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PETITIONER: STATE OF PUNJAB AND ORS. ETC. ETC.

       Vs.

RESPONDENT: JOGINDER SINGH AND ORS. ETC. ETC.

DATE OF JUDGMENT23/03/1990

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) FATHIMA BEEVI, M. (J)

CITATION:  1990 AIR 1396            1990 SCR  (2) 147  1990 SCC  (2) 661        JT 1990 (2)   323  1990 SCALE  (1)610

ACT:     Manual  for the Superintendence and Management of  Jails in  Punjab.’ Paragraphs 516-B and 631--Whether statutory  in character-Interpretation  of--Remission  of  sentence--Grant of--Powers and fetters.     Code of Criminal Procedure, 1973.’ Sections 432, 433 and 433A-Sentence--Suspension,           remission           and commutation--Grant  Punjab Jail Manual-Paragraphs  516B  and 631--Interpretation of.

HEADNOTE:     Paragraph  516-B of the Manual for  the  Superintendence and  Management  of Jails in Punjab provides  for  premature release  of prisoners. The State Government had  issued  in- structions  in 1971 modifying the executive instructions  in paragraph  516B,  to  the effect that a  convict  must  have undergone  8  1/2 years of substantive sentence  before  his case could be submitted to the Government for consideration. Again there was another executive instruction in 1976  which provided that cases of convicts who were sentenced to  death and  whose  sentences  were subsequently  commuted  to  life imprisonment would not be submitted to the State  Government for  consideration unless the convict has undergone  atleast 14 years of substantive imprisonment.     Paragraph 631 of the said Manual relates to remission of sentences. The note below paragraph 631 reproduces the  gist of paragraph 516-B.     Going  by the preface of the Manual, paragraph  631  has statutory force whereas paragraph 5 16B being in the  nature of executive instruction has no statutory force.     The respondents filed Criminal Writ Petitions before the High Court praying for their premature release on the  basis that  the note under paragraph 631 has statutory force,  the executive  instructions issued in 1971 and 1976 have  to  be ignored and that the Jail Superintendent was bound to submit their cases to the Government for premature release. 148     The High Court allowed the claim of the respondents  and held that the executive instructions issued in 1971 and 1976 being  in conflict with the statutory note must give way  to the latter.

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   These appeals, by special leave, preferred by the  State Government challenge the High Court’s decision on the ground that  the source of paragraphs 516 and the note at the  foot of paragraph 631 being the same, viz., resolution dated  6th September, 1905, it cannot be concluded that the note  being an  integral  part  of the statutory  rule  incorporated  in paragraph 631 must receive the same character and in case of conflict  between  the two, the note which is  statutory  in character must prevail. Allowing the appeals, this Court,     HELD: 1. Remissions by way of reward or otherwise cannot cut  down  the sentence awarded by the  Court  except  under Section 432 of the Criminal Procedure Code or in exercise of constitutional  power under Article 72/161 of the  Constitu- tion. Remission cannot detract from the quantum and  quality of  the judicial sentence except to the extent permitted  by Section 432 of the Code, subject of course to Section  433A, or  where the clemency power under the Constitution  is  in- voked. The power under Articles 72 and 161 of the  Constitu- tion  is  absolute and cannot be lettered by  any  statutory provision  such as Sections 432, 433 and 433A of  the  Code. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or  Prison Rules. [153H; 154A-C]     2.  Remission  schemes are introduced to  ensure  prison discipline and good behaviour and not to upset sentences. If the  sentence  is of imprisonment for life,  ordinarily  the convict has to pass the remainder of his life in prison  but remissions and commutations are granted in exercise of power under Sections 432 and 433 Cr.P.C., carving out an exception in  the category of those convicts who have already  enjoyed the  generosity  of executive power on  the  commutation  of death  sentence  to one of life imprisonment. Even  in  such cases Section 433A of the Code or the executive  instruction of 1976 does not insist that the convict pass the  remainder of his life in prison but merely insists that he shall  have served  time  for at least 14 years. In the  case  of  other ’lifers’ the insistence under the 1971 amendment is that  he should have a period of atleast 8-1/2 years of incarceration before  release. The 1976 amendment was possibly  introduced to make the remission scheme consistent with Section 433A of the Code. Since Section 433A is prospective, so also 149 would be the 1971 and 1976 amendments. [154E-H]     Gopal  Vinayak Godse v. State of Maharashtra,  [1961]  3 SCR  440 and Maru Ram v. Union of India, [1981] 1 SCR  1196, relied on.     3. According to the preface only those paragraphs  which are  blacklined have statutory character. The note in  ques- tion is not so blacklined. The source of paragraph 516B  and the  note  is the very same Resolution No.  159-167  of  the Government of India dated 6th September, 1905. It is  diffi- cult to believe that the same resolution was intended to  be a  mere executive instruction in one part of the Manual  and was intended to be conferred a statutory character in anoth- er.  The  marginal  note to the Note in  question  in  terms refers to paragraph 516-B which means it was merely a repro- duction  of the latter paragraph. In the  circumstances,  if the note was intended to be conferred a statutory character, it would have been blacklined in keeping with the scheme  of the Manual. Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g., 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison- ers.  The note at the foot of the paragraph is by way  of  a reminder  that notwithstanding the duration fixed under  the

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said  rule,  paragraph  5 16B requires that  cases  of  such prisoners should be submitted on the expiry of the  duration fixed under paragraph 516B. It is, therefore, clear that the note is neither an integral part of paragraph 631; nor  does it have statutory flavour as held by the High Court.  [155B- F]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.  7 18-7 19/81 & 205-2 12, 2 13- 2 17 & 204 of 1990.     From the Judgments and Order dated 29.4.1981,  22.5.1981 &  29.4. 1981 of the Punjab and Haryana High Court  in  Crl. W.P. Nos. 38 & 46, 80-84, 86-88 & 40 of 1981. R.S.  Suri, Mr. Mohan Pandey and R.P. Singh for  the  Appel- lants. S.Srinivasan  and C.L. Sahu Amicus Curiae for  the  Respond- ents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted in all the above matters.     These  appeals involve the interpretation of  paragraphs 516-B  and  631 of the Manual for  the  Superintendence  and Management of 150 Jails  in the Punjab. The preface to the Manual  shows  that those  paragraphs of the Manual against which a  black  line appears  are, in substance, either quotations from the  law, or,  from the Rules having the force of law,  the  authority having been indicted on the upper right hand margin of  each paragraph whereas the paragraphs which have not been  black- lined are executive instructions issued from time to time by the  Government  of India, or the Local  Government  or  the Inspector-General  with  the sanction and  approval  of  the Local Government. It may at once be mentioned that paragraph 5 16-B contained in Chapter XV entitled ’Release of  Prison- ers’  is  not blacklined while paragraph  631  contained  in Chapter  XX entitled ’Remission System’ is  blacklined.  The note in the upper right hand margin of paragraph 516B refers to  G of I Resolution No. 159-167 dated 6th September,  1905 and P.G. No. 18608--Jails-dated 28th June, 1920. There is no dispute  that this paragraph contains an executive  instruc- tion only. Paragraph 631 contains a note on the upper  right hand  margin referring to the G of I Resolution No.  161-172 of  2nd May, 1908 and P.G. Letter No. 1669-S (Home) of  31st July,  1908.  At the foot of paragraph 631 is  a  ’Note’  in small type with a right hand marginal note See para 5  16B’. While  there can be no controversy that paragraph 631  which is  blacklined has statutory force, the question is  whether the Note at the foot thereof, which is not blacklined,  also has statutory force.     Paragraph  5 16-B provides that the case of  every  con- victed prisoner (except females and males below 20 years  at the  date of the commission of the crime) sentenced  to  im- prisonment  for life or imprisonment aggregating to over  14 years  and who has undergone a period of detention  in  Jail amounting,  together  with remission earned,  to  14  years, ’shall  be’ submitted to the State Government,  through  the Inspector  General  of Prisons, for orders. In the  case  of female prisoners or prisoners who were below 20 years on the date of commission of the crime, reference is required to be similarly made to the State Government on their completing a detention period of 10 years inclusive of remissions. Clause (v),  however, provides that notwithstanding  anything  con- tained in the earlier part of the paragraph, a  Superintend-

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ent of jail ’may’, in his discretion, refer at any time, for the orders of the State Government, the case of any prisoner sentenced  to imprisonment for life whose sentence might  in the Superintendent’s opinion be suitably commuted to a  term of  imprisonment.  It would appear from a plain  reading  of this  paragraph that in the case of a prisoner who has  com- pleted  14 years of detention in jail. inclusive  remissions earned,  it is imperative on the part of the  Superintendent of 151 the Jail to submit his case, through the I.G. of Prisons, to the State Government for consideration. The use of the words ’shall  be submitted’ bring out this intention when we  con- trast them with the word ’may’ and the words ’in his discre- tion’  used in clause (v) thereto which begins with  a  non- obstante  clause.  Therefore,  where the  intention  was  to confer  a mere discretion on the Superintendent of Jail,  it was  made manifest by the use of the expression  ’may’  fol- lowed by the words ’in his discretion’ and where the  inten- tion  was  to cast a duty to submit the case  of  the  State Government, it was brought out by the word ’shall’ preceding the words ’be submitted  .....  for the orders of the  State Government’. We have, therefore, no doubt in our minds  that paragraph  5 16B, though an executive instruction, has  been couched  in language which clearly shows that in the  former type  of cases where the prisoner has completed 14 years  of detention in jail, inclusive of remissions, his case must be referred to the State Government for consideration. Notwith- standing  this limitation of completion of 14 years,  clause (v)  confers a discretion on the Superintendent of the  jail to  refer  or  submit the case of a prisoner  to  the  State Government  even before he has completed 14 years if in  his opinion the case is fit for commuting the sentence.     Paragraph  631 is indisputably a statutory one as it  is blacklined.  But  the blacklined portion  of  the  paragraph merely defines certain expressions including the  expression ’life convicts’ which means a person whose sentence  amounts to 20 years imprisonment. Then appears the Note which  reads as follows: "Note:  The case of all life-convicts and of  all  prisoners sentenced to more than 14 years imprisonment or to transpor- tation and imprisonment for terms exceeding in the aggregate 14  years  shall, when the term of  imprisonment  undergone, together  with any remission earned under the rules  amounts to  10  or 14 years, as the case may be, submitted  for  the orders  of the Local Government in accordance with  the  in- structions  contained in the Home Department Resolution  No. 159-167 (Jails), dated the 6th September, 1905." (See para 516B) It will be seen that the note merely reproduces the gist  of paragraph  5  16-B. Even the right side marginal  note  says ’see para 5 16-B’ and is based on the same Resolution of 6th September, 1905 on which paragraph 5 16-B is based. The note is not blacklined as in the case of 152 the Note below paragraph 633. It was, therefore, urged  that when  paragraph  516-B is not blacklined, this  note  below. paragraph  63  1, which too is not blacklined,  can  not  be construed to be statutory in character merely because  para- graph 631 incorporates a statutory rule.     Since the source of paragraph 5 16-B and the Note at the foot of paragraph 631 is the same, namely, the Resolution of 6th September, 1905, counsel for the State of Punjab submit- ted  that the learned Judge in the High Court was not  right in  concluding that the Note being an integral part  of  the

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statutory  rule incorporated in paragraph 631  must  receive the  same character and if there is a conflict  between  the two, the note which is statutory in character must  prevail. The  difficulty  arises  because the  State  Government  has issued instructions in 1971 which has the effect of  modify- ing the executive instructions in paragraph 5 16-B, in that, it is now provided that a convict must have undergone  8-1/2 years of substantive sentence before his case for  premature release can be submitted to the State Government for consid- eration. A further change was made by an executive  instruc- tion  issued in 1976 whereby it was provided that  cases  of convicts  who  were sentenced to death and  whose  sentences were subsequently commuted to life imprisonment will not  be submitted  to the State Government for consideration  unless the  convict has undergone atleast 14 years  of  substantive imprisonment.  The High Court has taken the view that  while paragraph  5  16-B would stand amended or  modified  by  the subsequent  executive instructions, the statutory rule  con- tained in the Note below paragraph 631 cannot be touched  by mere  executive  instructions and hence it still  holds  the field and the Superintendent for the jail is bound to submit the case to the State Government ignoring the change brought about  by  the executive instructions of 1971 and  1976.  In other  words,  according  to the High  Court  the  executive instructions  of  1971 and 1976 being in conflict  with  the statutory Note must give way to the latter.     Before we deal with the above question it may be  advan- tageous to refer to Sections 432,433 and 433A of the  Crimi- nal  Procedure Code which have a bearing on the question  of premature  release. Section 432 confers on  the  appropriate Government  the power to suspend the execution of  the  sen- tence  or  remit the whole or part of the sentence  with  or without conditions. Section 433 confers power on the  appro- priate Government to commute (a) a sentence of death for any other  punishment provided under the Penal Code, (b) a  sen- tence of imprisonment for life, for imprisonment for a  term not exceeding 14 years or 153 fine  (c)  a sentence of rigorous imprisonment,  for  simple imprisonment  or fine or (d) a sentence of simple  imprison- ment for fine. Section 433A provides that where an  offender is  visited with a sentence of imprisonment for life for  an offence for which death is one of the punishments or where a sentence of death is commuted under Section 433 into one  of punishment for life, such persons shall not be released from prison  unless he has served atleast 14 years  of  imprison- ment.  It  will thus seen that Section 432  and  433  confer powers of suspension, remission and commutation of sentences on  the  appropriate Government, an  expression  defined  in Sub-section (7) of Section 432 of the Code.     In Gopal Vinayak Godse v. State of Maharashtra, [1961] 3 SCR  440, this Court held that a sentence of  transportation for life or imprisonment for life must be treated as  trans- portation  or  imprisonment for the whole of  the  remaining period  of the convict’s normal life, unless the  said  sen- tence is commuted or remitted by the appropriate Government. Dealing  with the Rules framed under the Prisons Act,  1894, this  Court  held that even though they  were  statutory  in character  they  did not confer an indefeasible right  on  a prisoner  sentenced to transportation for life  an  uncondi- tional release on the expiry of a particular term  including remissions. It held that the rules framed under the  Prisons Act enabled a prisoner to earn remissions-ordinary,  special and  State the said remissions were to be given  credit  to- wards his term of imprisonment and for the purpose of  work-

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ing  out the remissions the sentence of  transportation  for life was equated with a definite period, but it is only  for the particular purpose and not for any other purpose. Lastly it  observed that the question of remission was  exclusively within the province of the appropriate Government.     In  Maru Ram v. Union of India, [1981] 1 SCR  1196  this Court  repelled  the challenge to Section 433A both  on  the question of competence of Parliament to enact the  provision and its constitutional validity. While interpreting Sections 432,433  and 433A of the Code, this Court pointed  out  that wide  powers or remission and commutation of sentences  were conferred on the appropriate government but an exception was carved  out  for the extreme category of convicts  who  were sentenced  to  death but whose sentence  had  been  commuted under Section 433 into one of imprisonment for life. Such  a prisoner is not to be released unless he has served  atleast 14  years  of imprisonment. The Court refused to  read  down Section  433A  to give overriding effect  to  the  Remission Rules  of the State. It categorically ruled  that  Remission Rules and like provisions stand excluded so far as  ’lifers’ punished  for capital offences are concerned. Remissions  by way of 154 reward or otherwise cannot cut down the sentence awarded  by the  Court except under Section 432 of the Code or in  exer- cise  of  constitutional power under Article 72/161  of  the Constitution. Remission cannot detract from the quantum  and quality  of the Judicial sentence except to the extent  per- mitted  by  Section 432 of the Code, subject  of  course  to Section 433A, or where the clemency power under the  Consti- tution  is invoked. But while exercising the  Constitutional power  under Article 72/161, the President or the  Governor, as the case may be, must act on the advice of the Council of Ministers. The power under Article 72 and 161 of the Consti- tution  is absolute and cannot be lettered by any  statutory provision  such  as Sections 432,433 and 433A of  the  Code. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or  Prison Rules.     Now,  paragraph 5 16-B requires that the case  of  every convict  sentenced to imprisonment for life or  imprisonment aggregating  to more than 14 years and who has  undergone  a period of detention in jail amounting, together with  remis- sion,  to 14 years, shall be submitted to the State  Govern- ment  for orders. The State Government’s instruction  issued in 1971 provides that the convict must have undergone  8-1/2 years  of  substantive  sentence before his  case  could  be submitted to the Government. The other instruction issued in 1976  provides that the case of a convict who was  sentenced to  death  and whose sentence was subsequently  commuted  to life imprisonment will not be submitted unless he has under- gone atleast 14 years of substantive imprisonment. Remission schemes are introduced to ensure prison discipline and  good behaviour and not to upset sentences; if the sentences is of imprisonment  for life. ordinarily the convict has  to  pass the  remainder  of  his life in prison  but  remissions  and commutations are granted in exercise of power under Sections 432  and  433 carving out an exception in  the  category  of those  convicts who have already enjoyed the  generosity  of executive power on the commutation of death sentence to  one of life imprisonment. Even in such cases Section 433A of the Code  or the executive instruction of 1976 does  not  insist that  the convict pass the remainder of his life  in  prison but  merely insists that he shall have served time  for  at- least 14 years. In the case of other ’lifers’ the insistence

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under the 1971 amendment is that he should have a period  of atleast 81/2 years of incarceration before release. The 1976 amendment  was  possibly introduced to  make  the  remission scheme  consistent  with  Section 433A of  the  Code.  Since Section  433A is prospective, so also would be the 1971  and 1976 amendments. 155     But  the  High  Court has come to  the  conclusion  that Paragraph  5 16-B, as amended by the executive  instructions of  1971 and 1976, cannot override the statutory  rule  con- tained in Paragraph 631 read with the note appended thereto. Counsel  for the State argued that the Note at the  foot  of Paragraph  631 merely reproduces Paragraph 5 16-B; the  mar- ginal note thereto says to in no uncertain terms and, there- fore, the Note cannot be ascribed a statutory character.  We think there is considerable force in this submission. In the first place it must be realised that according to the  pref- ace only those paragraphs which are blacklined have statuto- ry  character.  The Note in question is not  so  blacklined. Where  the note is intended to be given statutory  character it is blacklined, see the note at the foot of Paragraph 633. Secondly the source of paragraph 5 16-B and the Note is  the very same Resolution No. 159-167 of the Government of  India dated  6th September, 1905. It is difficult to believe  that the  same  resolution was intended to be  a  mere  executive instruction in one part of the Manual and was intended to be conferred a statutory character in another part of the  same Manual. Thirdly the marginal note to the Note in question in terms refers to Paragraph 5 16-B which means it was merely a reproduction  of the latter paragraph. In the  circumstances if the Note was intended to be conferred a statutory charac- ter,  it  would  have been blacklined in  keeping  with  the scheme  of  the  Manual. These are  clear  indicators  which support the submission of the learned counsel for the State. Lastly  Paragraph  631 classifies prisoners  and  fixes  the duration of their sentences e.g. 20 years for life  convicts and class 3 prisoners and 25 years for class 1 and 2 prison- ers.  The Note at the foot of the paragraph is by way  of  a reminder  that notwithstanding the duration fixed under  the said  rule,  Paragraph 5 16-B requires that  cases  of  such prisoners should be submitted on the expiry of the  duration fixed under Paragraph 5 16-B. It, therefore, seems clear  to us  that the Note is neither an integral part  of  Paragraph 631  nor does it have statutory flavour as held by the  High Court.     We,  therefore,  find it difficult to  uphold  the  view taken by the High Court in this behalf. We may make it clear that Paragraph 516B insofar as it stands amended or modified by  the   1971 and 1976 executive orders is  prospective  in character. We allow these appeals and set aside the judgment and Order of the High Court in each of these appeals. G.N.                                        Appeals allowed. 156