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PETITIONER: BHAGIRATH & ORS

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT16/04/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) MISRA RANGNATH DESAI, D.A. REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J)

CITATION:  1985 AIR 1050            1985 SCR  (3) 743  1985 SCC  (2) 580        1985 SCALE  (1)719  CITATOR INFO :  E          1991 SC1792  (4,9,12,17)

ACT:      Code of  Criminal Procedure  1973. Section 428. Persons sentenced  to imprisonment for life-whether entitled to set- Off their  under trial  period of  detention  against  their sentence.      Persons   sentenced    to   life   Imprisonment-whether sentenced to imprisonment for term‘      Interpretation of Statutes:      Marginal note of Section-Use of in interpretation      Sentencing      Punishment no longer retributory but reformative.      Words & Phrases:      Term-Meaning of-Criminal  Procedure Code  1973  Section 428.

HEADNOTE:      The appellant filed a writ petition in the High Court , contending that  his case  be referred  for the order of the State Administration  under Paragraph  516- of  the   Punjab Jail Manual  ,   on the  ,  ground that  though sentenced to life imprisonment ,  he had under gone a period of detention in Jail  amounting to  14 years  together with the remission earned by him and that he should be released.      The aforesaid  petition was  rejected by a Single Judge following the  decision of  this Court  in Kartar  Singh  v. State of  Haryana ,  [1983] 1 SCR 445 on the ground. That in computing: the period of 14 years ,  the period spent by the convict in  the jail  as an  undertrial prisoner  cannot  be taken into  account because  section  428  of  the  Code  of Criminal Procedure which allowed such a set-off applied only when an accused had sentenced to imprisonment for a term , ’ and that  the sentence  of  life  imprisonment  was  not  an ’imprisonment for a term’.      In the  companion  writ  petition  ,    the  petitioner contended that the remis- 744 sions earned  by him as a convict must be taken into account

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while computing the period of 14 years under paragraph 516-B of the  Punjab Jail  Manual ,   and  that in  any case ,  ht ought to be given the benefit of sections 432 and 433 of the Code of  Criminal Procedure  because ,   his  case merits  a favorable consideration by the State Administration.      Allowing the Appeal and Writ Petition , ^      HELD: 1.  The period  of detention undergone by the two accused as  undertrial prisoners ,  shall be set-off against the sentence  of  life  imprisonment  imposed  upon  them  , subject to  the provision  contained in  section 433A  and , provided that  orders have  been passed  by the  appropriate authority under  section 432  or section  433 of the Code of Criminal Procedure. [753C-D]      2. The  fact that  the term  of life is of an uncertain duration does  not justify the conclusion that  the sentence of imprisonment for life. is not for a term . [752C] 3 There can possibly  be no  dispute that a person sentenced to life imprisonment is sentenced to imprisonment. The term to which such person  has been  sentenced b  the term  of  his  life- Therefore a  person who  is sentenced to life imprisonment , is sentenced to imprisonment for a term. [752C]      4. Under  section 432 of the Code of Criminal Procedure ,   the appropriate  Government has  the power  to remit the whole or  any part  of the  punishment to which a person has been sentenced.  Under section  433  of  the  Code  ,    the appropriate Government has the power to commute the sentence of imprisonment  for life  to imprisonment  for a  term  not exceeding fourteen  year or to fine. 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-r section 432 or section 433 of the Code.  In the  absence of such an order passed generally or specially  ,   and apart from the provisions if any ,  of the relevant Jail Manual ,  imprisonment for life would mean imprisonment for remainder of life. [750D-F]      5. The assumption that the word term’ implies a concept of ascertainability  or conveys  a  sense  of  certainty  is contrary to  the letter  of the  law ,   as found in section 428. Even the marginal note to the section does not bear out that assumption. It rather belies it. [748F]      6. Marginal notes are now legislative and not editorial exercises. The  marginal note  of section 428 shows that the object  of   the  Legislature  in  enacting  the  particular provision was  to provide  that  ’the  period  of  detention undergone by  the accused’  should be  ’set off  against the sentence of  imprisonment’ imposed  upon him.  There are  no words  of  limitation  either  in  the  section  or  in  its marginal note  which would justify restricting the plain and natural meaning of 745 the word ’term’ so as to comprehend only sentences which are imposed for a  fixed or ascertainable period. [748F-G]      7. To  say that a sentence of life imprisonment imposed upon an  accused is a sentence for the term of his life does offence neither  to grammar  nor to the common understanding of the  word ’term  . To say otherwise would offend not only against the  language of  the statute but against the spirit of the  law ,   that  is to say ,  the object with which the law was  passed.A large number of cases in which the accused suffer long  undertrial detentions are cases punishable with imprisonment for life. Usually ,  those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny  the benefit  of section  428 to them is to withdraw

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the application  of a  benevolent  provision  from  a  large majority of  cases in which such benefit would be needed and justified. [748H; 748A-B]      8. Equity  sustains law  and the  twain must meet. They cannot run  in parallel  streams.  Equitable  considerations must  have   an  important  place  in  the  construction  of beneficient provisions  ,   particularly  in  the  field  of criminal law.  To exclude  such considerations  is to denude law s benevolence of its true and lasting content. [752F]              9.  Graver the  crime ,  longer the sentences , greater the  need for  set-offs and  remissions. Punishments are no longer retributory. They are reformative. [752F]      Kartar Singh v. State of Haryana [1983] 1 SCR 445 over- ruled ,      Sukhlal Hansda  v. State  of West Bengal Writ Petitions (Crl.) 1128-29  of 1982  ,  Gopal Vinayak Godse v. The Slate of Maharashtra  [l961] 3  SCR 440 ,  444 & Maru Ram v. Union of India [1981] I SCR 1196 referred.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 754 Of 1983      From the  judgment and Order dated 5-7-1983 of the High (’court of Delhi in Crl. Misc. (Main) No. 499 of 1983.                             AND            Writ Petition (Cd.) No. 1265 of 1982.      (Under Article 32 of the Constitution of India)      Mukul Mudgal  for the  Appellant in Crl. Appeal No. 754 of 1983      R.K. Jain  ,   R.P. Singh  ,  Suman Kapoor ,  D.S.Mehra and Miss 746 Sangeeta Aggarwal  for the  Petitioner in  W.P. No.  1266 of 1982.      M.S. Gujarat  ,   G.D. Gupta  ,   R.N. Poodar  and Miss Halida khatun ,  for the Respondent.          The Judgment of the Court was delivered by          CHANDRACHUD ,  C.J. We have before us an appeal and a writ  petition ,  which are filed by two persons sentenced to life imprisonment for the offence of murder. They contend that they  are entitled to the benefit of Section 428 Or the Code of  Criminal Procedure  ,   that is  to say ,  that the period  of  detention  undergone  by  them  prior  to  their conviction as  undertrial prisoners  must be off against the sentence of life imprisonment imposed upon them.      The appellant  ,   Bhagirath ,  filed a petition in the Delhi High  Court asking that his case be referred for the-e orders of  the Delhi Administration under paragraph 516-B of the Punjab  Jail Manual  since ,   though  sentenced to life imprisonment ,   ha  had undergone  a period of detention in Jail amounting  to 14  years together  with  the  remissions earned by  him.A learned  Single Judge  of  the  High  Court rejected that  petition on  the ground  that ,  in computing the period  of 14 years ,  the period sent by the convict in the jail  as an  under trial  prisoner cannot  be taken into account because ,  section 428 of the Code which allows such a set off applies only when an accused has been sentenced to imprisonment for  a term’  ,    and  the  sentence  of  life imprisonment is  not an imprisonment ‘for a term’. In coming to the  conclusion that  section 428  has no  application to cases which  an accused  is sentenced to life imprisonment , the learned  Judge relied  upon a  judgment of this Court in Kartar Singh v. State of Haryana.(’)

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            The Petitioner in the companion writ petition , Rakesh Kaushik ,  has a somewhat similar grievance ,  though he has  needlessly  introduced  extraneous  matters  in  his pleadings. One  of his  contentions is  that the  remissions earned by him as a convict must be taken (1) [1983] S.C.R. 445 747 into account  while computing  the period  of 14 years under para- graph  516-B of  the Punjab  jail Manual.  He contends also ,  that in any case ,  he ought to be given the benefit of sections  432 and  433 of  the Code  because ,   his case merits   a    favourable   consideration    by   the   Delhi Administration. In  support of his case ,  he relies upon an order dated  March 3 ,  1982 passed by this Court in Sukhlal Hansda v.  State  of  West  Bengal.  (1)  According  to  the counter-affidavit filed  by the  Deputy Secretary  (Home) of the Delhi  Administration ,  the petitioner’s case cannot be considered for  petitioner’s release  because he has not yet undergone  14   years  of   imprisonment  ,    inclusive  of remissions earned by him.      First ,   We  would prefer  to interpret section 428 of the Code  of the Criminal Procedure on its own terms ,  that is ,   divorced from considerations arising under the Punjab Jail Manual or any other Jail Manual. The Provisions of Jail Manuals vary  from State  to State.  Therefore ,   questions arising  under   those  Manuals  cannot  be  mixed  up  with questions arising  under the Code ,  which is the law of the land. Section 428 of the Code reads thus:           "Period of detention undergone by the undergone by      the accused  to be  set off  against  the  sentence  of      imprisonment , -           Where an  accused person  has ,   on  conviction ,      been sentenced  to imprisonment for a term ,  not being      imprisonment in  default of  payment of  fine  ,    the      period of  detention ,   if any undergone by him during      the investigation  ,  inquiry or trial of the same case      and before  the date of such conviction ,  Shall be set      off against  the term of imprisonment imposed on him on      such conviction  ,  and the liability of such person to      undergo  imprisonment   on  such  conviction  shall  be      restricted to  the reminder ,  if any ,  of the trem of      imprisonment imposed on him."      The neat  and ,   we believe ,  the simple question for decision is  whether imprisonment  for life  is imprisonment "for a  terms". The reason why it is urged that imprisonment for life  is not  imprisonment for a term is that the latter expression comprehends  only imprisonments  for  a  fixed  , certain and  ascertainable period  of time like six months , two years ,  five years and so on. Since   the sentence (1) Writ Petitions (Cod.) Nos. 1128-26 of 1982 748 of life  imprisonment ,   as  held by  this Court  in  Gopal Vinayak Godse  v. The  Stale of  Maharashtra ,    (1)  is  a sentence for  life and nothing less and since ,  the term of life  is   itself  Uncertain   ,     the  sentence  of  life imprisonment is  for an  uncertain term  ,  that is to say , that it is not imprisonment for a term      So goes  the argument.  So does  it go  but it fails to carry much  conviction. Life is uncertain. In more ways than one. Who knows what good may come tomorrow and how many good tomorrows there  are still  to go  ? But  ,    philosophical digressions apart  ,  especially optimistic ,  the fact that the term  of life  is of  an  uncertain  duration  does  not justify the conclusion that the sentence of imprisonment for life is  not for  a term.  The relevant  question and ,  the

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only one  ,   to ask  under section  428 is: Has this person been sentenced  to imprisonment for a term ? For the sake of convenience ,  the question may be split into two parts. One ,   has this  person been  sentenced to imprisonment ? And , two ,  is the imprisonment to which he has been sentenced an imprisonment for  a term  ? There can possibly be no dispute that a person sentenced to life imprisonment is sentenced to imprisonment. Then  ,   what is  the term  to  which  he  is sentenced ? The obvious answer to that question is that term to which  he has  been sentenced  is the  term of  his life. Therefore ,   a person who is sentenced to life imprisonment is sentenced to imprisonment for term.      We see  but little  warrant  for  qualifying  the  word ’term’ by  the adjective ’fixed’ which is not to be round in section 428.  The assumption  that the word ’term’ implies a concept of  ascertainability or conveys a sence of certainty ii contrary  to the  letter of  the laws ,  as we find it in that section  Even the marginal note to the section does not bear out  that  assumption.  It  rather  belies  it.  And  , marginal  notes   are  now  legislative  and  not  editorial exercises. The  marginal note  of section 428 shows that the object  of   the  Legislature  in  enacting  the  particular provision was  to provide  that  ’the  period  of  detention undergone by  the accused’  should ’be  set off  against the sentence of  imprisonment’ imposed  upon him.  There are  no words of limitation either in the section or in its marginal note which  would justify  restricting the plain and natural meaning of the word ’term so as to comprehend only sentences which are imposed for a fixed or ascertainable period.      To say  that a  sentence of  life imprisonment  imposed upon an (1) [1961] 3 S.C.R. 440 ,  444. 749 accused is  a sentence for the term of his life does offence neither to  grammar nor  to the  common understanding of the word ’term’.  To say  otherwise offend  not only against the language of  the statute but against the spirit of the law , that is to say ,  the object with which the law was passed.A large number  of cases  in which  the  accused  suffer  long undertrial detentions are cases punishable with imprisonment for life.  Usually’ those  who are liable to be sentenced to imprisonment for  life are not enlarged on bail. To deny the benefit  of   section  428   to  them  is  to  withdraw  the application of  a benevolent provision from a large majority of  cases   in  which  such  benefit  would  be  needed  and justified.      Arguments and counter arguments were advanced before us on the  basis of  provisions  contained  in  sections  53  , 53A(4)(a) and (b) ,  57 ,  65 and 511 of the Penal Code. The provision contained in section 57 that imprisonment foF life has to  be reckoned as equivalent to imprisonment for twenty years is  for the  purpose of calculating fractions of terms of punishment.  We cannot  press that provision into service for a wider purpose. Nor ,  indeed ,  can we draw sustenance to our conclusion from the provision contained in section 51 I to  the effect  that whoever attempts to commit an offense punishable with imprisonment for life shall be punished with imprisonment "for a term which may extend to one half of the imprisonment for  life". The  argument of  Shri Mukul Mudgal that  if   one-half  of   life  imprisonment   is  "a  term" exhypothesi ,    life  imprisonment  would  be  "a  term  of imprisonment" is  attractive but  slender. But  ,  equally , we do  not consider  that anything  contained in the rest of the sections above noted ,  militates against the view which we have taken.

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    The modalities  for working out the provision contained in section 428 in cases of persons sentenced to imprisonment for life  should  not  present  any  serious  difficulty  in practice. In the first place ,  by reason of section 433A of the  Code   of  Criminal   Procedure  where  a  sentence  of imprisonment for  life is imposed on 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 commuted under  section 433 to one of imprisonment for life; such person  cannot be  released from  prison unless  he has served at  least fourteen  years of  imprisonment. The  only point to note is 750 that while  upholding the constitutional validity of section 433A ,   it  was held  by this Court in Maru Ram v. Union of India ,  (1) that  the section is prospective in operation , with the  result that  it cannot  apply to  cases which were decided by  the trial  Cout before  December 18  ,   1978  , being the  date on which the section came into force mind is the one  arising out  of the judgment of this Court in Gopal Vinayak Godsease.  It was  held by  a Constitution  Bench in that case  that a prisoner sentenced to life imprisonment is bound to  serve the a remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the appropriate authority. It was further held that since such a sentence could  not be  equated with  any fixed  term ,  the Rules framed  under the Prison Act entitled such a person to earn remissions but that ,  such remissions were to be taken into account only towards the end of the term. Under section 432 of  the Code  of Criminal  Procedure ,   the appropriate Government has  the power  to remit the whole or any part of the punishment  to which  a person has been sentenced. Under section 433  of the  Code ,   the appropriate Government has the power  ,   inter alia  ,   to commute  the  sentence  of imprisonment  for  life  to  imprisonment  for  a  term  not exceeding fourteen  years to  fine. 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 or  section 433 of the Code.  In the  absence of such order ,  passed generally or specially  ,   and apart from the provisions ,  if any of the relevant Jail Maunal ,  imprisonment for life would mean ,     according  to  the  rule  in  Gopal  Vinayak  Godse  , imprisonment for the remainder of life.      The two cases before us were referred to a larger Bench because of  the doubt entertained as regards the correctness of the decision in Kartar Singh ,  especially because of the apparently conflicting  view taken  by another Bench of this Court in  Sukhlal Hansda  v. State  of West  Bengal. Both of those decisions  were rendered  by a  three-judge Bench.  In Kartar  Singh   ,    persons  who  were  sentenced  to  life imprisonment challenged an order passed (1) [l981] 1 S.C.R ,  1196. 751 by the  Government of Haryana ,  denying to them the benefit of the  period of  undertrial detention under section 428 of the Code.  It was held by this Court that the Penal Code and the Criminal Procedure Code make a clear distinction between ’imprisonment for  life’ and ’imprisonment for a term’ and , in fact ,  the two expressions are used in contradistinction with each  other in  one and  the same section ,  the former meaning imprisonment  for the  remainder of the natural life of the  convict and  the latter  meaning imprisonment  for a definite or  fixed period.  The Court proceeded to hold that

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an order  of remission  passed by  the appropriate authority merely affects  the execution  of the sentence passed by the Court ,   without  interfering with  the sentence  passed or recorded by  the Court. Therefore ,  section 428 which opens with the words "where an accused person has ,  on conviction ,   been sentenced to imprisonment for a term" ,  would come into play  in cases  where  ’imprisonment  for  a  term’  is awarded on  conviction by a court and not where the sentence imposed upon  an accused  becomes a  sentence for  a term by reason  of   the  remission   granted  by   the  appropriate authority. Finally  ,   according  to  the  Court  ,    ’the question is  not whether  the beneficent provision should be extended to life convicts on a priori reasoning or equitable consideration but  whether  on  true  construction  ,    the section comprises  life convicts  within its  purview".  The Court found  support to  its view in the objects and reasons for introducing section 428 in the Code ,  as set out in the Report of the Joint Committee.      We have  considered with  great care the reasoning upon which the  decision in Kartar Singh proceeds. With respect , we are  unable to  agree with  the decision. We have already discussed why  ’imprisonment for  life is imprisonment for a term ,   within the meaning of section 428. We would like to add that  we find it difficult to agree that the expressions ’imprisonment for  life’ and  imprisonment for  a term’  are used either  in the  Penal Code or in the Criminal Procedure Code in  contra-distinction with  each other. Sections 304 , 305 ,   307  and 391  of the  penal Code undoubtedly provide that persons  quilty of  the respective  offences  shall  be punished with imprisonment for life or with imprisonment for a term  not exceeding a certain number of years. But ,  that is the  only manner  in which  the  Legislature  could  have expressed its intention that persons who are guilty of those offences shall  be punished  with either  of  the  sentences mentioned in the respective sections. The 752 circumstance  on   which  the  learned  judges  have  placed reliance in  Kartar Singh  ,   do not  afford any evidence , intrinsic or otherwise’ of the use of the two expressions in contra-distinction with  each other. Two or more expressions are often  used in  the same section in order to exhaust the alternatives which  are available  to the  Legislature. That does not  mean that there is ,  necessarily ,  an antithesis between those expressions.      The  reasoning   in  Kartar  Singh  that  an  order  of remission does  not interfere  with the sentence recorded by the court but merely affects the execution of the sentence , stands answered by the interpretation which we have put upon the language  of  section  428  that  persons  sentenced  to imprisonment for  life are  sentenced to  imprisonment for a term. It is not because of remission that a sentence of life imprisonment becomes an imprisonment for a term.              We  have also  already answered the last of the reasons given  in Kartar  Singh that  the  question  is  not whether the  beneficent provision  contained in  section 428 should  be   extended  to   life   convicts   on   equitable considerations. We  enter a  most respectful  caveat. Equity sustains law  and the  twain must  meet. They  cannot run in parallel streams.  Equitable  considerations  must  have  an important place in the construction of beneficent provisions ,   particularly in  the field  of criminal  law. To exclude such considerations  is to  denude law’s  benevolence Or its true and  lasting content.  Lastly ,   the view expressed by the Joint  Committee in  its Report  does not  yield to  the inference that  the "mischief  sought to  be remedied has no

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relevance where  gravity of  offence requires the imposition of imprisonment  for life".  As we  have indicated earlier , graver the  crime ,   longer  the sentence and ,  longer the sentence ,   greater  the need  for set-offs and remissions. Punishments are no longer retributory. They are reformative.             The order passed by this Court in Sukhlal Hansda related to  the cases  of 24 prisoners who were sentenced to life imprisonment.  Most of  those prisoners  had  undergone imprisonment for  a period which ,  after taking account the remissions earned by them ,  exceeded fourteen years. It was held by  this Court  that ,   for the purpose of considering whether the  cases of those prisoners should be examined for premature release under the relevant provisions of the  West Bengal Jail Manual ,  there was no reason why the period of 753 imprisonment  undergone  by  them  as  undertrial  prisoners should not  be taken  into account.  The Court directed that the cases of the prisoners should be considered by the State Government ,  both for the purpose of setting off the period of detention  undergone by  them as undertrial prisoners and for taking  into account  the remissions earned by them. The order passed  by the  Court does not discuss the point which arises before us though ,  the observations made therein are consistent more  with the view which we have taken than with the view taken in Kartar Singh.             For these reasons ,  we allow the appeal and the writ petition  and direct  that ,   the  period of detention undergone  by  the  two  accused  before  us  as  undertrial prisoners ,   shall  be set off against the sentence of life imprisonment imposed  upon them  ,  subject to the provision contained in  section 433A  and ,   provided that order have been passed  by the  appropriate authority under section 432 or section 433 of the Code of Criminal procedure. N.V.K.                            Petion and Appeal allowed. 754