Summary
The petitioner had been originally sentenced to death under s. 302, I.P.C. but on a mercy petition preferred by him, the sentence had been commuted to 'imprisonment for life'. He had undergone actual rigorous imprisonment of 11 years, 5 months and 10 days but, inclusive of remissions, the total imprisonment worked out to 22 years, 2 months and 17 days.
In support of the claim that the petitioner should be released forthwith it was contended: (i) The detention 'in jail' of a person under 'imprisonment for life' is unlawful because, after the enactment of s. 117 of the Cr. P.C.(Amendment) Act (26 of 1955), though persons who commit 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, I.P.C. read with 'Secondly' of s. 53, I.P.C., this new sentence has not been made legally executable in jail; and like the sentence of 'transportation for life', it remains executable by way of banishment or exile to the 'places' envisaged 771under s. 32 of the Prisoners Act, 1900; (ii) 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, I.P.C. and, it is only the punishment enlisted at item 'Fourthly'(which must mean 'imprisonment for a term') that can be executed in jail either in rigorous manner or simple; (iii) Since the sentence of 'imprisonment for life' can be executed only by the convict being 'removed to the place or places' required to be appointed 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 the 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, I.P.C. or s. 433 (b), Cr. P.C., 1973;and (iv) Although no such formal order of commutation had been passed in the case, the petitioner having been subjected to rigorous imprisonment for a period of 14 years, the State Government should be deemed to have passed such an order.Counsel for respondents contended: (1) 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 petitioners have been concluded by Pandit Kishori Lal's and Gopal Godse's cases; (ii) that since the sentence of 'imprisonment for life' can be legally executed in jails within the country there is no question of releasing the petitioner forthwith, in the absence of an order of commutation passed by the State Government either under s. 55, I.P.C. or s. 433 (b), Cr. P.C., 1973, simply because he has served 14 years'of rigorous imprisonment.Dismissing the Petition,^HELD 1. Since the petitioner's sentence has not been commuted for imprisonment for a term not exceeding 14 years either under s. 55, I.P.C. or s. 433 (b), Cr. P.C. 1973 by the appropriate Government, 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. [790 D]Gopal Godse's case, [1961] 3 SCR 440, referred to.2. The sentence of 'transportation' either for a term or for life was executable in jails within the country. The same position must obtain in regard to persons sentenced to'imprisonment for life' on or after January 1, 1956. [784 F](1) The law on the point has been clearly enunciated in Pandit Kishori Lal's case where the Privy Council held that "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". There is no force in the contention that the provisions of law referred to by the Privy Council for basing this conclusion did not warrant the said conclusion.[778 H-779G]Pandit Kishori Lal's case, A.I.R. 1945 P.C. 64 referred to.(ii) Even prior to the coming into force of the Amending Act 26 of 1955 (i.e.,prior to January 1, 1956) all prisoners sentenced to transportation for a 772term of years or for life were not invariably deported to the overseas penal settlement in the Andamans.Transportation prisoners were divided into two categories, namely, those who were eligible for deportation and those who were not (who generally included convicts suffering from specified diseases or infirmities) and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under s. 32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order s. 55, I.P.C. or s. 402, Cr. P.C., 1898.[780 F-H](iii) Under s. 32 of the Prisoners Act, 1900 the State Government has been empowered to appoint places within the State, and places in other States with their consent, where transportation prisoners could be lodged for undergoing their sentences. It is obvious that the expression'confinement' occurring in the marginal note of the section means the prisoners' detention in the place for the purpose of executing or carrying out their sentence. Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the 'places' for confinement of transportation prisoners.A sentence of 'transportation' either for a term or for life could be, and a sentence of "imprisonment for life" can be, made executable in local jails by constituting such jails as the 'places' within the meaning of s. 32 under orders of the State Governments. [781 F-782 F]Kundan Lal & Ors. v. Emperor, A.I.R. 1931 Lahore 353;and Re: Khairati Ram, A.I.R. 1931 Lahore 476 distinguished.(iv) Paragraph 719 of the Punjab Jail Manual as published in 1916 provided that every prisoner sentenced to transportation for a term or for life, if ineligible for deportation to the Andamans, shall be transferred to and confined in one or other of the jails specified therein which were constituted 'places' for the detention of transportation prisoners within the Punjab under s. 32 of the Prisoners Act, 1900. This paragraph was amended some time later and the words "if ineligible for deportation to the Andamans" were deleted as is evident from the amended Para 719 appearing in the Punjab Jail Manual published in 1975. It is therefore clear that since then, so far as Punjab is concerned, no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails. [783 F-784 E](v) Section 383, Cr. P.C., 1898 and s. 418, Cr. P.C., 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails. Both the sections appear in a chapter dealing with 'Execution of Sentences' under the respective Codes and are identically worded. It is obvious that the 'confinement' of the convict in jail pursuant to the Court's warrant issued under the sections is for the purpose of executing or carrying out the sentence. The proviso to sub-s. (1) of s. 418 and sub-s. (2) of s. 418 make the position abundantly clear that the expression'confinement' has been used in the sense of execution or carrying out of the sentence.[782 G-783 C]773 3. The position in law as regards the nature of punishment involved in a sentence of 'imprisonment for life'is well settled. The sentence of imprisonment for life has to be equated with rigorous imprisonment for life. [790 B](i) Transportation to overseas penal settlement always implied hard labour for the concerned convicts. Sub-s. (3) of s. 17 of the 'Andaman and Nicobar Manual', a Government of India publication of the year 1908, states that transportation means hard labour under strict discipline.Section 146 says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily. These provisions clearly bring out the fact that the sentence of transportation either for life or for a term inexorably ment rigorous imprisonment in the sense of exaction of hard labour from the convict. This position has been judicially noticed in Pandit Kishori Lal's case.Therefore, on Counsel's own argument, the sentences of'transportation for life' and 'imprisonment for life' being similar in nature, the sentence of 'imprisonment for life'must mean 'rigorous imprisonment for life'. [786 E-H]Pandit Kishori Lal's case, A.I.R. 1945 P.C. 64 referred to.(ii) Sub-s. (1) of s. 53-A provides that any reference to 'transportation for life' in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed, shall be construed as a reference to 'imprisonment for life'. Under sub-s. (2) of s. 53-A, I.P.C. Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term. If transportation for a term, has been equated to rigorous imprisonment for the same term, by necessary implication, the sentence of 'transportation for life', now substituted by 'imprisonment for life', which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life. [787 A-F]Gopal Godse's ease, [1961] 3 S.C.R. 440; State of Madhya Pradesh v. Ahmadulla, A.I.R. 1961 S.C. 998; and K.M.Nanavati v. State of Maharashtra, A.I.R. 1962 S.C. 605 referred to.4. It is not possible to sustain the view that while passing the sentence of imprisonment for life a criminal court should keep in view the provisions of s.60, I.P.C. and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused. In the first place, a distinction between'imprisonment for life' and 'imprisonment for a term' has been maintained in the Penal Code in several of its provisions. Secondly, by its very terms, s. 60 is applicable to a case where "an offender is punishable with imprisonment which may be of either description". And it is clear that whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description"; in other words, s. 60 would be inapplicable. [789 D-H]Mathammal Saraswathi v. The State, A.I.R. 1957 Kerala 102, overruled.774See the full content of this document
Extract
Naib Singh VS. State Of Punjab & Ors.
PETITIONER: NAIB SINGH Vs.RESPONDENT: STATE OF PUNJAB & ORS.DATE OF JUDGMENT19/04/1983BENCH: TULZAPURKAR, V.D.BENCH: TULZAPURKAR, V.D.MISRA, R.B. (J)CITATION: 1983 AIR 855 1983 SCR (2) 770 1983 SCC (2) 454 1983 SCALE (1)425ACT: Indian Penal Code, 1860-s. 302 and 'Secondly' of s. 53- Prisoner sentenced to 'imprisonment for life' not entitled to be set free after undergoing 14 years' rigorous imprisonment unless specific order commuting sentence is passed under s. 55 I.P.C. or s. 433 (b), Cr. P.C., 1973.Indian Penal Code, 1860-s. 302 read with 'Secondly of s. 53 and s. 32 of Prisoners Act, 1900-Sentence of'imprisonment for life' is executable in jails within the country.Prisoners Act, 1900-s. 32-State Governments could appoint jails as 'places' for confinement of prisoners sentenced to transportation for a term or for life.Code of Criminal Procedure, 1898-s. 383-and Code of Criminal Procedure, 1973-s. 418-These Provisions also empower Criminal Court to direct execution of sentence of'imprisonment for life' in local jails.Indian Penal Code, 1860-s. 302 and 'Secondly' of s. 53 read with sub-ss. (1) and (2) of s. 53 A-'Imrisonment for life' means 'rigorous imprisonment for life'-Criminal Court not obliged to keep in view Provisions of s. 60 I.P.C. while passing sentence of 'imprisonment for life'.JUDGMENT: ORIGINAL JURISDICTION: Writ Petition (Crl.) No. 850 of 1982(Under article 32 of the Constitution of India.)S.B. Malik and K.B. Rohtagi for the Petitioner.Harbans Singh and D.D. Sharma for the Respondents.The Judgment of the Court was delivered byTULZAPURKAR, J. 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.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 Indian Penal Code. La...
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