BAPNA, J. - (1.) THIS is a petition under sec. 491 of the Code of Criminal Procedure by Narsia, son of Dayachand Jat of Karera Kalan. He was convicted by the Sessions Judge of Jaipur on the 16th of January, 1939, for an offence under sec. 290 of the then Jaipur Penal Code, 1924, which corresponds now to sec. 302 of the Indian Penal Code, and sentenced to twenty years' rigorous imprisonment. It may be pointed out that the punishment provided for an offence under sec. 290 of the Jaipur Penal Code was a sentence of death or imprisonment for life. The sentence for imprisonment for life was understood to be equivalent to a sentence of imprisonment for 20 years. The same Judgment was upheld on appeal to the then Chief Court of Jaipur, but it was added that the murder was most brutal, and the accused will not be granted any remission. A sentence of life imprisonment required confirmation by the Darbar, and on the case coming up to the Darbar (His Highness in Council), it was ordered that the sentence of life imprisonment be confirmed, and the life sentence was to run for 25 years, and the remissions would not exceed five years.
(2.) NARSIA has now applied on 9th August, 1953, that he has under-gone actual rigorous imprisonment for a period of 14 years, 6 months and 23 days, and this period taken together with the remissions granted to him is more than 20 years, and he should now be released. The Superintendent of Central Jail, Jaipur, under his report of the 12th August, 1953, has intimated that the petitioner has served an actual sentence of 14 years, 6 months and 23 days, and he has been allowed special remissions for 5 years, 1 month and 10 days and ordinary remissions for 3 years, 1 month and 21 days, and has thus undergone a sentence of 22 years, 9 months and 24 days. The question, which arises in this case, is whether the explanation added by the Court of His Highness in Council to the sentence of life imprisonment that the accused will undergo rigorous imprisonment for 25 years is valid. It has already been decided, on reference by a Division Bench, by a full Bench on this Court on 29th July, 1953, in Chhotia vs. The State (1954 RLW 212), that this Court has jurisdiction under sec. 491 to the Code of Criminal Procedure to examine a case already decided by the highest Court of the covenanting State to see if the sentence is illegal, that is, whether it is in excess of that provided by the law in force at the time, or in excess of what the court, which passed the sentence, could pass. On the case coming again before the Division Bench (1) (See 1954 RLW 418.), to which one of us was a party, it has been held that the Jaipur Penal Code provided a sentence of death or imprisonment for life on conviction for an offence under sec. 290 of the said Code, and that in adding the explanation that the sentence of imprisonment for life will run for 25 years, the court did something which was not provided by law. The explanation, which has been added in the present case, is based on a Resolution of the Council of State, Jaipur No 2, dated 15th, July, 1939 in which while considering the question of granting remission to persons sentenced to life imprisonment, the Committee said that "life imprisonment should be made equivalent to rigorous imprisonment for 25 years, and sec. 49 of the Jaipur Penal Code be accordingly amended." It was further stated that while an accused deserving capital sentence should not be allowed remissions exceeding five years in accused not deserving a capital sentence could be allowed remissions not exceeding ten years. Prior to this Resolution, it was laid down by the Council of State by their Resolution of 1st November, 1924, (while confirming the life sentence on one Umla) that in case of the imprisonment passed in lieu of the capital punishment, on remission were to be allowed. This was understood to mean, as mentioned in the preamble of the Resolution of 15th July, 1939 that the accused sentences to life imprisonment to undergo rigorous imprisonment for the full term of 20 years. However the Resolution of 15th July, 1939, remained unpublished, and cannot have the force of law. Sec. 49 of the Jaipur Penal Code provided that: - ''In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years." and the amendment recommended was for substitution of 25 years for 20 years. The amendment, referred to in the Council Resolution, was never made by any notification in the Gazette, but it seems to have been taken for granted that the section had been amended. It was held in Chhotia's case(3) (1954 RLW 212) that the sentence of life imprisonment should be deemed as equivalent to rigorous imprisonment for 20 years, as indicated by sec. 49 of the Jaipur Code. In coming to that conclusion the corresponding section of the Indian Penal Code, viz, sec. 57, was examined with reference to the decision of the Privy Council in Pandit Kishore Lal vs. King Emperor(2) (LXXII (1944-45) Indian Appeals 1.), and it was pointed out that the observations of their Lordships of the Privy Council were made in a different setting. There is one more reason for coming to the same conclusion. Prior to the enforcement of the Jaipur Penal Code, 1924 the Penal Law of the Jaipur State known as "Qanoon-i-Jarayam va Saza" had a provision similar to sec. 290 of the Jaipur Penal Code. Sec. 90 of the Qanoon-i-Jarayam va Saza provided a sentence of death or imprisonment for life for the offence of murder. This sentence of imprisonment for life was always considered as equivalent to rigorous imprisonment for twenty years. It is not possible to find how and when life imprisonment was defined to be a sentence of 20 years' rigorous imprisonment, but a Government file, Judicial/3 Jail/433 Re. Release of Chatra life convict, contains an English translation of the correspondence, which passed between the Superintendent of Jail and the Mahakma Alia Council, Jaipur, and which throws great light on this point. In Kefiyat No. 1984 of 8th June, 1916, Mahakma Alia Council wrote to the Superintendent, Jail in answer to certain proposals that "In this State life sentence means 20 years' sentence" This file was placed before us by the learned Government Advocate, and we have no doubt that the Mahakma Alia Council in laying down the sentence of life imprisonment to mean 20 years did not purport to legislate but only reiterated the law which was in force in the Jaipur State. In the circumstances' we hold that the courts in Jaipur State in enforcing the Jaipur Penal Code, 1924, were only authorised to pass a sentence of life imprisonment, which sentence was equivalent to rigorous imprisonment for 20 years. In so for as His Highness in Council purported to add a rider to the sentence of life imprisonment by a direction that it was to mean rigorous imprisonment for 25 years, the court exercised a Jurisdiction not vested in it, and the said direction was illegal. The sentence of life imprisonment, as mentioned, above, was equivalent to rigorous imprisonment for 20 years. According to the report of the Superintendent, Central Jail the petitioner has undergone the sentence of more than 20 years, by taking into consideration the remissions granted to him along with the actual sentence served by him. He is, therefore, entitled to be released at once. The petition is therefore, allowed. The petitioner will be released from jail, if not required for any other offence.;