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PETITIONER: KARTAR SINGH AND OTHERS

       Vs.

RESPONDENT: STATE OF HARYANA THROUGH INSPECTOR .GENERAL OF PRISON, CHAND

DATE OF JUDGMENT26/08/1982

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. ISLAM, BAHARUL (J) MISRA, R.B. (J)

CITATION:  1982 AIR 1439            1983 SCR  (1) 445  1982 SCC  (3)   1        1982 SCALE  (1)671  CITATOR INFO :  R          1983 SC 855  (2)  R          1984 SC 739  (5)  O          1985 SC1050  (2,12,13,TO,16)  RF         1990 SC1336  (7)

ACT:      Criminal Proccdure Code-s. 428-Applicability to persons sentenced to imprisonment for life- construction of.

HEADNOTE:      Under s.  428, Cr. P.C., an accused person sentenced to imprisonment for  a term  is entitled  to set off his under- trial period  of detention against the sentence imposed upon him.      The petitioners  were life-convicts undergoing sentence in different  Jails in  Haryana. Under  para  516-B  of  the Punjab  Haryana   Jail  Manual  they  were  entitled  to  be considered for  premature release  on their completing 8-112 years  of   substantive  imprisoment   and   14   years   of imprisonment  including   remissions.   According   to   the petitioners, if  the period  of their  under-trial detention was  added  f  -  to  their  total  period  of  imprisonment including remissions,  the total  detention would  exceed 14 years and  their continued  detention would  be illegal.  In Maru Ram v. Union of India and Anr., [1981] 1 S.C.R. 1196 it had been held that the mandatory minimum of 14 years’ actual imprisonment specified  in  s.  433-A,  Cr.P.C.,  would  not operate against those ’lifers’ whose conviction by the court of first  instance had  been entered prior to 18th December, 1978, and  that they  would not be entitled to consideration by Government  for premature  release on the strength of the remissions earned  under the  relevant rules. The Government of Haryana  had by  its  order  dated  2nd  February,  1981, decided that  the  benefit  of  the  period  of  under-trial detention should  not be given to life-convicts who had been convicted  before   18th  December,  1978.  The  petitioners submitted that  the said  order was  invalid for  the reason that it wrongfully denied to them the benefit of the set off contemplated under s. 428, Cr. P.C.      Counsel for  the petitioners  contended that  cases  of life-convicts would fall within the terms of s. 428 as:

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    (i)  persons sentenced  to imprisonment  for life could           be said  to have been sentenced to their life-term           which under  the provisions  of the Penal Code and           Jail Manual was regarded as equivalent to 20 years           or 14 year 446      (ii) when remissions  are  actually  granted  to  life-           convicts their  sentences become imprisonments for           a term:      (iii)when  convicts   other  than  life  convicts  were           entitled  to   the  benefit   of   the   set   off           contemplated under the section there was no reason           why life-convicts should be denied that advantage.           ..      Dismissing the petition, ^      HELD: on  a plain  reading of  s. 428,  Cr. P.C., it is clear that  the cases  of the  petitioners,  who  have  been sentenced to  imprisonment for  life, would  not fall within the section,  for, the  section applies to an accused person who has  on conviction  been sentenced to imprisonment for a term. [45O H; 451 A]      (b)  A perusal  of several sections of the Indian Penal Code as well as Criminal Procedure Code would show that both the Codes  make and  maintain a  clear  distinction  between "imprisonment for  life" and  "imprisonment for  a term"; in fact,  the  two  expressions  "imprisonment  for  life"  and "imprisonment   for    a   term"    have   been    used   in contradistinction with  each  other  in  one  and  the  same section, where  the former  must mean  imprisonment for  the remainder of the natural life of the convict and latter must mean imprisonment  for a  definite or  fixed period.  Having regard to such distinction which is being maintained in both the Codes, it will be difficult to slur over the distinction on the basis that life-convicts should be regarded as having been sentenced  to a  life term or to say that the two could be  understood   as  interchangeable   expressions  because, basically,  the  life-term  of  any  accused  is  uncertain. Section 57,  I.P.C. or the Remission Rules contained in Jail Manuals are  irrelevant in  this context. It is well settled that a sentence for imprisonment for life must be treated as imprisonment for  the whole  of the  remaining period of the convicted person’s  natural life.  [451 F-H; 452 D-E; 452 G; 453 A]      Kishori Lal  v. Emperor,  A.l.R. [1945]  P.C. 64; Gopal Vinayak Godse  v. The  State of  Maharashtra [1961] 3 S.C.R. 440; Maru Ram v. The Union of India and Anr. [1981] I S.C.R. 1196; and  StatE of  Madhya Pradesh  v. Ratan  Singh & Ors., [1976] Supp. S.C.R. 552, referred to.      (c)  An  order   of  remission   passed  by  the  State Government or  by the  Jail Authorities  does not  interfere with either the conviction or sentence recorded by tho court which remains intact; it merely affects the execution of the sentence passed  by the court and frees the convicted person from his  liability to undergo the full term of imprisonment and it is for this reason that an accused person has f every right  to  press  his  appeal  against  the  conviction  and sentence imposed upon him, full remission - notwithstanding. Moreover, S.  428, opens  with the  words "where  an accused person has,  on conviction,  been sentenced  to imprisonment for a  term" and  as such the section will come into play in cases  where   "imprisonment  for  a  term"  is  awarded  on conviction by  a court  and not where the convict’s sentence becomes a  sentence for a term on remission being granted by the t Executive. [453 C-F]

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447      Puttawwa v.  The State  of Mysore,  A.I.R. 1959  Mysore      116, approved. A      (d)  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 and  on construction it is not possible to hold that it does. The objects and reasons for introducing s. 428 anew in the  Code, as  set out  by the  Joint  Committee  in  its Report, clearly  show that cases of life-convicts were never intended to be covered by the provision. [453-G; 454-A-B]      Kalidas Vanmalibhai  v. State of Gujarat & Anr., [1980] 21 Guj. Law Reporter, 7, overruled.      Kanthalot Karunan  & others v. State of Kerola,(1975) K L.T. 147:  Rajahusein Gulamhusein  Lakhani v.  The State  of Maharashtra (1976)  Crl. L.J.  1294; Rafiq  Abdul Rehman  v. ’The State  of Maharashtra, (1978) Crl. L.J. 214 and Bhimsen v. The State of Rajasthan 1977 Crl. L.J. 696, approved.

JUDGMENT:      ORlGlNAL JURISDlCcTlON:  Writ Petition  (Crl.) No. 3226 of 1981. - D           (Under Article 32 of the Constitution of India)      R.C. Kohli for the Petitioners.      K .G. Bhagat and R.N. Poddar for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  This writ petition raises the question whether persons  sentenced  to  imprisonment  for  life  are entitled to  set off  their under-trial  period of detention against their  sentence  under  sec.  428  of  the  Criminal Procedure Code ?      The facts  giving rise to the aforesaid question may be stated.      The three petitioners (Kartar Singh, Mukhtiar Singh and Baljit Singh)  on conviction  under sec.  30?, Indian  Penal Code were  sentenced to imprisonment for life, the first two on 20th  February, 1973 and the last on 17th September, 1975 and each  one of then is at  present undergoing his sentence in one or the other jails at Hissar in the State of Haryana. The petitioners  have pointed  out that in Maru Ram v. Union of  India   &  Anr.(l)   this  Court   while  upholding  the constitutional validity  of sec. 433-A of Criminal Procedure Code 448 has held the section to be prospective in effect, that is to say, the  mandatory minimum of 14 years’ actual imprisonment specified therein will not operate against those whose cases were decided  by the  trial court before 18th December, 1978 when the section came into force and that all ’lifers’ whose conviction by  the court  of the  first instance was entered prior to  that date  would be  entitled to  consideration by Government for  pre-mature release  on the  strength of  the remissions earned  under the relevant rules and according to them under Para 516-B of the Punjab Haryana Jail Manual life convicts below the age of 20 at the date of their conviction are entitled  to be  considered for  pre-mature  release  on their completing  6 years of substantive imprisonment and 10 years  of   imprisonment  including  remissions  while  life convicts  above   the  age  of  20  at  the  date  of  their convictions are  entitled to  be  considered  for  premature release on  their completing  8  1/2  years  of  substantive imprisonment  and   14  years   of  imprisonment   including

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remissions. The petitioners say that their case falls in the second category  and according  to them they are entitled to be considered for premature release if to their total period of imprisonment  inclusive of remissions is added the period of their  under-trial detention  (which in  the case  of the first two  petitioners is  612 days  and in  the case of the third petitioner  is 2 years I month and 14 days) as on such reckoning the  total detention  exceeds 14  years and  their continued detention is illegal; but the Respondent State has issued an  order No.  1953/591GI/G  3/r-19  (11)  dated  2nd February, 1981  to all  Jail Superintendents  in  the  State whereunder instructions  have  been  issued-  that  for  the purpose of  considering cases  of pre-mature  release  while calculating 8-1/2  years substantive  sentence and  14 years imprisonment including remissions the benefit of under-trial period is  not to  be given  to life  convicts who have been convicted before  18th December,  1978. The petitioners have challenged the legality and/or validity of the said order as being contrary  to law  and violative  of Arts. 14 and 21 of the  Constitution.   In  substance   the  petitioners   have contended that  the  said  order  illegally  and  wrongfully denies  to   life  convicts   the  benefit   of  a   set-off contemplated under  sec. 421  Cr.  P.C.  and  therefore  the petitioners have  sought a mandamus directing the Respondent State to  consider their  cases for release under Para 516-B of the  Punjab/Haryana Jail  Manual after  giving  them  the benefit of said set-off against their sentences.      In  the   counter-affidavit  filed  on  behalf  of  the Respondent State  the legal position obtaining as . a result of this Court’s decision 449 in Maru  Ram’s case (supra) has been accepted; similarly the effect of  Para 516-B  of the  Punjab/Haryana Jail Manual as set out  by the petitioners is also accepted. It is however, denied that  the order No. 1953/59/G1/G.3/T-19(11) dated 2nd February, 1981  is illegal  or invalid  for any reason or is contrary to  sec. 428,  Cr. P.C.  It has been contended that the benefit  of a  set-off contemplated by sec. 428 Cr. P.C. is not  available to life convicts but is available to those convicts who  have been sentenced to imprisonment for a term and therefore  far  from  being  contrary  to  any  law  the impugned order  is in accord with the provisions of sec. 428 Cr.  P.C.   and  since  the  periods  of  their  under-trial detention are  not to  be reckoned  or set off against their sentences the  petitioners’ cases  could not be said to have become ripe  for consideration  for pre-mature release. Even otherwise,   according    to   the    Respondent-State   the petitioners’  cases,   have  not   become  ripe   for   such consideration because  the periods  of substantive or actual imprisoment, the remissions earned and the periods of under- trial detention  as set  out  by  the  petitioners  are  not correct. According  to the  Respondent-State in  the case of Kartar  Singh  the  net  period  of  substantive  or  actual imprisonment is 6 years 9 months and 11 days, the remissions earned by  him amount  to 4  years S  months and 24 days, to which even if the period of undertrial detention, which is 1 year 8  months and  4 days,  is added  the total comes to 12 years, 11  months and 9 days and not 14 years as required by Para 516-B of the Punjab/Haryana Jail Manual; in the case of Mukhtiar Singh  the net  period  of  substantive  or  actual imprisoment is  7  years,  zero  month  and  six  days,  the remissions earned  by him amount to 4 years, 7 months and 10 days, to  which even  if the period of under-trial detention which is  1 year,  8 months  and 4  days is  added the total comes to  13 years, 3 months and 20 days and not 14 years as

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required by the said Para 516-B; in the case of Baljit Singh the net substantive or actual imprisonment under gone by him is 4  years, 9  months and 10 days, the remissions earned by him amount  to 3  years, 8 months, 11 days, to which even if the period of uodertrial detention which is 2 years, I month and 13  days is  added the total comes to 10 years, 7 months and 4  days and  not 14  years as  required by the said Para 516-B. In  any event,  therefore, none of the petitioners is entitled to  have his case considered for pre-mature release and therefore the petition is liable to be dismissed.      Since  the   legal   question   touching   the   proper construction of 450 sec. 428  Cr. PC.  was argued at length by counsel on either side at the Bar we have decided to address ourselves to that question without  getting lost  in the factual dispute as to whether even  after reckoning  the periods  of their  under- trial detention  the petitioners are or are . P not entitled to have  their cases  considered by the State Government for pre-mature release  under Para  516-B of  the Punjab/Haryana Jail Manual.  In other words for the purpose of deciding the question we  shall proceed  on the assumption that factually if the periods of their under-trial detention are taken into account the  petitioners would  be entitled  to  have  their cases considered  for premature  release.  the  question  is whether even  on such  assumed factual basis the petitioners are in  law entitled  to get  a set  off of the said periods against their  sentences under  sec. 428 of the Cr. P.C. and if so,  whether the  impugned order dated 2nd February, 1981 issued by the Respondent-State is illegal or invalid.      At the  outset it may be stated that the impugned order dated 2nd  February, 1981 is challenged as contravening sec. 428 but  the constitutional  validity of sec. 428 itself has not been  challenged. Admittedly  all the  three petitioners have  been  convicted  under  sec.302,  IPC  and  have  been sentenced to  imprisonment for  life  and  the  question  is whether sec.  428 Cr.  P.C. is  applicable to them. Sec. 428 runs thus           428. Period  of detention 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,  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 of  against the term of imprisonment           imposed  on   him  on  such  conviction,  and  the           liability of  such person  to undergo  imprison  -           ment on such conviction shall be restricted to the           remainder, if  any of  the  term  of  imprisonment           imposed on him. on a  plain reading  of the  aforesaid provision  it will be clear that  the cases  of the  petitioners,  who  have  been sentenced to  imprisonment for  life, would  not fall within the section,  for, the  section applies to an accused person who has on conviction, been sentenced to imprison.      citizens of  this ancient  land  having  a  feeling  of belonging to the civilised community governed by the liberty oriented consitution.  Personal liberty  makes for the worth of  human  being  and  is  a  cherished  and  prized  right. Deprivation thereof  must be preceded by an inquiry ensuring fair, just  and reasonable procedure and trial by a judge of unquestioned inte- 451

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ment for  a Term and it is only in cases of such persons who have been  sentenced to  imprisonment for  a term  that  the period of  their under  trial detention  has to  be set  off against the  term of  the imprisonment imposed upon them and the liability of such persons to undergo imprisonment has to be restricted  to the  remainder, if any, imposed upon them. Counsel for  the petitioners,  however, raised  a  two  fold contention. In  the first  place, he  contended that persons sentenced to  imprisonment for  life could  be said  to have been sentenced to their life term which under the provisions of the Penal Code (section 57) and Jail Manuals (Para 716-B) are regarded  as equivalent  to 20  years or 14 years and as such cases  of life  convicts would fall within the terms of sec.  428.  Secondly,  in  any  event  when  remissions  are actually granted  by the State Government under sec. 432 Cr. P.C. Or by the Jail Authorities under the relevant remission rules contained in Jail Manuals to life convicts their cases should be treated as falling within the purview of sec. 428, inasmuch as  on the  grant  of  remissions  their  sentences become imprisonments  for a  term and  since in  the instant case each one of the petitioners has been granted remissions each is  entitled  to  have  the  benefit  of  the  set  off mentioned in  sec. 428  of the Cr. P.C; and consequently the impugned  order   of  2nd  February,.  1981  issued  by  the Respondent State would be illegal or invalid as contravening the section. To support his contention Counsel relied upon a decision of  the Gujarat  High Court  in the case of Kalidas Vanmalibhai v. State of Gujarat and Anr.(l) where that Court has taken  the view that a beneficent provision like the one contained in  sec. 428  Cr. P.C. should be made available to convicts sentenced  to life imprisonment. It is not possible to accept  the submissions  of Counsel for the reasons which we shall presently indicate.      In the first place a perusal of several sections of the Indian Penal  Code as  well as  Criminal Procedure Code will show  that   both  the  Codes  make  and  maintain  a  clear distinction between  imprisonment for  life and imprisonment for a  term; in  fact, the two expressions ’imprisonment for life’ and  ’imprisonment for  a  term’  have  been  used  in contra-distinction with  each other  in  one  and  the  same section, where  the former  must mean  imprisonment for  the remainder  of   the  natural  life  of  the  convict  (vide: definition of  ’life’ in  s. 45  I.P.C.) and the latter must mean imprisonment for a definite or fixed 452 period.  For   instance  sec.   304  I.P.C.   provides  that punishment for  culpable homicide  not amounting  to  murder shall be  imprisonment for  life or  imprisonment of  either description for  a term  which may  extend  to  ten  years’; section 305  provides that  punishment  for  abetment  of  a suicide of  a child  or insane  person shall  be  ’death  or imprisonment  for  life  or  imprisonment  for  a  term  not exceeding ten  years’; section  307 provides that punishment for an  attempt to  commit murder accompanied by actual hurt shall be  imprisonment for  life or  imprisonment of  either description  which   may  extend  to  ten  years;  so  also, voluntarily causing hurt in committing robbery is punishable under sec.  394 with  imprisonment for life or with rigorous imprisonment for  a term which may extend to ten years. Sec. SS I.P.C.  uses the  two expressions  in  contra-distinction with each  other and says that an appropriate Government may in every  case in  which sentence  of imprisonment  for life shall  have   been  passed   commute  the   punishment   for imprisonment of  either description for a term not exceeding fourteen years;  similarly, section 433(b) Cr. P.C. uses the

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two expressions  in  contra-distinction  with  one  another. Having regard  to such distinction which is being maintained in both  the Codes  it will  be difficult  to slur  over the distinction on  the  basis  that  life  convicts  should  be regarded as  having been  sentenced to  life-term or  to say that  the   two  could   be  understood  as  interchangeable expressions because  basically the  life term of any accused is uncertain. Further, sec. 57 I.P.C. Or the Remission Rules contained in Jail Manuals (e.g. Para 516-B of Punjab/Haryana Jail Manual)  are irrelevant  in this  context.  section  57 I.P.C. provides that imprisonment for life shall be reckoned as equivalent  to imprisonment  for  twenty  years  for  the specific purpose  mentioned therein, namely, for the purpose of calculating  fractions of terms of punishment and not for all purposes;  similarly Remissions  Rules contained in Jail Manuals cannot  override statutory  provisions contained  in the Penal  Code and  the sentence  of imprisonment  for life will have  to be regarded as a sentence for the remainder of the natural life of the convict. The Privy Council in Pandit Kishori Lal’s(1)  case and  this Court  in Gopal  Godse’s(2) case have  settled this  position once and for all by taking the view  that a  sentence for  transportation for  life  or imprisonment for  life must  be treated as transportation or imprisonment for the whole of the 453 remaining period  of the  convicted person’s  natural  life. This view A has been confirmed and followed by this Court in two subsequent  decisions-in Ratan  Singh’s(l) case and Maru Ram’s case (supra). In this view of the matter life convicts would not fall within the purview of sec. 428, Cr. P.C.      The  next  submission  that  at  least  cases  of  life convicts who  n have been actually granted remissions either by the  State Government  under sec. 432 Cr. P.C. Or by Jail Authorities under  the relevant  Remission Rules  should  be treated as falling within the purview of sec. 428 because on the grant of remissions, their sentences become sentences of imprisonment for  a term  is also without any substance. The argument is  fallacious for two reasons. In the first place, an  order of remission passed by the State Government or by the Jail  Authorities does  not interfere  with  either  the conviction or  sentence recorded  by the Court which remains intact; it  merely affects  the execution  of  the  sentence passed by  the Court and frees the convicted person from his liability to undergo the full term of imprisonment and it is for this  reason that  an accused  person has every right to press his appeal against the conviction and sentence imposed upon him, full remission notwithstanding. (Vide: Puttawwa v. The State  of Mysore(2)  secondly, sec.  428 opens  with the words: "Where  an accused  person has,  on conviction,  been sentenced to  imprisonment for  a  term"  and  as  such  the section will come into play in cases where ’imprisonment for a term’  is awarded  on conviction  by a court and not where the convict’s  sentence becomes  a sentence  for a  term  on remission being granted by the Executive. In the latter case the section on its own terms would be inapplicable.      The last  submission has  been that  if convicts  other than life-  convicts are  entitled to the benefit of the set off under  sec. 428,  there is  no reason  why life convicts should be  denied the advantage of this beneficial provision and in  this behalf it was pointed out that such an argument has found  favour with  the Gujarat  High Court  in  Kalidas Vanmalibhai’s case  (supra). In our view the question is not whether the  beneficient provision  should  be  extended  to life-  convicts   on  a   priori  reasoning   or   equitable consideration but whether

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454 on true  construction the  section comprises  life  convicts within its purview and on construction it is not possible to hold that  they do. Moreover, if the objects and reasons for introducing sec.  428 anew  in the  Code, as  set out by the Joint Committee  in its  Report are  taken into  account, it will appear  clear that  cases of  life convicts  were never intended to be covered by the provision. The Joint Committee has stated  the objects  and reasons  for  introducing  this provision in the Code thus:           "The Committee has noted the distressing fact that      in many  cases accused persons are kept in prison for a      very long  period as  under-trial prisoners and in some      cases the  sentence of  imprisonment ultimately awarded      is a  fraction of  the period  spent in  Jail as under-      trial prisoner.  Indeed, there  may even be cases where      such a  person is acquitted. No doubt, sometimes courts      do take  into account the period of detention undergone      as  under-trial  prisoner  when  passing  sentence  and      occasionally the sentence of imprisonment is restricted      to the period already undergone. But this is not always      the case  so that  in many cases, the accused person is      made to  suffer jail  life for  a  period  out  of  all      proportion to the gravity of the offence or even to the      punishment provided  in the  statute. The Committee has      also noted  that a  large  number  of  persons  in  the      overcrowded jails  of today  are under-trial prisoners.      The new  clause seeks  to  remedy  this  unsatisfactory      state of affairs." It is obvious that the mischief sought to be remedied has no relevance where  gravity of  offence requires the imposition of imprisonment for life      Having regard to the above discussion, it is clear that the benefit of the set off contemplated by sec. 428 Cr. P.C. would not  be available  to life  convicts. In our view, the decision of  the Gujarat  High Court  in the case of Kalidas Vanmalibhai is  erroneous and  the contrary  view  taken  by Kerala High  Court in Kanthalot Karunan & others v. State of Kerala(1) by  Bombay High  Court in  Rajahusein  Gulamhusein Lakhani v. The State of Maharashtra,(Z) Rafiq Abdul 455 Rehman v. The State of Maharashtra(l) and by Rajasthan- High Court in Bhimsen v. The State of Rajasthan(2) is correct. In this view  of the  matter,  the  impugned  order  dated  2nd February, 1982  passed by  the  Respondent-State,  being  in conformity with  sec. 428  Cr. P.C.,  is perfectly legal and valid.      In the result, the writ petition is dismissed. H.L.C.                                  Petitions dismissed. 456