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CASE NO.: Writ Petition (crl.)  45 of 1998

PETITIONER: Md. Munna                                                        

RESPONDENT: Union of India & Ors.

DATE OF JUDGMENT: 16/09/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T WITH

WRIT PETITION [CRL.] NO.  50 OF 2003

Kartick  Biswas                                         ..      Petitioner

Vs. State of West Bengal & Ors.                             ..      Respondents

K.G. BALAKRISHNAN, J.

       The petitioner in this writ petition under Article 32 of the  Constitution  had been found guilty of the offence of murder under  Section 302 read with Section 34 IPC by the Sessions Court and had  been undergoing sentence of  imprisonment for life.  His conviction  and sentence was affirmed by the High Court and later confirmed by  this  Court.     The  petitioner alleges that he has already undergone   more than 21 years imprisonment at the time of filing of the writ  petition and contended that his further detention is illegal and that he  is liable to be set  at liberty forthwith, for which he seeks a writ  of  habeas corpus  and prays for payment of compensation for his  alleged illegal detention beyond  the period of fourteen years.

       According to the petitioner, the length of the duration of the  imprisonment for life is equivalent to 20 years imprisonment and that  too subject to further remission admissible under law.   He contends  that on completion of this term he was liable to be released under rule  751(c)  of the West Bengal Jail Code.   He relies on the Explanation to  Section 61 of  the West Bengal  Correctional Services Act, 1992  (West  Bengal Act XXXII of 1992) whereunder the imprisonment for life is  equated to a term of  20 years imprisonment.

       Another contention raised by the petitioner is that the petitioner  was sentenced to "imprisonment for life", a punishment introduced by  the Code of Criminal Procedure (Amendment) Act 26 of 1955  as one  form of punishment distinct from the punishment of rigorous  or simple  imprisonment  shown in  clause (4) of Section 53 of the Code of  Criminal Procedure.   According to the petitioner,  the Executive  authorities have converted  it into "rigorous imprisonment for life" and  this according to the petitioner was not warranted by the provisions of  the law and the same  can be done only by commutation of  the  punishment under Section 55 of the Indian Penal Code to rigorous  imprisonment for a term not exceeding 14 years.   In other words, the  argument of the petitioner is that imprisonment for life shall not be  treated as rigorous imprisonment and it would only be a simple

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imprisonment till a proper commutation order is passed under Section  55 of the IPC.

       The petitioner has  also raised another contention that  imprisonment for life has not been made legally executable  in jail  either under the Criminal Procedure Code  1898 or 1973 or any other  law and the officer in charge of jail can be the person at the place  envisaged under Section 32 of the Prisoners’ Act (Act 3 of 1900) just  for the intermediate custody and that he is bound to deliver the person  over to the appropriate authority and custody for the purpose of   removal to the  places for carrying out or executing the sentence  and  in this behalf reliance was placed on the Forms of Warrant of  Commitment prescribed under Section 383 and 386 of the Cr.P.C.  1898.

       Lastly the petitioner contended that  in any case the petitioner is  liable to be released from detention on completion of  twenty years  imprisonment.

       In order  to  deal with  the contentions advanced by the  petitioner, it is necessary to look into the provisions of Section 53 of  the Indian Penal Code.   Clause ’secondly’ of Section 53 relating to  "transportation"  was deleted and in its place "imprisonment for life"  was introduced by Act 26 of 1955 with effect from 1.1.1956.   The  amended Section 53 reads as follows :

"53.  Punishment. \026The punishments to which offenders  are liable under the provisions of this Code are \026

First  --  Death; Secondly.--  Imprisonment for life \005\005\005\005\005\005.. Fourthly -  Imprisonment, which is of two descriptions,  namely\027 (i)     Rigorous, that is, with hard labour; (ii)    Simple; Fifthly \026 Forfeiture of property; Sixthly -  Fine."  

       Section 53  provides for distinct categories of punishments to  which offenders are liable to be punished for the offences enumerated  in the IPC.   The punishment of "transportation" was deleted and was  substituted by "imprisonment for life".    Prior to the commencement  of Act 26 of 1955,  all prisoners  sentenced to "transportation"  for a  fixed term  or for life were not invariably deported to the overseas  penal settlements in the island of Andaman.   The prisoners were  divided into two categories and those who were found eligible for  deportation were alone sent to the penal settlements.  The other  prisoners were confined in one of the jails within the country under  Section 32 of the Prisoners Act, 1900.   Section 32 of the Prisoners  Act,  1900 specifically  deals with  persons under sentence of  "transportation"   Section 32 reads as follows :

"32.   Appointment of places for confinement of persons  under sentence  of transportation  and removal thereto:-

(1)     the State Government may appoint  places within  the  State to which persons under sentence of  transportation shall be sent, and the State  Government or some officer duly authorized in this  behalf by the State Government shall give orders for  the removal of such persons to  the places so  appointed, except when sentence of transportation is  passed on a person already undergoing  transportation under a sentence previously passed

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for another offence.

(2)     In any case in which the State Government is  competent under sub-section (1) to appoint places  within the State and to order removal thereto of  persons under sentence of transportation, the  State  Government may appoint such places in any other  State by agreement with the State Government of  that State and may by like agreement give orders or  duly authorized some officers to give order for the  removal thereto of such  persons."

       Under sub clause (2) of Section 32, the State Govt. is  empowered to appoint places within the State and in other States with  their consent where prisoners punished for transportation could be  lodged for undergoing their sentences.   These convicted persons were  kept in detention for the purpose of carrying out the execution of their  sentences.   The contention of the petitioner is that it is only ’place’ or  ’places’ within or outside the State in India for temporary custody of  the person sentenced to transportation and it shall not  be jails and  under Section 32 of the Prisoners Act they cannot be kept in jail.  The  further argument of the petitioner’s counsel is that  when the  transportation was replaced by the sentence of imprisonment for life,  the same  provision would apply  and there cannot be  detention of the  convicted persons in jails pursuant to the sentence of imprisonment  imposed on him.    The counsel for the petitioner would further argue  that sentence of imprisonment for life is impossible to be carried out in  view of the provisions of Section 32 of the Prisoners Act 1900 and  therefore the conviction is illegal.  

 The above contention of the petitioner’s counsel is only to be  rejected.   The imprisonment  of the life convicts are being carried out  on the strength of the order passed by the court.   The provisions  contained in the  Prisoners Act are only procedural in nature.   The  preamble to the  Act itself states the Act is meant to consolidate the  law relating to prisoners confined by order of a court and Section 32 of  the Prisoners Act 1900 specifically says about the persons under  sentence of transportation and when the punishment of transportation  itself was deleted, the provisions of Section 32  regarding the  temporary custody of the prisoners, there is no relevance for the  appointed places within the State or outside the State   for a person  under sentence of transportation.  The prison authorities are bound to  keep the persons who are sentenced to imprisonment for life  in jails.    Of  course,  some of the  provisions in the Prisoners Act, 1900 were  not suitably amended so as to be in conformity with the sentence of  life imprisonment introduced by Act NO. 26 of 1955.   That does not  make the detention illegal.   A similar plea was raised in Naib Singh  vs. State of Punjab & Ors. (1983) 2 SCC 454 and this Court held:

"9.  \005\005\005\005\005\005In other words,  the contention was that  under the power for confinement of  transportation  prisoners the State Government cannot appoint jails as the  ’places’ for their confinement.   We fail to appreciate as to  why such a qualification or limitation  on the power of the  State Government under Section 32 should be read into   with section.   Having regard to the unqualified and clear  language of the section there is no reason why the State  Governments cannot appoint jails as the "places" for  confinement of transportation prisoners.   Counsel relied  upon two decisions of Lahore High Court in Kundal Lal v.  Emperor and in the matter of Khairati Ram to support  his contention but in our view neither of these decisions   lays down anything as suggested by counsel\005\005\005"

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"10.  Apart from Section 32 of the Prisoners Act, Section  383 of Cr.P.C., 1898 and Section 418 of Cr.P.C. 1973 also  contain the necessary legal authority and power under  which a criminal court can by issuing a warrant direct the  execution or carrying out of a sentence of life  imprisonment in local jails.   Both the sections appear in a  chapter dealing with ’Execution of Sentences’ under the  respective Codes and are identically worded and each one  provides that "where the accused is sentenced to  imprisonment for life the Court passing the sentence shall  forthwith forward the warrant to the Jail or other place in  which he is, or is to be, confined, and, unless the accused  is already confined in such jail or other place, shall forward  him to such jail or other place with the warrant."  It is  obvious that the ’confinement’ of the convict in the jail  pursuant to the court’s  warrant issued under the sections  is for the purpose of executing or carrying out of the  sentence.    The proviso to sub-section (1) of Section 418  and sub-section (2) of Section 418 make the position  abundantly clear that the expression ’confinement’ has  been used in the sense of execution or carrying out of the  sentence.   Some argument based on the concerned Forms  of Warrant of Commitment prescribed under both the  Codes (of 1898 and 1973) was made by counsel for the  petitioner but it is obvious that non-prescription of  appropriate Forms of Warrant of Commitment would not  affect the legality of the detention in local jails so long as  the requisite legal authority and power in that behalf is  vested in the criminal court.  Moreover, the Forms  prescribed under the codes cannot be regarded as  exhaustive and an appropriate warrant of commitment  directing the execution or carrying out of sentence of life  imprisonment in jail could be adopted and issued by the  court so long as in law the requisite authority and power in  that behalf is vested in the court."

       Another contention of the petitioner’s counsel is regarding the  nature of the sentence of imprisonment for life and according to the  petitioner’s  counsel it cannot be equated with rigorous imprisonment  for life.    The petitioner contends that the rigorous imprisonment is a  separate punishment under clause 4(1)  of  "fourthly" of Section 53  IPC.    The petitioner’s contention is that the R.I. could be imposed  only  under  clause "fourthly" of Section 53 in respect of imprisonment  for a term.     The counsel would further contend that a  person  sentenced to imprisonment for life could be subjected to R.I. for life   only under an order of detention passed under Section 55 of the IPC.     This contention also is without any merit.    The sentence of  imprisonment for life  as noticed earlier was substituted for  "transportation".    There are ample materials to show that a person  who was sentenced to transportation had always been subjected to   hard labour.    Transportation to overseas penal settlements implied  hard labour for the concerned convicts and the punishment of  deportation beyond seas was  considered to be the most dreaded  punishment and there  were series of rules and regulations governing  management and control of penal settlements in the Port Blair and  Nicobar islands.   The Andaman & Nicobar  Jail Manual, a Govt. of  India publication of 1908 contains several rules and regulations  and   chapter 2 thereof deals with classification of convicts and clause (3) of  Section 17 specifically says that transportation entails hard labour and   strict discipline with only such food as is necessary for health and  mitigation of the above is an indulgence  which at any time could be  withdrawn  in whole or in  part.     It  is difficult to understand how

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such a punishment could be deemed to have been substituted by  simple  imprisonment for life.    Moreover Section 53A of the IPC  makes the position clear.   Clause 2 of Section 53A reads as follows :  

"53A. Construction of reference to transportation. \026 (1)\005\005\005\005 (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,  1955 (26  of 1955), the offender shall be dealt with in the same  manner as if  sentenced to  rigorous imprisonment for the  same term."

Therefore, it is clear that if a person is sentenced to  transportation for a term, the same is  converted to rigorous  imprisonment for the same duration.    Naturally, the transportation  for life will only be treated as rigorous imprisonment for life.         

       If a portion of the period of transportation for life is to be treated  as sentence of rigorous imprisonment for the same term, naturally, the  entire transportation period is to be treated as ’rigorous imprisonment  for life.’   Imprisonment for life is a class of punishment different from  ordinary imprisonment which could be of two descriptions, namely,  "rigorous"  or "simple".   It was unnecessary for the Legislature to  specifically mention that the imprisonment for life would be rigorous  imprisonment for life as it is imposed as punishment for grave  offences.

       In K.M. Nanavati vs. State of Maharashtra   AIR 1962 SC 605  the  High Court of Bombay had sentenced the offender to undergo  rigorous imprisonment for life.  The appeal was dismissed by this Court  with the observation that the High Court rightly passed the sentence of  imprisonment for life.    Therefore, we are of the view that   "imprisonment for life" is to be treated as "rigorous imprisonment for  life".  

In Naib Singh’s case (supra), it was further held as under :

"17.  \005\005\005\005. In  the first place, a distinction between  ’imprisonment for life’  and "imprisonment for a term" has  been maintained in the Penal Code in several of its  provisions   Secondly, by its very terms Section 60 is  applicable to a case where "an offender is punishable with  imprisonment which may be of either description" and it is  only in such case that it is competent for the court to  direct that "such imprisonment  shall be either wholly  rigorous  or wholly simple or that any part of such  imprisonment shall be rigorous and the rest simple."   And  it is clear that whenever an offender is punishable with  "imprisonment for life"  he is not punishable with  "imprisonment which may be of  either description", in  other words Section 60 would be in applicable.

18.  However, for the reasons discussed above and in view  of the authoritative pronouncements made by the Privy  Council and this Court in Kishori Lal case and Gopal  Godse case respectively, it will have to be held that the  position in law as regards nature of punishment involved in  a sentence of imprisonment for life is well settled and the  sentence of imprisonment for life has to be equated to  rigorous imprisonment for life\005\005\005\005\005\005.."

       The counsel contended that by virtue of Rule 751(C) of the  West

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Bengal Jail Code, the petitioner was liable to be released from jail on  completion of twenty years.  He  also relied on the Explanation to   Section 61 of the  West Bengal  Correctional Services Act 1992 (W.B.  Act No. XXXII of 1992)  wherein the imprisonment for life is equated  to a term of twenty years simple imprisonment for the purpose of  remission.    But there is no provision either in the Indian Penal Code  or in the Code of Criminal Procedure whereby life imprisonment could  be treated as fourteen years or twenty years without there being a  formal remission by the appropriate government.   Section 57 of  Indian Penal Code 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 above Section is applicable for the purpose of remission  when the matter is considered by the government under the  appropriate provisions.  This very plea was placed before the Judicial  Committee of the Privy Council in  Kishori Lal vs. Emperor  AIR (32)  1945 PC 64 and the Privy Council held  as under :  

"Assuming that the sentence is to be regarded as one of  20 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 20 years or that the convict is necessarily  entitled to remission."

       The Prisons’ Rules are made under the Prisons Act and the  Prisons Act by itself does not confer any authority or power to  commute or remit sentence.    It only provides for the regulation of  the prisons and for the terms of the prisoners confined therein.    Therefore, the West Bengal Correctional Services Act or the West  Bengal Jail Code do not confer any special right on the petitioner  herein.

       In Godse’s case (supra), the Constitution Bench of this Court  held that the sentence of imprisonment for life is not for any definite  period and the imprisonment for life must, prima facie, be treated as  imprisonment for  the whole of the remaining period of the convict  person’s natural life.    It was also held in paragraph 5 as follows :

"\005\005\005\005..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 prime facie be treated as transportation or  imprisonment for the whole of the remaining  period of   the convicted person’s natural life."

Summarising  the decision, it was held in para 8  as under:

"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

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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 \026  ordinary, special and State \026 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 appropriate  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."

       We are bound by the above dicta laid down by the Constitution  Bench and we hold that life imprisonment is not equivalent to  imprisonment for fourteen years or for twenty years as contended by  the petitioner.

Thus, all the contentions raised by the petitioner fail and the  petitioner is not entitled to be released on any of the grounds urged in  the writ petition so long as there is no order of remission passed by  the appropriate government in his favour.   We make it clear that our  decision need not be taken as expression of our view that petitioner is  not entitled to any remission at all.   The appropriate government  would be at liberty to pass any appropriate order of remission in  accordance with law.    

       Petitioner was released on bail by an order passed by this Court  on 27.11.1998.   We vacate that order.   The respondents would be at  liberty to take the petitioner into custody and as regards remission the  State Government may pass any appropriate order in accordance with  law.

       The writ petition is dismissed.

       The connected Writ Petition No. 50 of 2003 is also dismissed in  terms of the  judgment in the main writ petition.