Gopal Vinayak Godse Vs. The State of
Maharashtra & Ors [1961] INSC 9 (12 January 1961)
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
MUDHOLKAR, J.R.
CITATION: 1961 AIR 600 1961 SCR (3) 440
CITATOR INFO:
R 1976 SC1552 (4) R 1977 SC1096 (6) RF 1980
SC2147 (72) R 1982 SC1439 (6) F 1983 SC 855 (2,4,15,18) R 1984 SC 739 (5) F
1985 SC1050 (5,11) RF 1989 SC 653 (12) RF 1990 SC1396 (6) E 1991 SC1792
(4,9,10,11,12,17) R 1991 SC2296 (6,8)
ACT:
Habeas Corpus-Sentence-Transportation for
life-Imprisonment for life, if equivalent to any fixed term-Remissions, right
to--When can be taken into consideration-Indian Penal Code, 1860 (XLV of 1860),
s. 53A-Code of Criminal Procedure, 1898 (V of 1898), s. 401.
HEADNOTE:
The petitioner was convicted in 1949 and
sentenced to transportation for life. He earned remission of 2963 days and
adding this to the term of imprisonment actually served by the petitioner the
aggregate exceeded 20 years. The petitioner contended that his further
detention in jail was illegal and prayed for being set at liberty:
Held, that the petitioner had not yet
acquired any right to be released. A sentence of transportation for life could
be undergone by a prisoner by way of rigorous imprisonment for life in a
designated prison in India. Section 53A of the Indian Penal Code, introduced by
the Code of Criminal Procedure (Amendment) Act, 1955, provided that any person
sentenced to transportation for life before the Amendment Act would be treated
as sentenced to rigorous imprisonment for life. A prisoner sentenced to life
imprisonment was bound to serve the remainder of his life in prison unless the
sentence was commuted or remitted by the appropriate authority. Such a sentence
could not be equated with any fixed term. The rules framed under the Prisons
Act entitled such a prisoner to earn remissions but such remissions were to be
taken into account only towards the end of the term.
The question of remissions was exclusively
within the province of the appropriate Government. In the present case though
the Government had made certain remissions under s. 401 of the Code of Criminal
Procedure, it had not remitted the entire sentence.
Pandit Kishori Lal v. King-Emperor, (1944)
L.R. 72 I.A. , referred to.
ORIGINAL JURISDICTION: Petition No. 305/1960.
Petition under Article 32 of the Constitution
of India for enforcement of Fundamental Rights.
Petitioner in person.
H. N. Sanyal, Additional Solicitor-General of
India pond R. H. Dhebar, for the respondents, 441 1961. January 12. The
Judgment of the Court was delivered by SUBBA RAO, J.-This is a; petition under
Art. 32 of the Constitution for an order in the nature of habeas corpus
claiming that the petitioner has justly served his sentence and should,
therefore, be released.
On February 10, 1949, the Judge, Special
Court, Red Fort, Delhi, convicted the petitioner for offences under s. 3, read
with s. 6, of the Explosive Substances Act, under s. 4(b) and s. 5 thereof, I
and for murder under s. 302, read with s. 109, of the Indian Penal Code; for
the first two offences he was sentenced to seven years' rigorous imprisonment
and five years rigorous imprisonment respectively and for the third offence to
transportation for life and all the sentences were directed to run concurrently.
After conviction he was imprisoned in jails in the State of Punjab till May 19,
1950, and thereafter he was transferred to Nasik Road Central Prison in the
State of Bombay (now Maharashtra). According to the petitioner, he has earned
the following remissions up to September 30, 1960:
(a) Ordinary remission ... 836 days (b)
Special remission ... 206 days (c) Physical training remission ... 113 days (d)
Literary remission ... 108 days (e) Annual good conduct remission ... 250 days
(f) State remission ... 1380 days The total of the remissions earned is 2,893
days; but the State in its counter-affidavit state that the petitioner has
earned up to the said date remission of 2,963 days. The figure given by the
State may be accepted as correct for the purpose of this petition. If the
amount of remissions thus earned was added to the term of imprisonment the
petitioner has actually served, the aggregate would exceed 20 years, and even
if only the State remission was added to it, it would exceed 15 years. The
petitioner, claiming that under the relevant provisions governing his
imprisonment his further detention in jail would be illegal, prays that he
might be set at liberty forthwith. The State, while conceding that he has
earned remissions 56 442 &mounting to 2,963 days, alleged in the counter
affidavit that the remissions earned did not entitle him to be released and
that under the rules the question of his release would be considered only after
he completed 15 years' actual imprisonment.
The petitioner argued his case in person. He
rejected the help of an advocate as amicus curiae to assist him. In the
circumstances, his argument was based more on emotional plane than on legal
basis. But as the liberty of a citizen is involved, we have gone through the
relevant provisions and considered the possible contentions that may be raised
on the basis of the said provisions.
The first question that falls to be decided
is whether, under the relevant statutory provisions, an accused who was
sentenced to transportation for life, could legally be imprisoned in one of the
jails in India; and if so, what was the term for which he could be so
imprisoned. We shall briefly notice the relevant provisions of the Indian Penal
Code before it was amended by the Code of Criminal Procedure (Amendment) Act
XXVI of 1955. Section 53 of the Indian Penal Code set out six different
punishments to which offenders were liable. The second of those punishments was
transportation and the fourth was imprisonment which was of two descriptions,
namely, rigorous and simple. The word " transportation " was not
defined in the Indian Penal Code, but it was for life with two exceptions.
Under s. 55 of the Indian Penal Code, " In every case in which sentence of
transportation for life shall have been passed, the Provincial Government of
the Province within which the offender shall have been sentenced may, without
the consent of the offender, commute the punishment for imprisonment of either
description for a term not exceeding fourteen years." Under s. 58 thereof,
in every case in which a sentence of transportation was passed, the offender,
until he was transported, should be dealt with in the same manner as if
sentenced to rigorous imprisonment and should be held to have been undergoing
his sentence of transportation during the term of his imprisonment. It was
averred on behalf of the 443 State that the petitioner's sentence had not been
commuted under s. 55 of the Indian Penal Code or under s. 402 (1) of the Code
of Criminal Procedure to one of rigorous imprisonment. We have no reason for
not accepting this statement. On that basis, a question arises whether the
petitioner, who was sentenced to transportation, could be dealt with legally as
if he were a person sentenced to rigorous imprisonment. This question was
raised before the Judicial Committee of the Privy Council in Pandit Kishori Lal
v. King Emperor(1). After considering the history of the sentence of
transportation, the relevant provisions of the Indian Penal Code, the Code of
Criminal Procedure and the Prisons Act, the Privy Council came to the
conclusion that the said provisions made it plain that when a sentence of
transportation had been passed it was no longer necessarily a sentence of
transportation beyond the seas.
It was observed at p. 9 thus:
" 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 three 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, where he
will be dealt with in the same manner as a prisoner sentenced to rigorous
imprisonment." In view of this weighty authority with which we agree, it
is not necessary to consider the relevant provisions, particularly in view of
s. 53A of the Indian Penal Code which has been added by Act XXVI of 1955.
Section 53A of the said Code reads:
"(1)..........
(2) In every case in which a sentence of
transportation for a term has been passed before the commencement of the Code
of Criminal Procedure (Amendment) Act, 1954, the offender shall be dealt with
in the same manner as if sentenced to rigorous imprisonment for the same term.
(1) (1944) L.R. 72 I.A. I, 444 Whatever
justification there might have been for the contention that a person sentenced
to transportation could not be legally made to undergo rigorous imprisonment in
a jail in India except temporarily till he was so transported, subsequent to
the said amendment there is none. Under that section, a person transported for
life or any other term before the enactment of the said section would be
treated as a person sentenced to rigorous imprisonment for life or for the said
term.
If so, the next question is whether there is
any provision of law where under a sentence for life imprisonment, without any
formal remission by appropriate Government, can be automatically treated as one
for a definite period. No such provision is found in the Indian Penal Code,
Code of Criminal Procedure or the Prisons Act. Though the Government of India
stated before the Judicial Committee in the case cited supra that, having
regard to s. 57 of the Indian Penal Code, 20 years' imprisonment was equivalent
to a sentence of transportation for life, the Judicial Committee did not
express its final opinion on that question. The Judicial Committee observed in
that case thus at p. 10:
" Assuming that the sentence is to be
regarded as one of twenty years, and subject to remission for good conduct, he
had not earned remission sufficient to entitle him to discharge at the time of
his application, and it was therefore rightly dismissed, but 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 twenty years, or that the convict
is necessarily entitled to remission." Section 57 of the Indian Penal Code
has no real bearing on the question raised before us. For calculating fractions
of terms of punishment the section provides that transportation for life shall
be regarded as equivalent to imprisonment for twenty years. It does not say
that transportation for life shall be deemed to be transportation for twenty
years for all purposes; nor does the amended section which substitutes the
words imprisonment for life " for " transportation for life enable
the drawing of any such all-embracing fiction. A sentence of transportation for
life or 445 imprisonment for life must prima facie be treated as transportation
or imprisonment for the whole of the remaining period of the convicted person's
natural life.
It is said that the Bombay rules governing
the remission system substituted a definite period for life imprisonment and,
therefore, if the aggregate of the term actually served exceeds the said
period, the person would be entitled to be released. To appreciate this
contention the relevant Bombay rules may be read.
Release. Rule 934. " In a11 cases of
premature releases, orders under Section 401, Criminal Procedure Code, will
have to be issued by Government before the prisoners can actually be released
from Jail." Rule 937. (c) " When a life convict or a prisoner in
whose case the State Government has passed an order forbidding his release
without reference to it, has earned such remission as would entitle him to
release but for the provisions of this rule, the Superintendent shall report
accordingly to the State Government through the Inspector-General in order that
his case may be considered with reference to Section 401 of the Code of
Criminal Procedure, 1898." The Remission System: Rule 1419. (c) " A
sentence of transportation for life shall ordinarily be taken as 15 Years'
actual imprisonment." Review of Sentences: Rule 1447. (2) " Notwithstanding
anything contained in rule 1419 no prisoner who has been sentenced to
transportation for life or more than 14 years, imprisonment or to
transportation and imprisonment or to transportation and imprisonment for terms
exceeding in the aggregate 14 years shall be released on completion of his term
of transportation or imprisonment or both, as the case may be, including all
remissions unless a report with respect to such prisoner has been made under sub.
Rule (1) and orders of Government have been received thereon with regard to the
date of his final release." It is common case that the said rules were
made under the Prisons Act, 1894, and that they have 446 statutory force. But
the Prisons Act does not confer on any authority a power to commute or remit
sentences; it provides only for the regulation of prisons and for the treatment
of prisoners confined therein. Section 59 of the Prisons Act confers a power on
the State Government to make rules, inter alia, for rewards for good conduct.
Therefore, the rules made under the Act should be construed within the scope of
the ambit of the Act. The rules, inter alia, provide for three types of
remissions by way of rewards for good conduct, namely, (i) ordinary, (ii)
special and (iii) State.
For the working out of the said remissions
under rule 1419(c), transportation for life is ordinarily to be taken as 15
years' actual imprisonment. The rule cannot be construed as a statutory
equation of 15 years' actual imprisonment for transportation for life. The
equation is only for a particular purpose, namely, for the purpose of "
remission system " and not for all purposes. The word " ordinarily
" in the rule also supports the said construction. The non obstante clause
in sub-rule (2) of rule 1447 reiterates that notwithstanding anything contained
in rule 1419 no prisoner who has been sentenced to transportation for life
shall be released on completion of his term unless orders of Government have
been received on a report submitted to it. This also indicates that the period
of 15 years' actual imprisonment specified in the rule is only for the purpose
of calculating the remission and that the completion of the term on that basis
does not ipso facto confer any right upon the prisoner to release. The order of
Government contemplated in rule 1447 in the case of a prisoner sentenced to
transportation for life can only be an order under s. 401 of the Code of
Criminal Procedure, for in the case of a sentence of transportation for life
the release of the prisoner can legally be effected only by remitting the
entire balance of the sentence. Rules 934 and 937(c) provide for that
contingency. Under the said rules the orders of an appropriate Government under
s. 401, Criminal Procedure Code, are a prerequisite for a release.
No other rule has been brought to our notice
which confers an indefeasible right on a 447 prisoner sentenced to
transportation for life to an unconditional release on the expiry of a
particular term including remissions. The rules under the Prisons Act do not
substitute a lesser sentence for a sentence of transportation for life.
Briefly stated the legal position is this:
Before Act XXVI of 1955 a sentence of transportation for life could be
undergone by a prisoner by way of rigorous imprisonment for life in a
designated prison in India. After the said Act, such a convict shall be dealt
with in the same manner as one sentenced to rigorous imprisonment for the same
term.
Unless the said sentence is commuted or
remitted by appropriate authority under the relevant provisions of the Indian
Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life
imprisonment is bound in law to serve the life, term in prison. The rules
framed under the Prisons Act enable such a prisoner to earn remissions ordinary,
special and State-and the said remissions will be given credit towards his term
of imprisonment. For the purpose of working out the remissions the sentence of
transportation for life is ordinarily equated with a definite period, but it is
only for that particular purpose and not for any other purpose. As the sentence
of transportation for life or its prison equivalent, the life imprisonment, is
one of indefinite duration, the remissions so earned do not in practice help
such a convict as it is not possible to predicate the time of his death. That
is why the rules provide for a procedure to enable the appropriate Government
to remit the sentence under s. 401 of the Code of Criminal Procedure on a
consideration of the relevant factors, including the period of remissions
earned.
The question of remission is exclusively
within the province of the appropriate Government; and in this case it is
admitted that, though the appropriate Government made certain remissions under
s. 401 of the Code of Criminal Procedure, it did not remit the entire sentence.
We, therefore, hold that the petitioner has not yet acquired any right to
release.
448 The petitioner made an impassioned appeal
to us that if such a construction be accepted, he would be at the mercy of the
appropriate Government and that the said Government, out of spite, might not
remit the balance of his sentence, with the result that he would be deprived of
the fruits of remissions earned by him for sustained good conduct, useful
service and even donation of blood. The Constitution as well as the Code of
Criminal Procedure confer the power to remit a sentence on the executive
Government and it is in its exclusive province. We cannot assume that the
appropriate Government will not exercise its jurisdiction in a reasonable
manner.
For the foregoing reasons we hold that the
petitioner is under legal detention and the petition for habeas corpus is not
maintainable. The petition is dismissed.
Petition dismissed.
Back
