- (1.) THESE are three petitions under sec. 491 Cr. P. C. The facts of the cases of Chhotia and Sheo Bhagwan have been given in detail in our order of reference and we need not repeat them. After the cases of Chhotia and Sheo Bhagwan had been referred to Full Bench the petition of Ramdeo came up before this court and it was ordered that as his case was similar to that of Chhotia it be connected with these cases. The facts of Ramdeo's case are similar to those of the cases of Chhotia and Sheo Bhagwan. He was also sentenced to life imprisonment which was ordered to run for 25 years.
(2.) THE point which deserves consideration in these cases is whether the sentences passed in these three cases by the courts of the former Jaipur State before the formation of Rajasthan were legal. In all the three cases the sentences were awarded under sec. 290 of the Jaipur Penal Code which corresponds with sec. 302 of the Indian Penal Code. Under sec. 290 J. P. C. the sentences provided are death or imprisonment for life and fine. THE sentence in Ramdeo's case was of life imprisonment to be computed equal to 25 years' rigorous imprisonment and under sec. 290 J. P. C. no such sentence could have been passed. THE sentence of 25 years' rigorous imprisonment is therefore not legal. Similarly in the case of Chhotia the sentence passed was of life imprisonment but it was added in the order that life imprisonment shall be deemed to be equivalent to 25 years. So far as the sentence that was awarded for the life imprisonmnent was concerned it was perfectly in accordance with the law. But the provision in the order regarding 25 years' rigorous imprisonment appears to be inconsistent with the provision of sec. 290 of the Jaipur Penal Code. THE case of Sheo Bhagwan is exactly at par with that of Chhotia. In his case also the sentence of life imprisonment was passed and it was provided that it would be deemed equivalent to 25 years' rigorous imprisonment. THE provision regarding deeming of life imprisonment to be equivalent to 52 years in these cases is not in accordance with the provision of sec. 290 of the Jaipur Penal Code. In answer to the first part of the question which was referred by us to the Full Bench, it has been held that it would be open to the High Court to examine the legality of the sentence passed by any court even after it had become final, where the sentence is, on the face of it, excessive either because it is more than what the law prescribed for the particular offence, or it is more than what the court of the grade which purported to pass the sentence could pass under the law as it was in force at the time the sentence was passed. Applying the principle laid down by the decision of the Full Bench to the three cases before us the portions of sentences which were more than the maximum term provided by the law shall have to be treated as illegal. The sentences of all the three petitioners therefore shall have to be treated to be those of life imprisonment only and the specification regarding 25 years in the terms of sentences shall have to be ignored. The next question which arises in these cases is as to whether the life sentence should be construed to be equivalent to 20 years' or 25 years' rigorous imprisonment. In a number of cases this court has held that life imprisonment under sec. 290 J. P. Code should be deemed to be equivalent to 20 years' rigorous imprisonment. Those decisions were given in the light of the provisions of sec. 49 of the Jaipur Code. Mr. Bhargava has cited the case of Kishorilal vs. Emperor (1) (A. I. R. 1945 P. C. 64.) wherein their Lordships of the Privy Council have observed as follows : - "assuming that the sentence is to be regarded as one of 20 years, and subject to remission for good conduct he had no earned remission sufficient to entitle him to discharge at the time of his application and it was therefore rightly dismissed, in saying this, their Lordships are not to be taken as meaning that a life sentence must and in all cases be treated as one of not more than 20 years or that the convict is necessarily entitled to remission. " In that case with reference to sec. 57 of the Indian Penal Code which corresponds with sec. 49 of the Jaipur Penal Code their Lordships traced the history of the Penal Code and in the opinion of their Lordships the provision of sec. 57 of the Indian Penal Code was made in 1860 as at that time all those persons who were sentenced to transportation for life were invariably to be sent to some place outside India. Before such persons could be transported they had no remain for some time in the jails in India and in order that the fractions of the term of life sentence might be calculated uniformly in all cases the provision of sec. 57 was made. With this historical background their Lordships made the observation which has been reproduced above. The interpretation of sec. 57 I. P. C. which is based on its historical origin does not apply to the case of the Jaipur Penal Code of 1924. No sentence of transportation for life was provided in the Jaipur Penal Code. In its place the sentence of life imprisonment was provided. The provision of sec. 49 in the context in which it has been interpreted by their Lordships of the Privy Council will have no meaning in the case of Jaipur Penal Code. The framers of the Jaipur Penal Code in adopting the provision of sec. 57 (corresponding with sec. 49 of the Jaipur Penal Code) took it with the idea that life imprisonment was equivalent to 20 years' rigorous imprisonment. This becomes evident when the Council Resolution of 1939 of the then Jaipur State Council is looked into, where it has been said that life imprisonment should be made equivalent to 25 years' rigorous imprisonment and sec. 49 of the Jaipur Penal Code be accordingly amended. In interpreting sec. 49 J. P. C. therefore we think that the intention of the framers of the Code was to fix the term of life imprisonment at 20 years. We should not be understood by saying so to be expressing any opinion regarding the meaning of sec. 57 of the Indian Penal Code relating to which the observations of their Lordships of the Privy Council which have been reproduced above shall have full application. Taking the sentences of life imprisonment of all the three petitioners to be equivalent to 20 years we find from the records of the jail authorities that their sentences have been served out taking the remissions which have been awarded to them by the jail authorities into account. Mr. Bhargava has raised a fresh point that the jail authorities were not competent to grant remission in these cases and that the matter of remissions should have been referred to the Government for orders. He has spport-ed bis argument by referring to the Council Resolution of the Jaipur State of 1st November, 1924 and the opinion of the Chief Justice of the Jaipur State expressed by him in the case of Chhatra son of Nanda Lohar (Judicial Department File No. 3 of 1928 ). It may be noted in this behalf that the reports of the jail authorities which have been received in these cases do not show whether the Government sanction, if necessary. , had not been obtained in these cases. But this is a matter which is not for this Court to consider. It was the duty of the jail authorities to have examined the cases of remission and to have obtained the Government sanctions if such sanctions were necessary. On the face of it the reports of the jail authorities do not disclose that they are wrong or they have been made subject to certain reservations regarding obtaining of Government sanctions. Under these circumstances, this court can only proceed on the assumption that the reports of the jail authorities are in accordance with the rules and that they are not wrong. Proceeding on this assumption, it is evident that the three petitioners have served out their sentences and therefore their detention in jail is illegal. We allow the three petitions and order that Chhotia, Sheo Bhagwan, and Ramdeo be released from jail, if not required in any other case. . ;