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PETITIONER: GOPAL VINAYAK GODSE

       Vs.

RESPONDENT: THE STATE OF MAHARASHTRA AND OTHERS.

DATE OF JUDGMENT: 12/01/1961

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. MUDHOLKAR, J.R.

CITATION:  1961 AIR  600            1961 SCR  (3) 440  CITATOR INFO :  R          1976 SC1552  (4)  R          1977 SC1096  (6)  RF         1980 SC2147  (72)  R          1982 SC1439  (6)  F          1983 SC 855  (2,4,15,18)  R          1984 SC 739  (5)  F          1985 SC1050  (5,11)  RF         1989 SC 653  (12)  RF         1990 SC1396  (6)  E          1991 SC1792  (4,9,10,11,12,17)  R          1991 SC2296  (6,8)

ACT: Habeas Corpus-Sentence-Transportation for  life-Imprisonment for life, if equivalent to any fixed term-Remissions,  right to--When can be taken into consideration-Indian Penal  Code, 1860 (XLV of 1860), s. 53A-Code of Criminal Procedure,  1898 (V of 1898), s. 401.

HEADNOTE: The petitioner was convicted in 1949 and sentenced to trans- portation  for life.  He earned remission of 2963  days  and adding  this to the term of imprisonment actually served  by the  petitioner  the  aggregate  exceeded  20  years.    The petitioner contended that his further detention in jail  was illegal and prayed for being set at liberty: Held, that the petitioner had not yet acquired any right  to be released.  A sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment  for life  in a designated prison in India.  Section 53A  of  the Indian  Penal  Code,  introduced by  the  Code  of  Criminal Procedure  (Amendment) Act, 1955, provided that  any  person sentenced  to transportation for life before  the  Amendment Act  would be treated as sentenced to rigorous  imprisonment for  life.   A prisoner sentenced to life  imprisonment  was bound  to serve the remainder of his life in  prison  unless the  sentence  was commuted or remitted by  the  appropriate authority.   Such a sentence could not be equated  with  any fixed term.  The rules framed under the Prisons Act entitled

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such a prisoner to earn remissions but such remissions  were to  be taken into account only towards the end of the  term. The  question  of  remissions  was  exclusively  within  the province of the appropriate Government.  In the present case though  the Government had made certain remissions under  s. 401  of the Code of Criminal Procedure, it had not  remitted the entire sentence. Pandit  Kishori Lal v. King-Emperor, (1944) L.R. 72  I.A.  , referred to.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 305/1960. Petition  under Article 32 of the Constitution of India  for enforcement of Fundamental Rights. Petitioner in person. H.   N.  Sanyal, Additional Solicitor-General of India  pond R. H. Dhebar, for the respondents, 441 1961.  January 12.  The Judgment of the Court was  delivered by SUBBA  RAO,  J.-This  is a; petition under Art.  32  of  the Constitution  for  an order in the nature of  habeas  corpus claiming that the petitioner has justly served his  sentence and should, therefore, be released. On  February 10, 1949, the Judge, Special Court,  Red  Fort, Delhi,  convicted  the petitioner for offences under  s.  3, read  with s. 6, of the Explosive Substances Act,  under  s. 4(b)  and s. 5 thereof, I and for murder under s. 302,  read with  s.  109, of the Indian Penal Code; for the  first  two offences   he  was  sentenced  to  seven   years’   rigorous imprisonment   and   five   years   rigorous    imprisonment respectively and for the third offence to transportation for life   and   all  the  sentences  were   directed   to   run concurrently.   After conviction he was imprisoned in  jails in the State of Punjab till May 19, 1950, and thereafter  he was transferred to Nasik Road Central Prison in the State of Bombay  (now Maharashtra).  According to the petitioner,  he has  earned  the following remissions up  to  September  30, 1960:      (a)  Ordinary remission                  ...  836 days      (b)  Special remission                   ...  206 days      (c)  Physical training remission         ...  113 days      (d)  Literary remission                  ...  108 days      (e)  Annual good conduct remission       ...  250 days      (f)  State remission                     ...  1380 days The  total of the remissions earned is 2,893 days;  but  the State in its counter-affidavit state that the petitioner has earned  up  to the said date remission of 2,963  days.   The figure given by the State may be accepted as correct for the purpose of this petition.  If the amount of remissions  thus earned was added to the term of imprisonment the  petitioner has  actually served, the aggregate would exceed  20  years, and  even  if only the State remission was added to  it,  it would exceed 15 years.  The petitioner, claiming that  under the  relevant  provisions  governing  his  imprisonment  his further  detention in jail would be illegal, prays  that  he might  be  set  at  liberty  forthwith.   The  State,  while conceding that he has earned remissions 56 442 &mounting  to 2,963 days, alleged in the  counter  affidavit that  the  remissions  earned  did not  entitle  him  to  be released  and  that  under the rules  the  question  of  his

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release  would  be  considered only after  he  completed  15 years’ actual imprisonment. The  petitioner argued his case in person.  He rejected  the help of an advocate as amicus curiae to assist him.  In  the circumstances,  his  argument was based  more  on  emotional plane than on legal basis.  But as the liberty of a  citizen is  involved, we have gone through the  relevant  provisions and  considered the possible contentions that may be  raised on the basis of the said provisions. The  first  question that falls to be  decided  is  whether, under the relevant statutory provisions, an accused who  was sentenced  to  transportation  for life,  could  legally  be imprisoned in one of the jails in India; and if so, what was the  term  for which he could be so  imprisoned.   We  shall briefly  notice the relevant provisions of the Indian  Penal Code before it was amended by the Code of Criminal Procedure (Amendment)  Act  XXVI of 1955.  Section 53  of  the  Indian Penal  Code  set  out six  different  punishments  to  which offenders were liable.  The second of those punishments  was transportation and the fourth was imprisonment which was  of two  descriptions, namely, rigorous and simple.  The word  " transportation  " was not defined in the Indian Penal  Code, but it was for life with two exceptions.  Under s. 55 of the Indian  Penal  Code, " In every case in  which  sentence  of transportation   for  life  shall  have  been  passed,   the Provincial  Government  of  the Province  within  which  the offender shall have been sentenced may, without the  consent of the offender, commute the punishment for imprisonment  of either description for a term not exceeding fourteen years." Under  s. 58 thereof, in every case in which a  sentence  of transportation  was  passed,  the  offender,  until  he  was transported,  should be dealt with in the same manner as  if sentenced  to  rigorous imprisonment and should be  held  to have  been undergoing his sentence of transportation  during the  term of his imprisonment.  It was averred on behalf  of the 443 State  that the petitioner’s sentence had not been  commuted under s. 55 of the Indian Penal Code or under s. 402 (1)  of the   Code  of  Criminal  Procedure  to  one   of   rigorous imprisonment.   We  have no reason for  not  accepting  this statement.   On  that basis, a question arises  whether  the petitioner,  who was sentenced to transportation,  could  be dealt  with  legally  as if he were a  person  sentenced  to rigorous imprisonment.  This question was raised before  the Judicial  Committee of the Privy Council in  Pandit  Kishori Lal  v. King Emperor(1).  After considering the  history  of the  sentence of transportation, the relevant provisions  of the  Indian Penal Code, the Code of Criminal  Procedure  and the  Prisons Act, the Privy Council came to  the  conclusion that the said provisions made it plain that when a  sentence of   transportation  had  been  passed  it  was  no   longer necessarily  a sentence of transportation beyond  the  seas. It was observed at p. 9 thus:               " But at the present day transportation is  in               truth but a name given in India to a  sentence               for  life and, in a few special cases,  for  a               lesser  period,  just as in England  the  term               imprisonment is applied to all sentences which               do not exceed two years and penal servitude to               those       of      three      years       and               upwards...... .................. So, in India,               a prisoner sentenced to transportation may  be               sent to the Andamans or may be kept in one  of               the    jails    in   India    appointed    for

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             transportation  prisoners,  where he  will  be               dealt  with in the same manner as  a  prisoner               sentenced to rigorous imprisonment." In view of this weighty authority with which we agree, it is not   necessary   to  consider  the   relevant   provisions, particularly  in  view of s. 53A of the  Indian  Penal  Code which  has been added by Act XXVI of 1955.  Section  53A  of the said Code reads:               "(1)..........               (2)   In  every  case in which a  sentence  of               transportation  for  a term  has  been  passed               before   the  commencement  of  the  Code   of               Criminal Procedure (Amendment) Act, 1954,  the               offender  shall  be  dealt with  in  the  same               manner    as   if   sentenced   to    rigorous               imprisonment for the same term. (1)  (1944) L.R. 72 I.A. I, 444 Whatever  justification  there  might  have  been  for   the contention  that a person sentenced to transportation  could not  be legally made to undergo rigorous imprisonment  in  a jail in India except temporarily till he was so transported, subsequent to the said amendment there is none.  Under  that section,  a  person transported for life or any  other  term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or  for the said term. If  so, the next question is whether there is any  provision of law whereunder a sentence for life imprisonment,  without any  formal  remission  by appropriate  Government,  can  be automatically treated as one for a definite period.  No such provision  is  found  in  the Indian  Penal  Code,  Code  of Criminal   Procedure  or  the  Prisons  Act.    Though   the Government of India stated before the Judicial Committee  in the  case  cited supra that, having regard to s. 57  of  the Indian Penal Code, 20 years’ imprisonment was equivalent  to a   sentence  of  transportation  for  life,  the   Judicial Committee  did  not  express  its  final  opinion  on   that question.  The Judicial Committee observed in that case thus at p. 10:               " Assuming that the sentence is to be regarded               as  one  of  twenty  years,  and  subject   to               remission for good conduct, he had not  earned               remission   sufficient  to  entitle   him   to               discharge at the time of his application,  and               it  was  therefore rightly dismissed,  but  in               saying  this,  their Lordships are not  to  be               taken as meaning that a life sentence must and               in  all  cases be treated as one of  not  more               than  twenty  years, or that  the  convict  is               necessarily entitled to remission." 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 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 445 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.

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It  is  said that the Bombay rules governing  the  remission system  substituted a definite period for life  imprisonment and, therefore, if the aggregate of the term actually served exceeds the said period, the person would be entitled to  be released.  To appreciate this contention the relevant Bombay rules may be read.               Release.   Rule  934.   "  In  a11  cases   of               premature releases, orders under Section  401,               Criminal  Procedure  Code,  will  have  to  be               issued by Government before the prisoners  can               actually be released from Jail."               Rule  937.  (c)  " When a life  convict  or  a               prisoner  in whose case the  State  Government               has  passed  an order forbidding  his  release               without  reference  to  it,  has  earned  such               remission as would entitle him to release  but               for   the   provisions  of  this   rule,   the               Superintendent shall report accordingly to the               State Government through the Inspector-General               in order that his case may be considered  with               reference  to  Section  401  of  the  Code  of               Criminal Procedure, 1898."               The  Remission  System:  Rule 1419.  (c)  "  A               sentence  of  transportation  for  life  shall               ordinarily  be  taken  as  15  Years’   actual               imprisonment."               Review of Sentences: Rule 1447. (2) " Notwith-               standing  anything contained in rule  1419  no               prisoner    who   has   been   sentenced    to               transportation for life or more than 14 years,               imprisonment   or   to   transportation    and               imprisonment   or   to   transportation    and               imprisonment   for  terms  exceeding  in   the               aggregate  14  years  shall  be  released   on               completion  of his term of  transportation  or               imprisonment  or  both, as the  case  may  be,               including all remissions unless a report  with               respect  to such prisoner has been made  under               sub.rule  (1)  and orders of  Government  have               been received thereon with regard to the  date               of his final release." It  is common case that the said rules were made  under  the Prisons Act, 1894, and that they have 446 statutory force.  But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment  of prisoners  confined therein.  Section 59 of the Prisons  Act confers a power on the State Government to make rules, inter alia,  for rewards for good conduct.  Therefore,  the  rules made  under the Act should be construed within the scope  of the  ambit of the Act.  The rules, inter alia,  provide  for three  types  of  remissions  by way  of  rewards  for  good conduct, namely, (i) ordinary, (ii) special and (iii) State. For  the  working  out of the  said  remissions  under  rule 1419(c),  transportation for life is ordinarily to be  taken as  15  years’  actual imprisonment.   The  rule  cannot  be construed  as  a  statutory equation  of  15  years’  actual imprisonment  for transportation for life.  The equation  is only for a particular purpose, namely, for the purpose of  " remission  system  " and not for all purposes.  The  word  " ordinarily   "   in  the  rule  also   supports   the   said construction.   The non obstante clause in sub-rule  (2)  of rule 1447 reiterates that notwithstanding anything contained in  rule  1419  no  prisoner  who  has  been  sentenced   to

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transportation  for life shall be released on completion  of his term unless orders of Government have been received on a report submitted to it.  This also indicates that the period of  15 years’ actual imprisonment specified in the  rule  is only  for the purpose of calculating the remission and  that the completion of the term on that basis does not ipso facto confer any right upon the prisoner to release.  The order of Government  contemplated  in  rule 1447 in  the  case  of  a prisoner sentenced to transportation for life can only be an order under s. 401 of the Code of Criminal Procedure, for in the  case  of  a sentence of  transportation  for  life  the release  of  the prisoner can legally be  effected  only  by remitting the entire balance of the sentence.  Rules 934 and 937(c)  provide for that contingency.  Under the said  rules the  orders  of  an appropriate  Government  under  s.  401, Criminal  Procedure Code, are a prerequisite for a  release. No  other rule has been brought to our notice which  confers an indefeasible right on a 447 prisoner   sentenced  to  transportation  for  life  to   an unconditional  release  on the expiry of a  particular  term including  remissions.  The rules under the Prisons  Act  do not   substitute  a  lesser  sentence  for  a  sentence   of transportation for life. Briefly  stated the legal position is this: Before Act  XXVI of  1955  a  sentence of transportation for  life  could  be undergone by a prisoner by way of rigorous imprisonment  for life  in a designated prison in India.  After the said  Act, such a convict shall be dealt with in the same manner as one sentenced  to  rigorous  imprisonment  for  the  same  term. Unless  the  said  sentence  is  commuted  or  remitted   by appropriate  authority under the relevant provisions of  the Indian  Penal  Code  or the Code of  Criminal  Procedure,  a prisoner  sentenced to life imprisonment is bound in law  to serve the life, term in prison.  The rules framed under  the Prisons  Act  enable  such a prisoner  to  earn  remissions- ordinary, special and State-and the said remissions will  be given  credit  towards his term of  imprisonment.   For  the purpose  of  working  out the  remissions  the  sentence  of transportation  for  life  is  ordinarily  equated  with   a definite period, but it is only for that particular  purpose and  not  for  any  other  purpose.   As  the  sentence   of transportation  for life or its prison equivalent, the  life imprisonment, is one of indefinite duration, the  remissions so  earned do not in practice help such a convict as  it  is not  possible to predicate the time of his death.   That  is why  the rules provide for a procedure to enable the  appro- priate Government to remit the sentence under s. 401 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 the province of  the  appropriate  Government; and in  this  case  it  is admitted  that,  though  the  appropriate  Government   made certain  remissions  under s. 401 of the  Code  of  Criminal Procedure,  it  did  not remit  the  entire  sentence.   We, therefore, hold that the petitioner has not yet acquired any right to release. 448 The petitioner made an impassioned appeal to us that if such a construction be accepted, he would be at the mercy of  the appropriate Government and that the said Government, out  of spite, might not remit the balance of his sentence, with the result that he would be deprived of the fruits of remissions earned by him for sustained good conduct, useful service and even  donation  of blood.  The Constitution as well  as  the

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Code  of  Criminal  Procedure confer the power  to  remit  a sentence  on  the  executive Government and  it  is  in  its exclusive  province.  We cannot assume that the  appropriate Government   will  not  exercise  its  jurisdiction   in   a reasonable manner. For  the  foregoing reasons we hold that the  petitioner  is under legal detention and the petition for habeas corpus  is not maintainable.  The petition is dismissed. Petition dismissed.