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PETITIONER: ASHOK KUMAR ALIAS GOLU

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT10/07/1991

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) SAWANT, P.B. AGRAWAL, S.C. (J)

CITATION:  1991 SCR  (2) 858        1991 SCC  (3) 498  JT 1991 (3)    46        1991 SCALE  (2)17

ACT:      Constitution of India, 1950: Articles 14 and 21, 245  & 246-Insertion   of  S.  433A  into  the  Code  of   Criminal Procedure,  1973-Validity of-Colourable legislation  fraud- Meaning of-Doctrine of pith and substance-Applicability of.      Articles 72, 161: Clemency-Powers of-Sections 54 and 55 IPC-Section 433A Cr. P.C. and provisions of Remission Rules- Whether subject to the overriding powers of clemency.      Indian  Penal Code, 1860: Sections 45, 54, 55  and  57- Fixing  terms  of  imprisonment-‘Life  imprisonment’-Whether imprisonment for full span of life.      Sections  54  and  55: Whether  subject  to  overriding powers of Articles 72/161 of the Constitution of India.      Criminal  Procedure Code, 1973: Section  433A-Insertion of-Whether a colourable legislation-Constitutional  validity of-IPC  (Amendment)  bill  not passed  by  Lok  Sabha  while passing  Cr. P.C. (Amendment) Bill-Government claiming  that both  the  bills were interlinked-Effect on  the  Amendment Bill  passed, inserting S. 433A-Prisoners covered under  the Section-Prisoners who were sentenced to death by Courts, but whose  sentence commuted to life imprisonment  by  executive clemency-Whether forms a distinct and separate class.      Sections 432, 433 and 433A: Release of prisoners  under Remission  Rules-Remittance  of sentence-Exercise  of  power under sections 432 and 433-Whether restricted by S.433A.      Rajasthan  Prisons  (Shortening  of  Sentences)  Rules, 1950:  Premature  release of  Prisoners-Whether  subject  to overriding powers of Sections 432, 433 and 433A Cr. P.C. and Articles 72/161 of the Constitution of India, 1950.      Statutory  Construction:  External  aid-Language  of  a provision                                                        859 plain and clear-Reading down the same with the aid of a Bill which had not become an enactment-Whether could be  resorted to.

HEADNOTE:      The  petitioner was convicted for murder and  sentenced to life imprisonment, which was confirmed by the High Court. Later  he  filed a Writ Petition before the High  Court  for premature  release  on the plea that he was entitled  to  be

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considered   for   release  under  the   Rajasthan   Prisons (Shortening  of Sentences) Rules, 1958  notwithstanding  the insertion of Section 433A in the Code of Criminal Procedure, 1973  with effect from 18.12.1978, just two days before  his conviction.   It  was contended that Section 433A  Cr.  P.C. which  places  an embargo of 14  years  imprisonment  before premature release could not curtail the constitutional power vested  in  the  Governor by virtue of Article  161  of  the Constitution.   The High Court, dismissed the Writ  Petition on  the ground that the petitioner’s representations to  the Government   and   State   Home   Minister   were    pending consideration.   However, the High Court directed  that  the two representations of the petitioner should be disposed  of within one month.      Unable  to  secure his release from the High  Court  as also  from  the State Government, the petitioner  filed  the present  Write Petition before this Court,  contending  that the  insertion  of  Section 433A in  the  Code  of  Criminal Procedure  was  invalid; that in the absence  of  guidelines under  Arts. 72/161 of Constitution, Section 433A  Cr.  P.C. could not apply to life convicts; that the Rajasthan Prisons (Shortening  of  Sentences) Rules, 1958 would  prevail  over Section 433A Cr. P.C., and that the constitutional guarantee under Articles 14 and 21 was violated.      Dismissing the Writ Petition, this Court      HELD:  1.1. It is only when a legislature which has  no power  to legislate frames a legislation so camouflaging  it as to appear to be within its competence when it knows it is not,  it  can  be said that the legislation  so  enacted  is colourable  legislation.   If  in  pith  and  substance  the legislation  does not belong to the subject  falling  within the limits of its power but is outside it, the mere form  of the  legislation will not be determinate of the  legislative competence. [871C; 872C]      1.2.  It is not a case of legislative  incompetence  to enact   section  433A.   No  such  contention  was   raised. Besides  the question of vires of section 433A of  the  Code has been determined by the Constitution Bench of this  Court in  Maru  Ram’s case.  This Court Repelled all  the  thrusts aimed at challenging the constitutional validity of  section 433A. [871A]                                                        860      1.3. It is no body’s contention that Parliament was not competent  to  amend the Criminal Procedure  Code  by  which section  433A was inserted.  Whether or not  the  connecting Indian Penal Code (Amendment)  Bill ought to have cleared or not was matter left to the wisdom of the Lok Sabha.   Merely because  the  Criminal Procedure Bill was made law  and  the Indian  Penal Code (Amendment) Bill was passed by the  Rajya Sabha  did not obligate the Lok Sabha to clear it.  The  Lok Sabha could have its own views on the proposed Indian  Penal Code  amendments.  It may agree with the executive’s  policy reflected in the Bill, with or without modifications, or not at  all.   Merely  because in  the  subsequent  instructions issued  by the letter of July 10, 1979 and the  accompanying note, the Joint-Secretary had interlinked the two Bills, the Lok  Sabha was under no obligation to adopt the  measure  as such  representation could not operate as  estoppel  against it.   It  is obvious that no question of mala fides  on  the part of the legislature was involved in the enactment of one legislation  and  failure  to enact another.   There  is  no question of ‘legislative fraud’ or ‘colourbale  legislation’ involved  in  the backdrop of the  legislative   history  of section  433A  of the Code of Criminal  Procedure.  [872D-H; 873A]

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    1.4.  In the present case if both the Bills had  become law, then in understanding or construing one legislation  or the  other, the scheme common to both would be kept in  view and  be permitted to interact.  But where the  linkage  does not  exist on account of the Indian Penal  Code  (Amendment) Bill  not  having  become law, section 433A cannot  be  read down  to apply to only those classes of capital offences  to which it would have applied had the said Bill been passed by the Lok Sabha in the terms  in which it was approved by  the Rajya  Sabha.  The  language of section 433A  is  clear  and unambiguous  and  does not call for extrinsic  aid  for  its interpretation.   To read down or interpret section 433A  of the Code with the aid of the changes proposed by the  Indian Penal Code (Amendment) Bill would tantamount to treating the said  Bills forming part of the Indian Penal Code, which  is clearly  impermissible.  To put such an interpretation  with the aid of such extrinsic material would result in  violence to the plain language of section 433A of the Code. [873D-F]      Maru  Ram  v.  Union  of  India,  [1981]  1  SCR  1196, followed.      K.C.  Gajapati Narayan Deo v. State of  Orissa,  [1954] SCR 1 and Sonapur Tea Co. Ltd.  v. Must Mariruznessa, [1962] 1 SCR 724, relied on.                                                        861      State  of Himachal Pradesh v. A Parent of a student  of Medical  College, Simla, [1985] 3 SCC 169 and W.R. Moram  v. Deputy  Commissioner of Taxation for N.S.W., [1940] AC  838, referred to.      2.1.  The  law  governing  suspension,  remission   and commutation    of   sentence   is   both    statutory    and constitutional.   The stage for the exercise of  this  power generally   speaking  is  post-judicial,  i.e.,  after   the judicial process has come to an end.  The duty to judge  and to award appropriate punishment to the guilty is a  judicial function  which  culminates  by  a  judgment  pronounced  in accordance with law.  After the judicial function thus  ends the  executive  function of giving effect  to  the  judicial verdict commences. [873G-H; 874A]      2.2.  One who could have been visited with the  extreme punishment  of  death  but  on  account  of  the  sentencing court’s generosity was sentenced to the lesser punishment of imprisonment for life and another who actually was sentenced to  death  but  on  account  of  executive   generosity  his sentence was commuted under section 433(a) for  imprisonment for  life have been treated under section 433A as  belonging to that class of prisoners who do not deserve to be released unless   they   have   completed   14   Years    of   actual incarceration.   Thus,  the  effect of section  433A  is  to restrict the exercise of power under sections 432 and 433 by the  stipulation that the power will not be so exercised  as would  enable the two categories of convicts referred to  in section 433A to freedom before they have completed 14  years of  actual  imprisonment.  This is  the  legislative  policy which  is  clearly discernible from the  plain  language  of section  433A  of  the Code.  Such  prisoners  constitute  a single  class  and have, therefore, been  subjected  to  the uniform  requirement  of  suffering  atleast  14  years   of internment. [874G-H; 875A-C]      3.  The expression ‘life imprisonment’ must be read  in the context of section 45 IPC.  Read so, it would ordinarily mean  imprisonment  for the full or complete span  of  life. Section  65, 116, 120 and 511 of the Indian Penal  Code  fix the  term  of imprisonment thereunder as a fraction  of  the maximum  fixed  for the principal offence.  It  is  for  the purpose  of  working  out  this  fraction  that  it   became

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necessary to provide under section 57 that imprisonment  for life shall be reckoned as equivalent to imprisonment for  20 years.  If such a provision had not been made it would  have been  impossible to work out the fraction of  an  indefinite term.   In  order  to  work out the  fraction  of  terms  of punishment provided in the above sections it was  imperative to  lay  down  the equivalent term  for  life  imprisonment. [875G; 876C-E]                                                        862      Gopal Goads v. State of Maharashtra, [1961] 3 SCR  440; affirmed.      4.1  Unless  the  sentence  for  life  imprisonment  is commuted or remitted by the appropriate authority under  the provisions of the relevant law, a convict is bound in law to serve the entire life term in prison; the rules framed under the  Prisons Act or life statute may enable such  a  convict to earn remissions but such remissions will not entitle  him to release before he has completed 14 years of incarceration in  view of section 433A of the Code unless of course  power has been exercised under Article 72/161 of the Constitution. Where  a person has been sentenced to imprisonment for  life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope  and must  be confined to the scope and ambit of the  said  rules and  do  not  acquire significance  until  the  sentence  is remitted  under  section 432, in which  case  the  remission would be subject to limitation of section 433A of the  Code, or  constitutional power has been exercised  under  Articles 72/161 of the Constitution. [878D-E]      4.2.  Articles 72 and 161 confer the clemency power  of pardon,  etc.,  on the President and  the  State  Governors, respectively.  This constitutional power would override  the statutory  power contained in sections 432 and 433  and  the limitation of section 433A of the Code as well as the  power conferred  by sections 54 and 55 IPC. No doubt,  this  power has to be exercised by the President/Governor on the  advice of his Council of Ministers. [880A-B]      4.3. Though in Maru Ram’s case, this Court  recommended the  framing of guidelines for the exercise of  power  under Articles  72/161  of the Constitution of India,  it  had  no binding effect on the Constitution Bench which decided Kehar Singh’s  case.   Nor has this Court said anything  in  Kehar Singh’s  case with regard to using the provisions of  extent Remission  Rules as guidelines for the exercise of  clemency powers.  [881H; 882A]      Maru  Ram v. Union of India, [1981] 1 SCR  1196;  Kehar Singh  v.  Union of India, [1989] 1 SCC  204;  Bhagirath  v. Delhi  Administration, [1985] 3 SCR 743 and Gopal  Godse  v. State of Maharashtra, [1961] 3 SCR 440, affirmed.      5.  It  is true that Articles 72/161 make  use  of  two expressions  ‘remissions’  with  regard  to  punishment  and ‘remit’  in  relation to sentence but it is  not  proper  to express any opinion as to the content and amplitude of these two  expressions in the abstract, in the absence of a  fact- situation. [882B]                                                        863      6.1   The   hypothetical  question   whether   it   was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment, which release would  tantamount  to the  prisoner  serving  time  for  the purpose  of  section  433A Cr. P.C., need  not  be  answered without  being  fully aware of the  conditions  imposed  for release.   In each case, the question whether  the grant  of conditional premature release answers the test laid down  by

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this Court in Maru Ram’s case, would depend on the nature of the  conditions imposed and the circumstances in  which  the order  is  passed  and  is  to  be  executed.   No   general observation can be made. [882C-H]      Maru Ram v. Union of India, [1981] 1 SCR 1196; referred to.      7. In the instant case, petitioner has not completed 14 years  of actual incarceration and as such he cannot  invoke sections 43 and 433 of the Code of Criminal Procedure.   His continued  detention is consistent with section 433A of  the Code  and  there  is nothing on record to show  that  it  is otherwise  illegal  and void.  The outcome of  his  clemency application  under the Constitution is not put in  issue  in the present proceedings if it has been rejected, and if  the same  is pending despite the directive of the High Court  it would  be open to the petitioner to approach the High  Court for the compliance of its order. [883E-F]

JUDGMENT:      ORIGINAL  JURISDICTION: Writ (Crl.) Petition No. 96  of 1989.      (Under Article 32 of the Constitution of India).      Nand  Lal,  S.K.  Bagga and Mrs.  S.K.  Bagga  for  the Petitioner.      V.C.  Mahajan  Mrs. Indra Sawhney, Ms.  A.  Subhashini, Aruneshwar  Gupta,  Surya  Kant  and   I.  Makwana  for  the Respondents.      The Judgment of the Court was delivered by      AHMADI,  J.  Liberty is the life line  of  every  human being.  Life without liberty is ‘lasting’ but not  ‘living’. Liberty  is, therefore, considered one of the most  precious and cherished possessions of a human being.  Any attempt  to take liberties with the liberty of a human being is  visited with resistance.  Since no human being can tolerate  fetters on  his  personal  liberty it is  not  surprising  that  the petitioner Ashok Kumar alias Golu continues to struggle  for his  liberty, premature release, not fully content with  the enunciation of the law in this behalf                                                        864 by  this Court in Maru Ram v. Union of India, {1981]  1  SCR 1196.      The questions of law which are raised in this  petition brought  under  Article 32 of the  Constitution  arise  upon facts of which we give an abridged statement.  On the  basis of  a  FIR lodged on October 21, 1977,  the  petitioner  was arrested  on  the  next day and he  along  with  others  was chargesheeted  for  the  murder of  one  Prem  Nagpal.   The petitioner  was tried and convicted for murder  on  December 20,  1978  in Sessions Case No. 32 of 1978  by  the  learned Sessions  Judge,  Ganganagar,  and  was  ordered  to  suffer imprisonment  for life.  His appeal, Criminal Appeal No.  40 of 1979, was dismissed by the High Court of Rajasthan. Since then he is serving time.  It appears that he filed a  Habeas Corpus  Writ Petition No. 2963 of 1987 in the High Court  of Rajasthan at Jodhpur for premature release on the plea  that he was entitled to be considered for such release under  the relevant   rules   of  Rajasthan  Prisons   (Shortening   of Sentences) Rules, 1958, (hereinafter alluded to as ‘the 1958 Rules’) notwithstanding the insertion of Section 433A in the Code  of Criminal Procedure, 1973 (hereinafter  called  ‘the Code’)  with  effect from December 18, 1978, just  two  days before his conviction.  His grievance was that he was  being denied  the  benefit of early release under the  1958  Rules

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under  the  garb  of the newly added Section  433A,  on  the ground  that  it  places a  statutory  embargo  against  the release  of such a convict ‘unless he has served atleast  14 years   of  imprisonment’.   He  contended  that  the   said provision could not curtail the constitutional power  vested in the Governor by virtue of Article 161 of the Constitution which  had to be exercised on the advice of the  Council  of Ministers  which  advice  could be based  on  a  variety  of considerations  including the provisions of the 1958  Rules. The writ petition was, however, dismissed by the High  Court on  October  31, 1988, on the ground that it  was  premature inasmuch as the petitioner’s two representations, one to the Governor  and  another  to  the State  Home  Minister,  were pending  consideration.  The High Court directed  that  they should be disposed of within one month.  In this view of the matter the High Court did not deem it necessary to  consider the  various  questions  of law raised in  the  petition  on merits.   After  the rejection of his writ petition  by  the High  Court, the petitioner through his counsel addressed  a letter dated November 28, 1988 to the Governor inviting  his attention  to  the earlier representation dated  August  29, 1988 and requesting him to take a decision thereon within  a month as observed by the High Court.  Failing to secure  his early   release  notwithstanding  the  above  efforts,   the petitioner  has  invoked the extraordinary  jurisdiction  of this Court under Article 32 of the Constitution.                                                        865      The  petitioner’s case in a nutshell is that under  the provisions  of the 1958 Rules, a ‘lifer’ who has  served  an actual sentence of about 9 years and 3 months is entitled to be  considered for premature release if the  total  sentence including  remissions  works  out  to 14  years  and  he  is reported  to be of good behaviour.  However, the  petitioner contends,  his case for premature release is not  considered by the concerned  authorities  in view of  the  newly  added section  433A  of  the Code on the  interpretation  that  by virtue of the said provision the case of a ‘lifer’ cannot be considered  for  early release unless he  has  completed  14 years  of actual incarceration, the provisions  of  sections 432  and  433  of  the  Code  as  well  as  the  1958  Rules notwithstanding.   According to him, even if the  provisions of  sections 432 and 433 of the Code do not come  into  play unless   a  convict  sentenced  to  life  imprisonment   has completed  actual incarceration for 14 years as required  by section  433A, the authorities have failed to  realise  that section  433A  cannot  override  the  constitutional   power conferred  by Articles 72 and 161 of the  Constitutional  on the President and the Governor, respectively, and the  State Government i.e., the Council of Ministers, could advise  the Governor  to exercise power under Article 161  treating  the 1958 Rules as guidelines.  Since the petitioner had  already moved the Governor under Article 161 of the Constitution  it was  incumbent  on  the State  Government  to  consider  his request for early release, notwithstanding section 433A, and failure  to  do  so entitled  the  petitioner  to  immediate release  as his continued detention was, wholly illegal  and invalid.   In support of this contention the petitioner  has placed reliance on the ratio of Maru Ram’s decision.      The petitioner brands section 433A of the Code to be  a ‘legislative  fraud’ inasmuch as the said provision was  got approved  by the Parliament on the assurance that  the  said provision   is  complementary  to  the  various   amendments proposed in the Indian Penal Code.  In the alternative it is contended that in any case this Court should by a process of interpretation  limit the scope of section 433A of the  Code

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to those cases only to which it would have been limited  had the  legislation  proposing amendments in the  Indian  Penal Code  gone through.  In any case after the decision of  this Court  in Maru Ram’s case, the efficacy of section  433A  is considerably reduced and the petitioner is entitled to early release by virtue of the power contained in ARticle 161 read with  the 1958 Rules even if guidelines are  not  formulated notwithstanding  the  subsequent decision of this  Court  in Kehar  Singh  v. Union of India, [1989] 1 SCC  204.  Counsel submitted that after the decision of this Court in Bhagirath v.  Delhi Administration, [1985] 3 SCR 743  whereunder  this Court extended the benefit of section 428 of the Code even                                                        866 to  life  convicts,  the ratio in Gopal Godse  v.  State  of Maharashtra,  [1961] 3 SCR 440 had undergone a  change.   On this broad approach, counsel for the petitioner,  formulated questions of law which may be stated as under:          1.  Whether  the insertion of section 433A  in  the          Code  was  a  legislative  fraud  inasmuch  as  the          connected  legislation,  namely, the  Indian  Penal          Code (Amendment) Bill XLII of 1972 did  not  become          law  although passed by the Rajya Sabha as the  IPC          (Amendment) Act, 1978, on November 23, 1978?          2. Whether on the ration of Maru Ram’s decision, in          the  absence  of any guidelines formulated  by  the          State under Article 72 of 161 of the  Constitution,          section  433A of the Code would not apply  to  life          convicts  and the 1958 Rules will prevail  for  the          purpose  of exercise of power under Article  72  of          161 of the Constitution?      Inter-connected  with this question, the  following  .l questions were raised:          a) Whether Maru Ram’s decision is in conflict  with          Kehar Singh’s Judgment on the question of necessity          or  otherwise  of guidelines for  the  exercise  of          power under Article 7 and 161 of the constitution?          b)  Whether the use of two expressions  "remission"          and  "remit"  in  Articles 72 and  161  convey  two          different meanings and if yes, whether the  content          f power in the two expressions is different?          c) Whether the persons sentenced to death by Court,          whose  death  sentence has been  commuted  to  life          imprisonment by executive clemency, form a distinct          and  separate class for the purpose of  application          of  section  433A of the Code as well  as  for  the          purpose  of  necessity (or not) of  guidelines  for          premature  release  in  exercise  of  power   under          Articles  72 and 161, from the persons who  at  the          initial   stage  itself  were  sentenced  to   life          imprisonment  by court verdict? And whether in  the          latter case guidelines are mandatory under  Article          72 and 161 and a well designed scheme of  remission          must be formulated if the constitutional  guarantee          under Articles 14 and 21 is to be preserved?          d)  Whether the whole law of remission needs to  be          reviewed after Bhagirath’s case wherein this  Court          held that imprisonment                                                        867          for  life  is also an imprisonment for a  term  and          that  a life convict is entitled to set  off  under          section 428 Cr. P.C.?          e)  Whether  it  is permissible  in  law  to  grant          conditional  premature  release to a  life  convict          even  before  completion  of  14  years  of  actual          imprisonment  notwithstanding section 433A  of  the

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        Code? If yes, whether the grant of such conditional          release  will be treated as the  prisoner  actually          serving time for the purpose of section 433A of the          Code?      First the legislative history.  The Law Commission  had in  its  42nd  Report  submitted  in  June,  1971  suggested numerous  changes in the Indian Penal Code  (IPC).  Pursuant thereto an Amendment Bill No. XLII of 1972 was introduced in the  Rajya Sabha on December 11, 1972 proposed wide  ranging changes  in the IPC.  One change proposed was  to  bifurcate section  302, IPC into two parts, the first  part  providing that  except  in  cases specified in the  second  part,  the punishment for murder will be imprisonment for life  whereas for  the  more heinous crimes enumerated in clauses  (a)  to (c),  of  sub-section  (2) the punishment may  be  death  or imprisonment  for life.  A motion for reference of the  Bill to  the Joint Committee of both the Houses was moved in  the Rajya  Sabha  on December 14, 1972 by the then  Minister  of State in the Ministry of Home Affairs and was adopted on the same  day.   The Lok Sabha concurred in the  motion  of  the Rajya  Sabha on December 21, 1972.  The Joint  Parliamentary Committee presented its report to the Rajya Sabha on January 29,  1976  recommending changes in several  clauses  of  the Bill.   While  retaining the amendment proposed  in  section 302,  IPC, it recommended inclusion of one more  clause  (d) after clause (c) in sub-section (2) thereof and at the  same time  recommended  deletion  of section 303,  IPC.  It  also recommended substitution of the existing section 57, IPC, by a  totally new section, the proviso whereto  has  relevance. The proposed proviso was as under:          "Provided that where a sentence of imprisonment for          life  is  imposed on conviction of a person  for  a          capital  offence,  or  where a  sentence  of  death          imposed  on a person has been commuted into one  of          imprisonment  for  life, such person shall  not  be          released from prison unless he had served at  least          fourteen years of imprisonment." The  reason  which impelled the Committee to  introduce  the above proviso was "That sometimes due to grant of  remission even  murderers sentenced or commuted to  life  imprisonment were released at the end                                                        868 of 5 to 6 years." The Committee, therefore, felt that such a convict should not be released unless he has served  atleast 14 years of imprisonment.  It is evident from the scheme  of the aforesaid recommendations that the proviso was  intended to  apply  to only those convicts who were convicted  for  a capital offence (this expression was defined by clause 15 of the  Bill recommending substitution of section 40,  IPC,  as ‘an  offence  for  which death is  one  of  the  punishments provided  by law’) or whose sentence of death  was  commuted into one of imprisonment for life and not to those who  were governed by the first part of the proposed section 302, IPC. It  was  pointed out by counsel that similar  benefit  would have  accrued  to offenders convicted for  offences  covered under section 305, 307 or 396 if the proposed sections  305, 307(b)  and 396(b) had come into being.  That, contends  the petitioner’s counsel, would have considerably narrowed  down the  scope of the proposed proviso to section 57,  IPC,  and consequently  the  rigour of the said provision  would  have fallen  on a tiny minority of offenders guilty of a  capital offence.   Pursuant  to  the  recommendations  made  by  the Committee,  two  bills, namely, the  IPC  (Amendment)  Bill, 1978,  came  to be introduced, the former  was  passed  with changes  by the Rajya Sabha on November 23, 1978  while  the

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latter was introduced in the Lok Sabha on November 8,  1978, and in the Rajya Sabha on December 5, 1978.  The proposal to add  a proviso to the proposed section 57, IPC did not  find favour  as  it  was thought that  the  said  subject  matter appropriately  related  to  Chapter XXXII of  the  Code  and accordingly  the  said provision was introduced  as  section 433A  in the Code.  While the amendments to the Code  became law with effect from December 18, 1978, the IPC  amendments, though  passed by the Rajya Sabha could not be  got  through the Lok-Sabha and lapsed.  It may here be mentioned that the IPC  Bill  as  approved by the  Rajya  Sabha  contained  the proposal  to divide section 302 into two parts, in  fact  an additional clause was sought to be introduced in the  second part thereof and sections 305, 307 and 396 were also  sought to  be amended as proposed by the Committee.  This in  brief is the legislative history.      In  the  backdrop  of  the  said  legislative  history, counsel  for the petitioner argued that a legislative  fraud was  practised  by  enacting section 433A of  the  Code  and failing  to carry out the corresponding changes in  sections 302,  305,  307, 396, etc., assured by the  passing  of  the Indian Penal Code (Amendment) Act, 1978, by the Rajya  Sabha on  November 23, 1978.  According to him it is evident  from the scheme of the twin Amendment Bills that the  legislative intent  was to apply the rigour of section 433A of the  Code to a small number of heinous                                                        869 crimes  which  fell  within the meaning  of  the  expression capital  offence.   It was to achieve  this  objective  that section  302,  IPC was proposed to be bifurcated so  that  a large number of murders would fall within the first part  of the  proposed provision which prescribed the  punishment  of life  imprisonment  only and thus fell beyond  the  mischief of section 433A of the Code. To buttress his submission  our attention  was invited to Annexure II to the petition  which is a copy of the letter dated July 10, 1979, written by  the Joint-Secretary  in  the Ministry of Home  Affairs  to  Home Secretaries   of   all  the  concerned   State   Governments explaining  the  purport of the newly  added  section  433A. After explaining that section 57, IPC, had a limited  scope, namely, calculating fractions of terms of imprisonment only, he proceeds to state in paragraph 3 of the letter as under:          "The  restrictions imposed by section 433A  applies          only  to those life convicts who are convicted  for          offences for which death is one of the  punishments          prescribed  by  law.   In  the  Indian  Penal  Code          (Amendment) Bill, 1978 as passed by the Rajya Sabha          and  now pending in the Lok Sabha, section  302  is          proposed  to be amended so as to provide  that  the          normal punishment for murder shall be  imprisonment          for  life  and  that  only  in  certain  cases   of          aggravating  circumstances  will  the  court   have          discretion to award death sentences."      Then in paragraph 4 he proceeds to clarify as under:          "Even  regarding  these  convicts  the  restriction          imposed  by section 433A is not absolute  for,  the          Constitutional power of the Governor under  Article          161   to  commute  and  remit   sentences   remains          unaffected  and  can be exercised in each  case  in          which  the  exercise of this  power  is  considered          suitable."      Then in paragraph 4 he proceeds to clarify as under:          "Even  regarding  these  convicts  the  restriction          imposed  by section 433A is not absolute  for,  the          Constitutional power of the Governor under  Article

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        161   to  commute  and  remit   sentences   remains          unaffected  and  can be exercised in each  case  in          which  the  exercise of this  power  is  considered          suitable." In  paragraph  6 of the detailed note appended to  the  said letter, the legal position was explained thus:          "It  may  be  pointed  out  that  the   restriction          introduced  by section 433A does not apply  to  all          life convicts.  It applies only to those  prisoners          who  are  convicted of a capital  offence  i.e.  an          offence  for which death is one of the  punishments          prescribed  by  law.  Once the  Indian  Penal  Code          (Amendment)   Bill  becomes  the   law,   offenders          sentenced                                                        870          under  proposed section 302(i) will not be  covered          by  this  provision as the offence will  not  be  a          capital  offence.  Thus in future  the  restriction          introduced  by section 433A will not be  applicable          to  them  and will, in effect, cover  only  a  very          small  number of cases.  Even in this small  number          of  cases the restriction will not in any way  curb          the  Constitutional  power to grant  remission  and          commutation vested in the President or the Governor          by virtue of Articles 72 and 161." There  can be no doubt that by this letter it was  clarified that  section  433A  of the Code will apply  to  only  those convicted of a capital offence and not to all life convicts. It is equally clear that the said provision was expected  to apply  to exceptionally heinous offences falling within  the definition  of ‘capital offence’ once the Indian Penal  Code (Amendment)  Bill became law. Section 433A  was,  therefore, expected  to  deny premature release  before  completion  of actual  14  years  of incarceration to  only  those  limited convicts   convicted   of  a  capital  offence,   i.e.,   an exceptionally heinous crime specified in the second part  of the  proposed  section 302, IPC. Lastly  it  clarifies  that section  433A  cannot  and does not in any  way  affect  the constitutional  power  conferred on  the  President/Governor under  ARticle  72/161  of  the  Constitution.   It  cannot, therefore,  be denied that this letter and the  accompanying note does give an impression that certain provisions of  the Indian  Penal  Code (Amendment) Boll were  interlinked  with section 433A of the Code.      Assuming  the Criminal Procedure Code (Amendment)  Bill and the Indian Penal Code (Amendment) Bill were intended  to provide an integrated scheme of legislation, can it be  said that  the failure on the part of the Lok Sabha to  pass  the letter renders the enactment of the former by which  section 433A  was introduced in the Code, ‘a legislative  fraud’  as counsel  had  liked  to call it or to use  a  more  familiar expression  ‘colourable  exercise  of  legislative   power’? Counsel  submitted that section 433A was got  introduced  on the statute book by deception, in that, when the former Bill was  made  law  an  impression  was  given  that  the   twin legislation  which  had already been cleared  by  the  Rajya Sabha on November 23, 1978 would in due course be cleared by the  Lok Sabha also so that the application of section  433A would be limited to capital offences only and would have  no application  to  a  large number of ‘lifers’.   It  must  be conceded that such would have been the impact if the  Indian Penal  Code (Amendment) Bill was passed by the Lok Sabha  in the form in which the Rajya and approved it.                                                        871      This is not a case of legislative incompetence to enact

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section  433A.  No  such submission was  made.  Besides  the question  of  vires  of section 433A of the  Code  has  been determined  by the Constitution Bench of this Court in  Maru Ram’s  case.  This Court repelled all the thrusts  aimed  at challenging the constitutional validity of section 433A. But counsel  submitted that the question was not  examined  from the   historical  perspective  of  the  twin   legislations. Counsel for the State submitted that it was not  permissible for  us to reopen the challenge closed by  the  Constitution Bench  on  the specious plea that a particular  argument  or plea  was  not  canvassed or made before  that  Bench.   The objection  raised  by counsel for the  State  Government  is perhaps not without substance but we do not propose to  deal with  it  because  even otherwise we see  no  merit  in  the submission  of the petitioner’s counsel.  It is only when  a legislature  which  has  no  power  to  legislate  frames  a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that  the legislation  so enacted is colourable legislation.  In  K.C. Gajapati  Narayan  Deo v. State of Orissa, [1954]  SCR 1 the Orissa  Agricultural Income-tax (Amendment) Act,  1950,  was challenged  on  the ground of colourable  legislation  or  a fraud on the Constitution as its real purpose was to  effect a  drastic reduction in the amount of  compensation  payable under  the  Orissa Estates Abolition Act, 1952.   The  facts were that a Bill relating to the Orissa Abolition Act,  1952 was  published  in  the  Gazette on  January  3,  1950.   It provided  that any sum payable for  agricultural  income-tax for  the  previous year should be deducted  from  the  gross asset  of  an estate for working out the net income  on  the basis whereof compensation payable to the estate owner could be  determined.   Thereafter on January 8, 1950, a  Bill  to amend   the  Orissa  Agricultural  Income-tax,   1947,   was introduced  to enhance the highest rate of tax from 3  annas to  4 annas in a rupee and to reduce the highest  slab  from Rs. 30,000 to Rs. 20,000. The next Chief Minister,  however, dropped this Bill and introduced a fresh Bill enhancing  the highest rate to 12 annas 6 pies in a rupee and reducing  the highest  slab to rs. 15,000 only.  On the same becoming  law it was challenged on the ground that the real purpose of the legislation  was  to  drastically  reduce  the  compensation payable to the estate owners.  Mukherjea, J., who spoke  for the Court observed as under:          "It  may  be  made clear at  the  outset  that  the          doctrine of colourable legislation does not involve          any  question  of bona fides or mala fides  on  the          part  of  the  legislature.   The  whole   doctrine          resolves itself into the question of competency  of          a particular legislature to enact a particular law.          If                                                        872          the  legislature is competent to pass a  particular          law,  the  motives  which impelled it  to  act  are          really  irrelevant.   On  the other  hand,  if  the          legislature  lacks  competency,  the  question   of          motive does not arise at all.  Whether a statute is          constitutional or not is thus always a question  of          power." Thus  the whole doctrine resolves itself into a question  of competency  of  the  concerned  legislature  to  enact   the impugned  legislation.  If the legislature has  transgressed the  limits  of  its powers and  if  such  transgression  is indirect,  covert  or  disguised,  such  a  legislation   is described  as  colourable  in  legal  parlance.   The   idea conveyed by the use of the said expression is that  although

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apparently a legislature in passing the statute purported to act within the limits of its powers, it had in substance and reality  transgressed  its powers, the  transgression  being veiled  by  what  appears on close scrutiny  to  be  a  mere pretence  or  disguise.   In  other words  if  in  pith  and substance  the  legislation does not belong to  the  subject falling  within the limits of its power but is  outside  it, the mere form of the legislation will not be determinate  of the  legislative  competence.  In Sonapur Tea  Co.  Ltd.  v. Must.  Mazirunnessa,  [1962]  1 SCR 724  it  was  reiterated relying  on Gajapati’s case that the doctrine of  colourable legislation  really postulates that legislation attempts  to do  indirectly what it cannot do directly.  Such is not  the case before us.  It is no body’s contention that  Parliament was  not competent to amend the Criminal Procedure  Code  by which  section  433A  was  inserted.   Whether  or  not  the connecting Indian Penal Code (Amendment) Bill ought to  have been  cleared or not was a matter left to the wisdom of  the Lok  Sabha.  Merely because the Criminal Procedure Bill  was made  law  and the Indian Penal Code  (Amendment)  Bill  was passed by the Rajya Sabha did not obligate the Lok Sabha  to clear it.  The Lok  Sabha to clear it.  The Lok Sabha  could have  its  own  views  on the  proposed  Indian  Penal  Code amendments.   It  may  agree  with  the  executive’s  policy reflected in the Bill, with or without modifications, or not at  all.   Merely  because in  the  subsequent  instructions issued  by the letter of July 10, 1979 and the  accompanying note (Annex. II) the Joint-Secretary had interlinked the two Bills,  the Lok Sabha was under no obligation to  adopt  the measure as such representation could not operate as estoppel against  it.  Even the indirect attempt on the part  of  the High Court of Himachal Pradesh in the ragging case to  force the State Government to legislate, State of Himachal Pradesh v. A Parent of a student of Medical College, Simla, [1985] 3 SCC  169 was disapproved by this Court as a matter  falling, outside  the functions and duties of the judiciary.  It  is, therefore,  obvious  that no question of mala fides  on  the part of the legislature was involved in the enactment of one legislation and failure to                                                        873 enact another.  There is no question of ‘legislative  fraud’ or ‘colourable legislation’ involved in the backdrop of  the legislative history of section 433A of the Code as argued on behalf of the petitioner.      Counsel  for  the Petitioner, However,  tried  to  seek support  form  the Privy Council decision in W.R.  Moram  v. Deputy  Commissioner of Taxation for N.S.W., [1940]  AC  838 Wherein  the  question  to be  considered  was  whether  the legislative scheme was a colourable one forbidden by section 5(ii) of the Australian Constitution.  There was no  attempt to disguise the scheme as it was fully disclosed.  The Privy Council, while holding that the scheme was not a  colourable legislation,  observed  that ‘where there  is  admittedly  a scheme  of  proposed legislation, it seems to  be  necessary when  the ‘pith and substance’ or ‘scope and effect’ of  any one  of  the  Acts is under  consideration,  to  treat  them together and to see how they interact’.  But that was a case where  the scheme was carried out through  enactments passed by  the concerned legislatures.  It is in that context  that the above observations must be read and understood.  In  the present case also if both the Bills had become law,  counsel would  perhaps  have  been justified in  demanding  that  in understanding  or construing one legislation or  the  other, the  scheme  common  to both must be kept  in  view  and  be permitted to interact.  But where the linkage does not exist

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on  account  of the Indian Penal Code (Amendment)  Bill  not having  become law we are unable to appreciate  how  section 433A  can  be read down to apply to only  those  classes  of capital offences to which it would have applied had the said Bill  been passed by the Lok Sabha in the terms in which  it was  approved by the Rajya Sabha.  The language  of  section 433A  is  clear  and  unambiguous  and  does  not  call  for extrinsic  aid  for  its  interpretation.   To  accept   the counsel’s submission to read down or interpret section  433A of  the  Code  with the aid of the change  proposed  by  the Indian  Penal  Code  (Amendment) Bill  would  tantamount  to treating the provisions of the said Bill as forming part  of the  Indian Penal Code which is clearly  impermissible.   To put  such an interpretation with the aid of  such  extrinsic material  would result in violence to the plain language  of section  433A  of the Code.  We are,  therefore,  unable  to accept even this second limb of the contention.      The law governing suspension, remission and commutation of sentence is both statutory and constitutional.  The stage for  the exercise of this power generally speaking is  post- judicial,  i.e., after the judicial process has come  to  an end.   The  duty  to  judge and  to  award  the  appropriate punishment  to  the  guilty is  a  judicial  function  which culminates by a judgment pronounced in accordance with  law. After                                                        874 the  judicial function thus ends the executive  function  of giving  effect to the judicial verdict commences.  We  first refer to the statutory provisions.  Chapter III of IPC deals with  punishments.  The punishments to which  the  offenders can  be  liable are enumerated in section  53,  namely,  (i) death  (ii)  imprisonment  for life  (iii)  imprisonment  of either   description,  namely,  rigorous  or   simple   (iv) forfeiture of property and (v) fine. Section 54 empowers the appropriate  government to commute the punishment  of  death for any other punishment.  Similarly section 55 empowers the appropriate   government   to  commute   the   sentence   of imprisonment for life for imprisonment of either description for  a  term not exceeding 14 years.  Chapter XXXII  of  the Code, to which section 433A was added, entitled  ‘Execution, Suspension, Remission and Commutation of sentences’ contains sections  432  and  433 which  have  relevance;  the  former confers  power on the appropriate government to suspend  the execution of an offender’s sentence or to remit the whole or any  part of the punishment to which he has  been  sentenced while the latter confers power on such Government to commute (a)  a  sentence  of death for any other  punishment  (b)  a sentence  of imprisonment for life, for imprisonment  for  a term  not exceeding 14 years of for fine (c) a  sentence  of rigorus imprisonment for simple imprisonment or for fine and (d)  a sentence of simple imprisonment for fine.  It  is  in the  context of the aforesaid provisions that we  must  read section 433A which runs as under:          "433A.   Restriction  on  powers  of  remission  or          commutation   in   certain    cases-Notwithstanding          anything contained in Section 432, where a sentence          of  imprisonment for life is imposed on  conviction          of  a person for an offence for which death is  one          of  the  punishments provided by law,  or  where  a          sentence  of  death imposed on a  person  has  been          commutted   under   section   433   into   one   of          imprisonment  for  life, such person shall  not  be          released from prison unless he had served at  least          fourteen years of imprisonment." The    section   begins   with   a    non-obstante    clause

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notwithstanding  anything  contained  in  section  432   and proceeds  to  say that where a person is  convicted  for  an offence  for which death is one of the punishments  and  has been  visited with the lesser sentence of  imprisonment  for life  or  where the punishment of an offender  sentenced  to death  has  been  commuted under section  433  into  one  of imprisonment  for life, such offender will not  be  released unless he has served at least 14 years of imprisonment.  The reason  which  impelled  the  legislature  to  insert   this provision has been stated earlier.  Therefore, one who could have been                                                        875 visited with the extreme punishment of death but on  account of the  sentencing court’s generosity was sentenced  to  the lesser  punishment of imprisonment for life and another  who actually was sentenced to death but on account of  executive generosity  his sentence was commutted under section  433(a) for  imprisonment for life have been treated  under  section 433A  as  belonging to that class of prisoners  who  do  not deserve  to be released unless they have completed 14  years of actual incarceration.  Thus the effect of section 433A is to restrict the exercise of power under sections 432 and 433 by  the stipulation that the power will not be so  exercised as  would enable the two categories of convicts referred  to in  section  433A to freedom before they have  completed  14 years  of  actual  imprisonment.  This  is  the  legislative policy which is clearly discernible from the plain  language of  section  433A of the Code. Such prisoners  constitute  a single  class  and have, therefore, been  subjected  to  the uniform  requirement  of  suffering  atleast  14  years   of internment.      Counsel  for the petitioner next submitted  that  after this  court’s  decision in Bhagirath’s case  permitting  the benefit  of  set  off under section 428 in  respect  of  the detention period as an undertrial, the ratio of the decision in Godse’s case must be taken as impliedly disapproved.   We see  no  basis  for this submission.  In  Godse’s  case  the convict  who  was sentenced to transportation for  life  had earned  remission for 2963  days during his internment.   He claimed  that in view of section 57 read with  section  53A, IPC, the total period of his incarceration could not  exceed 20  years  which he had completed, inclusive  of  remission, and,   therefore,  his  continued  detention  was   illegal. Section 57, IPC reads as follows:          "57.   Fractions   of   terms   of    punishment-In          calculating  fractions  of  terms  of   punishment,          imprisonment   for  life  shall  be   reckoned   as          equivalent to imprisonment for twenty years." The  expression ‘imprisonment for life’ must be read in  the context  of section 45, IPC. Under that provision  the  word ‘life’ denotes the life of a human being unless the contrary appears from the context.  We have seen that the punishments are  set out in section 53, imprisonment for life being  one of  them.   Read  in  the  light  of  section  45  it  would ordinarily  mean imprisonment for the full or complete  span of  life.  Does section 57 convey to the  contrary?  Dealing with  this contention based on the language of  section  57, this  Court  observed  in Godse’s case at  pages  444-45  as under:                                                        876          "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

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        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 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." This  interpretation of section 57 gets strengthened  if  we refer to sections 65, 116, 120 and 511, of the Indian  Penal Code  which  fix  the term of imprisonment thereunder  as  a fraction of the maximum fixed for the principal offence.  It is  for  the purpose of working out this  fraction  that  it became necessary to provide that imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years.   If such  a  provision  had not been made  it  would  have  been impossible to work out the fraction of an in-definite  term. In  order  to work out the fraction of terms  of  punishment provided in sections such as those enumerated above, it  was imperative  to  lay  down  the  equivalent  term  for   life imprisonment.      The second contention urged before the Court in Godse’s case  was based on the Bombay Rules governing the  remission system  framed in virtue of the provisions contained in  the Prisons Act, 1894.  This Court pointed out that the  Prisons Act  did not confer on any authority a power to  commute  or remit  sentences.  The Remission Rules made thereunder  had, therefore,  to  be confined to the scope and ambit  of  that statute  and could not be extended to other statutes.  Under the Bombay Rules three types of remissions for good  conduct were  allowed  and for working them out  transportation  for life  was  equated  to  15  years  of  actual  imprisonment. Dealing  with  Godse’s plea for premature   release  on  the strength  of these rules this Court observed at page 447  as under:          "The rules framed under the Prisons Act enable such          a person to remission ordinary, special and  State-          and  the  said  remissions  will  be  given  credit          towards his term of imprisonment.  For the  purpose          of working out the remis-                                                        877          sions  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 an appropriate  Government  to          remit  the sentence under section 401 (now  section          432)  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 province  of  the          appropriate  Government;  and in this  case  it  is          admitted  that  though the  appropriate  Government          made  certain remissions under section 401  of  the          Code  of Criminal Procedure, it did not  remit  the          entire sentence." On this line of reasoning the submission of counsel that  if

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the Court were to take the view that transportation for life or imprisonment for life enures till the last breath of  the convict  passes out, the entire scheme of remissions  framed under  the  Prisons Act or any like statute  and  the  whole exercise  of  crediting  remissions to the  account  of  the convict would collapse, was spurned.  This Court came to the conclusion that the Remission Rules have a limited scope and in   the   case  of  a  convict   undergoing   sentence   of transportation for life or imprisonment for life it acquires significance  only if the sentence is commuted or  remitted, subject  to  section  433A of the Code  or  in  exercise  of constitutional power under Articles 72/161.      In  Maru Ram’s case the Constitution  Bench  reaffirmed the  ratio  of Godse’s case and held that the  nature  of  a life   sentence  is  incarceration  until  death;   judicial sentence  for  imprisonment for life cannot be  in  jeopardy merely because of long accumulation of remissions.   Release would  follow  only upon an order under section 401  of  the Criminal Procedure Code, 1898 by the appropriate  Government or  on a clemency order in exercise of power under  Articles 72/161  of the Constitution.  At page 1220 the  Constitution Bench expressed itself thus:          "Ordinary where a sentence is for a definite  term,          the calculus of remissions may benefit the prisoner          to   instant  release  at  that  point  where   the          substraction result is zero.                                                        878          Here,  we are concerned with life imprisonment  and          so  we  come upon another concept  bearing  on  the          nature  of sentence which has been  highlighted  in          Godse’s case.  Where the sentence is  indeterminate          or   of   uncertain   duration,   the   result   of          substraction from an uncertain quantity is still an          uncertain  quantity  and release  of  the  prisoner          cannot   follow   except   on   some   fiction   of          quantification   of   a   sentence   of   uncertain          duration." Referring  to  the facts of Godse’s case and  affirming  the view that the sentence of imprisonment for life enures  upto the  last  breath of the convict, this  Court  proceeded  to estate as under:          "Since  death  was uncertain, deduction by  way  of          remission  did  not  yield any  tangible  date  for          release  and  so the prayer of Godse  was  refused.          The  nature  of a life  sentence  is  incarceration          until death, judicial sentence of imprisonment  for          life  cannot be in jeopardy merely because  of  the          long accumulation of remissions." It is, therefore, clear from the aforesaid observations that unless  the  sentence for life imprisonment is  commuted  or remitted  as  stated earlier by  the  appropriate  authority under the provisions of the relevant law, a convict is bound in  law to serve the entire life term in prison;  the  rules framed under the Prisons Act or like statute may enable such a  convict to earn remissions but such remissions  will  not entitle  him to release before he has completed 14 years  of incarceration in view of section 433A of the Code unless  of course  power has been exercised under Article 7/161 of  the Constitution.      It  will thus be seen from the ratio laid down  in  the aforesaid  two cases that where a person has been  sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission  rules have  a limited scope and must be confined to the scope  and ambit  of  the said rules and do  not  acquire  significance

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until  the sentence is remitted under section 432, in  which case the remission would be subject to limitation of section 433A of the Code, or constitutional power has been exercised under  Article 72/161 of the Constitution.   In  Bhagirath’s case the question which the Constitution Bench was  required to  consider was whether a person sentenced to  imprisonment for  life can claim the benefit of section 428 of  the  Code which,  inter  alia provides for setting off the  period  of detention undergone by the accused as an undertrial  against the sentence of                                                        879 imprisonment ultimately awarded to him. Referring to section 57,  IPC,  the  Constitution  Bench  reiterated  the   legal position as under:          "The   provision  contained  in  Section  57   that          imprisonment  for  life  has  to  be  reckoned   as          equivalent to imprisonment for 20 years is for  the          purpose  of  calculating  fractions  of  terms   in          punishment.   We cannot press that  provision  into          service for a wider purpose." These  observations are consistent with the ratio laid  down in Godse and Maru Ram’s cases.  Coming next to the  question of set off under section 428 of the Code, this Court held:          "The   question  of  setting  off  the  period   of          detention undergone by an accused as an  undertrial          prisoner against the sentence of life  imprisonment          can  arise  only  if  an order  is  passed  by  the          appropriate authority under section 432 of  section          433  of  the Code.  In the absence or  such  order,          passed  generally or specially, and apart from  the          provisions,  if  any of the relevant  Jail  Manual,          imprisonment for life would mean, according to  the          rule  in Gopal Vinayak Godse, imprisonment for  the          remainder of life." We fail to see any departure from the ratio of Godse’s case; on  the  contrary  the afore-quoted  passage  clearly  shows approval  of that ratio and this becomes further clear  from the  final  order  passed by the Court  while  allowing  the appeal/writ petition.  The Court directed that the period of detention  undergone  by  the  two  accused  as   undertrial prisoners  would  be set off against the  sentence  of  life imprisonment  imposed upon them, subject to  the  provisions contained  in section 433A and, ‘provided that  orders  have been  passed by the appropriate authority under section  433 of  the Code of Criminal Procedure’.  These directions  make it clear beyond any manner of doubt that just as in the case of  remissions so also in the case of set off the period  of detention  as undertrial would enure to the benefit  of  the convict  provided the appropriate Government has  chosen  to pass an order under sections 432/433 of the Code.  The ratio of Bhagirath’s case, therefore, does not run counter to  the ratio of this Court in the case of Godse or Maru Ram.      Under  the Constitutional Scheme the President  is  the Chief Executive of the Union of India in whom the  executive power  of the Union vests.  Similarly, the Governor  is  the Chief Executive of the                                                        880 concerned State and in him vests the executive power of that State.   Articles  72 and 161 confer the clemency  power  of pardon,  etc.,  on the President and  the  State  Governors, respectively.   Needless  to say  that  this  constitutional power  would  override  the  statutory  power  contained  in sections  432 and 433 and the limitation of section 433A  of the  Code as well as the power conferred by sections 54  and 55,  IPC.  No doubt, this power has to be exercised  by  the

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President/Governor   on  the  advice  of  his   Council   of Ministers.   How  this power can be  exercised  consistently with Article 14 of the Constitution was one of the Questions which  this Court was invited to decide in Maru Ram’s  case. In  order  that there may not be  allegations  of  arbitrary exercise of this power this Court observed at pages  1243-44 as under:          "The  proper thing to do, if Government is to  keep          faith  with the founding fathers, is to make  rules          for its own guidance in the exercise of the  pardon          power keeping, ofcourse, a large residuary power to          meet  special  situations or  sudden  developments.          This  will exclude the vice of discrimination  such          as may arise where two persons have been  convicted          and sentenced in the same case for the same  degree          of guilt but one is released and the other refused,          for  such  irrelevant reasons as  religion,  caste,          color or political loyalty." Till  such rules are framed this Court thought  that  extant remission  rules framed under the Prisons Act or  under  any other  similar  legislation  by the  State  Governments  may provide  effective  guidelines of  a  recommendatory  nature helpful  to  the  Government  to  release  the  prisoner  by remitting the remaining term.  It was, therefore,  suggested that  the said rules and remission schemes be continued  and benefit  thereof  be extended to all those who  come  within their  purview.  At the same time the Court was  aware  that special cases may require different considerations and  ‘the wide  power of executive clemency cannot be bound down  even by   self-created  rules’.   Summing  up  its  findings   in paragraph 10 at page 1249, this Court observed:          "We  regard it as fair that until fresh  rules  are          made  in  keeping  with  the  experience  gathered,          current social conditions and accepted  penological          thinking-a desirable step, in our view-the  present          remissions  and  release schemes  may  usefully  be          taken  as  guidelines  under  ARticles  72/161  and          orders  for  release passed.  We cannot  fault  the          Government,   if   in   some   intractably   savage          delinquents, section                                                        881          433A is itself treated as a guideline for  exercise          of Articles 72/161.  These observations of ours are          recommendatory  to  avoid a hiatus, but it  is  for          Government, Central or State, to decide whether and          why the current Remission Rules should not  survive          until replaced by a more wholesome scheme." It will be obvious from the above that the observations were purely recommendatory in nature.      In  Kehar Singh’s case on the question of  laying  down guidelines for the exercise of power under Article 72 of the Constitution this Court observed in paragraph 16 as under:          "It seems to us that there is sufficient indication          in  the terms of Article 72 and in the  history  of          the  power enshrined in that provision as  well  as          existing case-law, and specific guidelines need not          be spelled out.  Indeed, it may not be possible  to          lay   down   any  precise,  clearly   defined   and          sufficiently  channelised guidelines, for  we  must          remember that the power under Article 72 is of  the          widest amplitude, can contemplate a myriad kind  of          and  categories of cases with facts and  situations          varying from case to case, in which the merits  and          reasons  of  State may be  profoundly  assisted  by          prevailing occasion and passing time.  And it is of

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        great significance that the function itself  enjoys          high status in the constitutional scheme." These  observations do indicate that the Constitution  Bench which  decided Kehar Singh’s case was of the view  that  the language   of   Article  72  itself   provided    sufficient guidelines  for the exercise of power and having  regard  to its  wide  amplitude and the status of the  function  to  be discharged  thereunder, it was perhaps unnecessary to  spell out  specific  guidelines since such guidelines may  not  be able to conceive of all myraid kinds and categories of cases which may come up for the exercise of such power.  No  doubt in Maru Ram’s case the Constitution Bench did recommend  the framing  of  guidelines  for the  exercise  of  power  under Articles  72/161 of the Constitution.  But that was  a  mere recommendation  and not a ratio decidendi having  a  binding effect on the Constitution Bench which decided Kehar Singh’s case.   Therefore, the observation made by the  Constitution Bench  in Kehar Singh’s case does not upturn any ratio  laid down in Maru Ram’s case.  Nor has the Bench in Kehar Singh’s case said anything with regard to using the                                                        882 provisions  of extent Remission Rules as guidelines for  the exercise of the clemency powers.      It  is  true  that  Articles 72/161  make  use  of  two expressions  ‘remissions’  with  regard  to  punishment  and ‘remit’  in  relation  to sentence but we do  not  think  it proper  to  express  any  opinion  as  to  the  content  and amplitude  of these two expressions in the abstract  in  the absence  of  a fact-situation.  We,  therefore,  express  no opinion  on this question formulated by the learned  counsel for the petitioner.      Lastly the learned counsel for the petitioner raised  a hypothetical  question whether it was permissible in law  to grant  conditional premature release to a life convict  even before completion of 14 years of actual imprisonment,  which release  would tantamount to the prisoner serving  time  for the  purpose of section 433A  of the Code? It  is  difficult and  indeed  not  advisable to answer  such  a  hypothetical question  without  being  fully  aware  of  the  nature   of conditions  imposed for release.  We can do no  better  than quote  the following observations made at page 1247 in  Maru Ram’s case:          "........the expression ‘prison’ and ‘imprisonment’          must  receive a wider connotation and  include  any          place  notified  as such  for  detention  purposes.          ‘Stone-walls  and iron bars do not a  prison-make’:          nor are ‘stone walls and iron bars’ a sine qua  non          to  make a jail. Open jails are capital  instances.          any  life  under the control of the  State  whether          within  high-walled or not may be a prison  if  the          law  regards  it as such.   House  detentions,  for          example, Palaces, where Gandhiji was detained  were          prisons.  Restraint on freedom under the prison law          is the test.  Licencsed where instant re-capture is          sanctioned  by the law and likewise  parole,  where          the parole is not free agent, and other  categories          under  the invisible fetters of the prison law  may          legitimately  be  regarded as  imprisonment.   This          point   is  necessary  to  be  cleared   even   for          computation of 14 years under section 433A. Therefore,  in each case, the question whether the grant  of conditional premature release answers the test laid down  by this Court in the afore-quoted passage, would depend on  the nature  of the conditions imposed and the  circumstances  in which the order is passed and is to be executed.  No general

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observation can be made and we make none.                                                        883      In   paragraph  10  of  the  memorandum  of  the   Writ petition.,  three  reasons have been assigned  for  invoking this   Court’s   jurisdiction  under  Article  32   of   the Constitution,  viz.,  (i)  the questions  involved  in  this petition  will  affect  the right of a large  body  of  life convicts  seeking  premature  release;  (ii)  this   Court’s judgment  in Bhagirath’s case deviated from the  ratio  laid down  in  Godse’s  case and, therefore, the  entire  law  of remissions  needed  a review; and (iii) the  High  Court  of Rajasthan  had refused to examine the merits of the  various important  questions  of  law raised before it.   It  is  on account of the fact that this petition was in the nature  of a  representative  petition touching the rights of  a  large number of convicts of the categories referred to  in section 433A  of  the  Code, that we have  dealt  with  the  various questions  of law in extenso.  Otherwise the petition  could have been disposed of on the narrow ground that even  though in  view  of sections 433A of the  Code,  premature  release could not be ordered under sections 432/433 of the Code read with  the 1958 Rules until the petitioner had  completed  14 years   of  actual  imprisonment,  his  release   could   be considered  in exercise of powers under Articles  72/161  of the  Constitution  treating the 1958  Rules  guidelines,  if necessary.      The relief claimed in the petition is two-fold, namely, (a)  to grant a mandamus to the appropriate  Government  for the  premature  release  of  the  petitioner  by  exercising constitutional power with the aid of 1958 Rules and  (b)  to declare the petitioner’s continued detention as illegal  and void.   The petitioner has not completed 14 years of  actual incarceration and as such he cannot invoke sections 432  and 433 of the Code.  His continued detention is consistent with section  433A of the Code and there is nothing on record  to show that it is otherwise illegal and void.  The outcome  of his  clemency application under the constitution is not  put in issue in the present proceedings if it has been  rejected and if the same is pending despite the directive of the High Court  it  would be open to the petitioner to  approach  the High  Court  for  the compliance of its  order.   Under  the circumstance no mandamus can issue.  The writ petition must, therefore, fail.  It is hereby dismissed.  Rule discharged. G.N.                                     Petition dismissed.                                                        884