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CASE NO.: Appeal (crl.)  1222 of 2007

PETITIONER: C.A. Pious

RESPONDENT: The State of Kerala and Anr

DATE OF JUDGMENT: 14/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the order passed by a  Division Bench of the Kerala High Court dismissing the writ  appeal filed by the appellant.

3.      Background facts in a nutshell are as follows:

The appellant is suffering life imprisonment in Central Jail,  Kannur in view of the conviction for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’).  He made a claim before the State Government that the Kerala  Prison Rules, 1958 (in short ’Rules’) provide for release on  probation on completion of 8 years of custody.  According to  him the period of study leave amounting to 6 years 10 months  and 13 days have to be reckoned while computing the period  of sentence undergone.  The prayer was rejected on the ground  that the writ petitioner had not suffered 8 years of custodial  sentence and, in fact, he had undergone imprisonment for 6  years, 3 months and 25 days to which the remand period of 1  month and 17 days is to be added making a total of 6 years 5  months and 10 days.  The High Court found substance in the  stand of the State Government with reference to Rule 225(2)  that the writ petitioner was not entitled to any relief.  A writ  appeal was filed before the High Court.  The Division Bench by  the impugned order held that the case of the writ petitioner  could not have been placed before the committee as he has not  suffered mandatory period of 8 years of sentence.   

4.      Learned counsel for the appellant submitted that the  period of study has to be reckoned.  Reference is made to Rule  461.  Learned counsel for the State on the other hand  supported the order of the High Court.

5.      Rule 280-A provides for suspension of sentence as  empowered under Section 432 (6) of the Code of  Criminal  Procedure, 1973 (in short ’Cr.P.C.’) for the period of leave for  the purpose of study. The special rules framed also is  captioned as "RULES FOR SUSPENSION OF SENTENCE OF  PRISONERS FOR THE PURPOSE OF STUDY". On the other  hand, Chapter 26 of the Rules with respect to leave specifies  only two kinds of leave i.e. emergency and ordinary. The above  rules do not contemplate suspension of sentence and it can

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also be seen from the same that the maximum period of  emergency leave at a stretch is only for a period of 15 days and  the ordinary leave up to a maximum of 30 days at a time vide  Rule 453. Rule 452B also provides that a prisoner once  released on leave of any kind will not be eligible for a  subsequent release on leave until the completion of six months  of actual imprisonment to be counted from the date of his last  return from leave. Emergency leave in Rule 455 is an  exception to this as the same is confined to 15 days as noted  above and the grounds are death or serious illness of a near  relative. On the other hand, during the period of study leave,  the sentence stands suspended. The result of suspension of  sentence as per Rule 225(2) is that the same is excluded from  the period of sentence undergone.  Ipsissima verba  Rule 225  is as follows:

"225. Procedure when sentence is suspended.  (1) When an appellate court directs that the  execution of sentence or order appealed  against be suspended the appellant shall, if  detained in jail pending the further orders of  such Appellate Court, be treated in all respects  as an under trial prisoner".

(2) Should the appellant be ultimately  sentenced to imprisonment the period during  which the original sentence was suspended  shall (a) if passed in jail, be included, and (b) if  passed out of Jail, be excluded in computing  the term for which he is sentenced by the  Appellate Court".

6.      Rule 225 (2) makes the position very much explicit. Rule  461 i.e. the provision for treatment of the period of leave as the  sentence undergone cannot be made applicable to the study  leave period. The same is abundantly clear from the fact that  at the time of commencement of study leave, the sentence  stands suspended whereas for the emergency leave or ordinary  leave, the above suspension is not contemplated under  Chapter 26 of the Rules. It is also seen from the concerned  Rules as noted above, i.e. Rule 453 that the period of  emergency and ordinary leave are confined to a short period  and the same is not granted continuously and also that a gap  of six months is contemplated as per Rule 452(B) for further  release of a prisoner granting ordinary leave. Emergency leave  as already noted vide Rule 455 is limited to extreme situations  like death or serious illness. But so far as study leave is  concerned, it is seen that the same is granted somewhat  liberally. The appellant himself was outside the prison for  more than six years. He was outside the prison more than the  period he spent inside.

7.      It appears that the Government of Kerala had constituted  a High Level Committee on the basis of the order passed in  suo motu proceedings which was initiated as in several  instances several convicts sentenced for serious offences were  released after undergoing short terms imprisonment.   Guidelines were framed by the Committee which were  promulgated by G.O.(P) 228/03/Home dated 18.10.2003.  In  para 3 of the guidelines of the State Government order, it is as  follows:

"The Committee will recommend premature  release of life convicts who have completed 8

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years of actual imprisonment including set off  if any ordered by a competent court and  excluding remission of any kind considering  the nature of offence committed by the  prisoners, nature of the crime, possible effects  on the community, their conduct in a prison  and in whose cases the committee feels that  premature release would help in their social  reformation and rehabilitation".

8.      Stand of the appellant is clearly unsustainable.  In view  of the clear position emitting from Rule 225, the High Court’s  judgment does not suffer from any infirmity that, to be entitled  to benefit convict has to suffer at least 8 years of custody.

9.      In Maru Ram v. Union of India and Ors. (1981 (1) SCC  107) it was inter-alia held as follows:

"28. Neither argument has force. The first one  fails because Section 302, IPC (or other like  offence) fixes the sentence to be life  imprisonment. 14 years’ duration is never  heavier than life term. The second submission  fails because a remission, in the case of life  imprisonment, ripens into a reduction of  sentence of the entire balance only when a  final release order is made. Godse is too  emphatic and unmincing to admit of a  different conclusion. The haunting distance of  death which is the terminus ad quem of life  imprisonment makes deduction based on  remission indefinite enough not to fix the date  with certitude. Thus, even if remissions are  given full faith and credit, the date of release  may not come to pass unless all the unexpired,  uncertain balance is remitted by a government  order under Section 432. If this is not done,  the prisoner will continue in custody. We  assume here that the constitutional power is  kept sheathed.

29. Let us assume for the sake of argument  that remissions have been earned by the  prisoner. In Murphy v. Commonwealth (172  Mass 264) referred to by Cooley and cited  before us (infra), it has been held that earned  remissions may not be taken away by  subsequent legislation. May be, direct effect of  such a privative measure may well cast a  heavier penalty. We need not investigate this  position here.

30. A possible confusion creeps into this  discussion by equating life imprisonment with  20 years’ imprisonment. Reliance is placed for  this purpose on Section 55, IPC and on  definitions in various Remission Schemes. All  that we need say, as clearly pointed out in  Godse is that these equivalents are meant for  the limited objective of computation to help the  State exercise its wide powers of total  remissions. Even if the remissions earned have  totalled up to 20 years, still the State  Government may or may not release the

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prisoner and until such a release order  remitting the remaining part of the life  sentence is passed, the prisoner cannot claim  his liberty. The reason is that life sentence is  nothing less than lifelong imprisonment.  Moreover, the penalty then and now is the  same \027 life term. And remission vests no right  to release when the sentence is life  imprisonment. No greater punishment is  inflicted by Section 433-A than the law  annexed originally to the crime. Nor is any  vested right to remission cancelled by  compulsory l4-year jail life once we realise the  truism that a life sentence is a sentence for a  whole life (see Sambha Ji Krishan Ji v. State of  Maharashtra (AIR 1974 SC 147) and State of  M. P. v. Ratan Singh (1976 Supp SCR 552).

31. Maybe, a difference may exist in cases of  fixed term sentences. Cooley lends support :

Privilege existing at time of  commission of offence (e.g. privilege  of earning a shortening of sentence  by good behaviour) cannot be taken  away by subsequent statute.

               xxx                     xxx                     xxx 72. We conclude by formulating our findings:

(1) We repulse all the thrusts on the vires of  Section 433-A. Maybe, penologically the  prolonged term prescribed by the section is  supererogative. If we had our druthers we  would have negatived the need for a fourteen- year gestation for reformation. But ours is to  construe, not construct, to decode, not to  make a code.

(2) We affirm the current supremacy of Section  433-A over the Remission Rules and short- sentencing statutes made by the various  States.

(3) We uphold all remissions and short- sentencing passed under Articles 72 and 161  of the Constitution but release will follow, in  life sentence cases, only on government  making in order en masse or individually, in  that behalf.

(4) We hold that Section 432 and Section 433  are not a manifestation of Articles 72 and 161  of the Constitution but a separate, though  similar power, and Section 433-A, by nullifying  wholly or partially these prior  provisions does  not violate or detract from the full operation of  the constitutional   power to pardon, commute  and the like.

(5) We negate the plea that Section 433-A  contravenes Article 20(1) of the Constitution.

(6) We follow Gopal Vinayak Godse  v. State of  Maharashtra (1961 (3) SCR 440) to hold that

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imprisonment for life lasts until the last  breath, and whatever the length of remissions  earned, the prisoner can claim release only if  the remaining sentence is remitted by  government.

(7) We declare that Section 433-A, in both its  limbs (i.e. both types of life imprisonment  specified in it), is prospective in effect. To put  the position beyond doubt, we direct that the  mandatory minimum of 14 years’ actual  imprisonment will not operate against those  whose cases were decided by the trial Court  before December 18, 1978 when Section 433-A  came into force. All ’Lifers’ whose conviction by  the court of first instance was entered prior to  that date are entitled to consideration by  government for release on the strength of  earned remissions although a release can take  place only if government makes an order to  that effect. To this extent the battle of the  tenses is won by the prisoners. It follows, by  the same logic, that short. sentencing  legislations, if any, will entitle a prisoner to  claim release there under if his conviction by  the court of first instance was before Section  433-A was brought into effect.

(8) The power under Articles 72 and 161 of the  Constitution can be exercised by the Central  and State Governments, not by the President  or Governor on their own. The advice of the  appropriate Government binds the Head of the  State. No separate order for each individual  case is necessary but any general order made  must be clear enough to identify the group of  cases and indicate the application of mind to  the whole group.

(9) Considerations for exercise of power under  Articles 72/161 may be myriad and their  occasions protean, and are left to the  appropriate Government, but no consideration  nor occasion can be wholly irrelevant,  irrational, discriminatory or mala fide. Only in  these rare cases will the court examine the  exercise.

(10) Although the remission rules or short- sentencing provisions proprio vigore may not  apply as against Section 433-A, they will  override Section 433-A if the government,  Central or State, guides itself by the self-same  rules or schemes in the exercise of its  constitutional power. We regard it as fair that  until fresh rules are made in keeping with  experience gathered, current social conditions  and accepted penological thinking- a desirable  step, in our view- the present remission and  release schemes may usefully be taken as  guide-lines under Articles 72/161 and orders  for release passed. We cannot fault the  government, if in some intractably savage  delinquents, Section 433-A is itself treated as a  guide-line for exercise of Articles 72/161.  

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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.

(11) The U.P. Prisoners’ Release on Probation  Act, 1938, enabling limited enlargement under  licence will be effective as legislatively  sanctioned imprisonment of a loose and liberal  type and such licensed enlargement will be  reckoned for the purpose of the 14-year  duration. Similar other statutes and rules will  enjoy similar efficacy.

(12) In our view, penal humanitarianism and  rehabilitative desideratum warrant liberal  paroles, subject to security safeguards, and  other humanizing strategies for inmates so  that the dignity and worth of the human  person are not desecrated by making mass  jails anthropoid zoos. Human rights awareness  must infuse institutional reform and search for  alternatives.

(13) We have declared the law all right, but  law-in-action fulfils itself not by declaration  alone and needs the wings of communication  to the target community. So, the further  direction goes from this Court that the last  decretal part is translated and kept  prominently in each ward and the whole  judgment, in the language of the State, made  available to the inmates in the jail library.

(14) Section 433-A does not forbid parole or  other release within the 14-year span. So to  interpret the section as to intensify inner  tension and intermissions of freedom is to do  violence to language and liberty."

10.     As and when the appellant suffers actual custody of more  than 8 years, let his case be considered in accordance with law  by the concerned authorities.   

11.     We make it clear that we have not expressed any opinion  in the acceptability of the plea of the appellant while   considering the case of the appellant. The parameters and  requirements have to be kept in view while considering the  case.    

12.     The appeal is dismissed with the aforesaid observations.