fit subjects for transportation thereto and showing also that now-a-days only such of those prisoners sentenced to transportation 'as may volunteer to undergo, transportation overseas are sent to those islands... But at the present day transportation is in truth but a name given in India to a sentence for life and in a few special cases for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of 3 years and upwards... So in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India, appointed for transportation prisoners... " However, counsel for the petitioner. made a brave attempt, of course in all humility, to submit that the provisions of law referred to by the Privy Council for basing its aforesaid conclusion do not warrant the said conclusion and with a view to canvass his submission he elaborately dealt with and took us through the various provisions of the penal Code, Code of Criminal Procedure and the prisoners Act. On giving our careful and anxious consideration to the, matter we have 'come to the conclusion that it is difficult to accept counsel's submission. ;