Report No. 39
13. Effect of section 53A explained by Supreme Court.-
The question whether a person sentenced to transportation for life in 1949 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, came up before the Supreme Court after the passing of the Code of Criminal Procedure (Amendment) Act, 1955, on a petition for habeas corpus filed by Gopal Vinayak Godse. Agreeing with the decision of the Privy Council in Pandit Kishori Lal v. King Emperor, 1944 LR 72 IA 1: AIR 1945 PC 64, and referring particularly to sub-section (2) of section 53A of the Indian Penal Code, the Court held1:-
"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."
The legal position was further explained as follows:-
"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 section 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned.".
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