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PETITIONER: NAIB SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB & ORS.

DATE OF JUDGMENT19/04/1983

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

CITATION:  1983 AIR  855            1983 SCR  (2) 770  1983 SCC  (2) 454        1983 SCALE  (1)425

ACT:      Indian Penal  Code, 1860-s. 302 and ’Secondly’ of s. 53 - Prisoner sentenced to ’imprisonment for life’ not entitled to  be   set  free   after  undergoing  14  years’  rigorous imprisonment unless  specific order  commuting  sentence  is passed under s. 55 I.P.C. or s. 433 (b), Cr. P.C., 1973.      Indian Penal  Code, 1860-s.  302 read with ’Secondly of s.  53   and  s.  32  of  Prisoners  Act,  1900-Sentence  of ’imprisonment for  life’ is  executable in  jails within the country.      Prisoners  Act,   1900-s.  32-State  Governments  could appoint jails  as  ’places’  for  confinement  of  prisoners sentenced to transportation for a term or for life.      Code of  Criminal Procedure,  1898-s. 383-and  Code  of Criminal  Procedure,   1973-s.  418-These   Provisions  also empower Criminal  Court to  direct execution  of sentence of ’imprisonment for life’ in local jails.      Indian Penal  Code, 1860-s. 302 and ’Secondly’ of s. 53 read with  sub-ss. (1)  and (2)  of s. 53 A-’Imrisonment for life’ means  ’rigorous imprisonment for life’-Criminal Court not obliged to keep in view Provisions of s. 60 I.P.C. while passing sentence of ’imprisonment for life’.

HEADNOTE:      The petitioner  had been  originally sentenced to death under s.  302, I.P.C.  but on  a mercy petition preferred by him, the  sentence had  been commuted  to ’imprisonment  for life’. He  had undergone  actual rigorous imprisonment of 11 years, 5  months and  10 days  but, inclusive of remissions, the total  imprisonment worked out to 22 years, 2 months and 17 days.      In support  of the  claim that the petitioner should be released forthwith  it was  contended: (i) The detention ’in jail’ of  a person under ’imprisonment for life’ is unlawful because, after  the enactment  of s.  117 of  the  Cr.  P.C. (Amendment) Act  (26 of  1955), though  persons  who  commit murder have  been  made  liable  to  the  newly  substituted punishment of ’imprisonment for life’ instead of the earlier sentence of  ’transportation for  life’ under s. 302, I.P.C. read with ’Secondly’ of s. 53, I.P.C., this new sentence has not been  made legally  executable in  jail;  and  like  the sentence of ’transportation for life’, it remains executable

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by way of banishment or exile to the ’places’ envisaged 771 under s.  32 of  the Prisoners  Act, 1900; (ii) The Amending Act (26  of 1955)  did not  change the  nature of punishment formerly known  as ’transportation  for life’  by calling it ’imprisonment for  life’ and  the latter,  like the  former, remains distinct  from the punishment of ’rigorous or simple imprisonment’ enlisted  at item  ’Fourthly’ in s. 53, I.P.C. and, it  is only  the punishment enlisted at item ’Fourthly’ (which must  mean ’imprisonment  for a  term’) that  can  be executed in  jail either in rigorous manner or simple; (iii) Since  the  sentence  of  ’imprisonment  for  life’  can  be executed only  by the convict being ’removed to the place or places’  required  to  be  appointed  under  s.  32  of  the Prisoners Act, 1900 and since no such ’place or places’ have been appointed  under the  aforesaid provision  by the State Government, the  executing authorities  are obliged  by  the present state  of the  law to  ’execute’ or  ’carry out’ the said sentence  in jail indirectly by way of commuting it for imprisonment of  either description for a term not exceeding 14 years  under s. 55, I.P.C. or s. 433 (b), Cr. P.C., 1973; and (iv)  Although no  such formal  order of commutation had been  passed   in  the  case,  the  petitioner  having  been subjected to rigorous imprisonment for a period of 14 years, the State Government should be deemed to have passed such an order.      Counsel for respondents contended: (1) that on both the aspects touching  the punishment of ’imprisonment for life’, namely, the  place of  its  executability  as  well  as  its nature, the  contentions urged  on behalf of the petitioners have been  concluded  by  Pandit  Kishori  Lal’s  and  Gopal Godse’s cases; (ii) that since the sentence of ’imprisonment for life’  can be  legally  executed  in  jails  within  the country there  is no  question of  releasing the  petitioner forthwith, in  the absence of an order of commutation passed by the State Government either under s. 55, I.P.C. or s. 433 (b), Cr.  P.C., 1973, simply because he has served 14 years’ of rigorous imprisonment.      Dismissing the Petition, ^      HELD 1.  Since the  petitioner’s sentence  has not been commuted for  imprisonment for a term not exceeding 14 years either under  s. 55,  I.P.C. or s. 433 (b), Cr. P.C. 1973 by the appropriate  Government,  he  is  liable  to  serve  his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse’s case. [790 D]      Gopal Godse’s case, [1961] 3 SCR 440, referred to.      2. The  sentence of  ’transportation’ either for a term or for  life was executable in jails within the country. The same position  must obtain in regard to persons sentenced to ’imprisonment for life’ on or after January 1, 1956. [784 F]      (1)  The law  on the  point has been clearly enunciated in Pandit  Kishori Lal’s  case where  the Privy Council held that "a  prisoner sentenced to transportation may be sent to the Andamans  or may  be kept  in one  of the jails in India appointed for  transportation prisoners".  There is no force in the  contention that the provisions of law referred to by the Privy Council for basing this conclusion did not warrant the said conclusion.[778 H-779G]      Pandit Kishori Lal’s case, A.I.R. 1945 P.C. 64 referred to.      (ii) Even  prior  to  the  coming  into  force  of  the Amending Act  26 of 1955 (i.e.,prior to January 1, 1956) all prisoners sentenced to transportation for a 772

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term of  years or  for life  were not invariably deported to the   overseas    penal   settlement    in   the   Andamans. Transportation prisoners  were divided  into two categories, namely, those  who were  eligible for  deportation and those who were not (who generally included convicts suffering from specified diseases  or infirmities) and only the former were deported to  Andamans while  the latter  were transferred to and confined  in one  or the  other jails within the country under s.  32 of  the Prisoners  Act of 1900 and in course of time their  cases were  referred  to  State  Government  for passing an  order s.  55, I.P.C.  or s. 402, Cr. P.C., 1898. [780 F-H]      (iii) Under  s. 32 of the Prisoners Act, 1900 the State Government has  been empowered  to appoint places within the State, and  places in other States with their consent, where transportation prisoners  could  be  lodged  for  undergoing their  sentences.   It  is   obvious  that   the  expression ’confinement’ occurring  in the marginal note of the section means the  prisoners’ detention in the place for the purpose of executing  or carrying  out their sentence. 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. A sentence of ’transportation’ either for a term or for life could be,  and a sentence of "imprisonment for life" can be, made executable in local jails by constituting such jails as the ’places’ within the meaning of s. 32 under orders of the State Governments. [781 F-782 F]      Kundan Lal  & Ors.  v. Emperor, A.I.R. 1931 Lahore 353; and Re: Khairati Ram, A.I.R. 1931 Lahore 476 distinguished.      (iv)  Paragraph  719  of  the  Punjab  Jail  Manual  as published in  1916 provided that every prisoner sentenced to transportation for  a term  or for  life, if  ineligible for deportation to  the Andamans,  shall be  transferred to  and confined in  one or  other of  the jails  specified  therein which  were   constituted  ’places’  for  the  detention  of transportation prisoners  within the  Punjab under  s. 32 of the Prisoners  Act, 1900.  This paragraph  was amended  some time later  and the  words "if ineligible for deportation to the Andamans"  were deleted  as is  evident from the amended Para 719  appearing in  the Punjab  Jail Manual published in 1975. It  is therefore  clear that  since then,  so  far  as Punjab is concerned, no transportation prisoner was deported overseas and  all transportation prisoners were detained and confined in local jails. [783 F-784 E]      (v) Section  383, Cr.  P.C., 1898 and s. 418, 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. It is obvious that the  ’confinement’ of  the convict  in jail pursuant to the Court’s  warrant issued  under the  sections is  for the purpose of  executing or  carrying  out  the  sentence.  The proviso to  sub-s. (1)  of s.  418 and  sub-s. (2) of s. 418 make the  position  abundantly  clear  that  the  expression ’confinement’ has  been used  in the  sense of  execution or carrying out of the sentence.                                    [782 G-783 C] 773      3.   The position  in law  as  regards  the  nature  of punishment involved in a sentence of ’imprisonment for life’ is well  settled. The  sentence of imprisonment for life has to be equated with rigorous imprisonment for life. [790 B]

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    (i)  Transportation to overseas penal settlement always implied hard  labour for  the concerned convicts. Sub-s. (3) of s.  17 of  the ’Andaman and Nicobar Manual’, a Government of  India   publication  of   the  year  1908,  states  that transportation means  hard labour  under strict  discipline. Section 146 says that the hours of work are regulated by the Superintendent and  they shall ordinarily consist of 9 hours daily. These  provisions clearly bring out the fact that the sentence of  transportation either  for life  or for  a term inexorably  ment  rigorous  imprisonment  in  the  sense  of exaction of  hard labour from the convict. This position has been  judicially  noticed  in  Pandit  Kishori  Lal’s  case. Therefore, on  Counsel’s  own  argument,  the  sentences  of ’transportation for  life’ and ’imprisonment for life’ being similar in  nature, the  sentence of ’imprisonment for life’ must mean ’rigorous imprisonment for life’. [786 E-H]      Pandit Kishori Lal’s case, A.I.R. 1945 P.C. 64 referred to.      (ii) Sub-s. (1)  of s. 53-A provides that any reference to ’transportation  for life’  in any other law for the time being in  force or  in any instrument or order having effect by virtue  of any  such law  or of  any enactment  repealed, shall be  construed as  a  reference  to  ’imprisonment  for life’. Under  sub-s. (2)  of s.  53-A, I.P.C. Parliament has expressly stated  that a  sentence of  transportation for  a term has  to be  executed or  carried out  as if  it were  a sentence of  rigorous imprisonment  for the  same  term.  If transportation for  a term,  has been  equated  to  rigorous imprisonment for  the same  term, by  necessary implication, the sentence  of ’transportation  for life’, now substituted by ’imprisonment  for life’,  which is  awardable  for  more serious, or  more grave  or more  heinous crimes  must  mean rigorous imprisonment for life. [787 A-F]      Gopal Godse’s  ease, [1961]  3  S.C.R.  440;  State  of Madhya Pradesh  v. Ahmadulla, A.I.R. 1961 S.C. 998; and K.M. Nanavati v.  State of  Maharashtra,  A.I.R.  1962  S.C.  605 referred to.      4.   It is  not possible to sustain the view that while passing the  sentence of  imprisonment for  life a  criminal court should keep in view the provisions of s.60, I.P.C. and choose one  or the  other form  so as  to clarify  the exact nature  of  punishment  intended  to  be  inflicted  on  the accused.  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, s. 60 is applicable to a case where "an offender is punishable with imprisonment which may  be of  either description".  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,  s.  60  would  be inapplicable. [789 D-H]      Mathammal Saraswathi  v. The  State, A.I.R. 1957 Kerala 102, overruled. 774

JUDGMENT:      ORIGINAL JURISDICTION:  Writ Petition (Crl.) No. 850 of 1982      (Under article 32 of the Constitution of India.)      S.B. Malik and K.B. Rohtagi for the Petitioner.      Harbans Singh and D.D. Sharma for the Respondents.      The Judgment of the Court was delivered by

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    TULZAPURKAR, J.  By this writ petition under Art. 32 of the Constitution  the petitioner  Naib Singh  is challenging his continued  detention in  jail and is seeking an order in the nature  of habeas  corpus claiming  that he  has  justly served  more  than  the  maximum  sentence  of  imprisonment prescribed under law and should, therefore, be released.      The petitioner  was originally  sentenced to  death  on 18.1.1969 by  the learned  Sessions Judge,  Ferozepore,  for committing an  offence of  murder under  s. 302 Indian Penal Code. Later, on a mercy petition preferred by him, his death sentence  was   commuted  by   the  Governor  of  Punjab  to imprisonment for  life, which  he has been undergoing in the Central Jail  at Bhatinda. Excluding the period spent by him as an  under-trial prisoner  (in respect  whereof  no  life- convict is entitled to the benefit of a set-off under s. 428 Cr. P.C. 1973 as interpreted by this Court in Kartar Singh’s (1) case),  the petitioner appears to have undergone a total imprisonment of  22 years  2 months and 17 days inclusive of remissions as under:                          Yrs.       months       days ____________________________________________________________ (a) actual rigorous     imprisonment after     conviction.           11          5            10   (b) Jail remissions      2          3             6   (c) Govt. remissions     8          6             1                           _____________________________                Total:      22         2             17                           ________________________________      Admittedly, neither  his  sentence  has  been  remitted fully nor commuted for imprisonment for a term not exceeding 14 years either 775 under s.  55 I.P.C.  or s.  433(b)  Cr.  P.C.  1973  by  the appropriate Government, with the result that he is liable to serve his sentence until the remainder of his life in prison under the  ruling of  this Court  in Gopal  Godse’s(1) case. However, on  the basis  of the  aforesaid particulars, which are not  disputed, the  petitioner’s case  is  that  he  has positively  undergone   more  than   14  years  of  sentence including remissions and since through the Officer-in-Charge of jail  the Government  got executed  his sentence  in jail custody in  the form  of rigorous  imprisonment, that  is by subjecting him  to hard  labour and  also  by  awarding  him remissions the  Government must  be deemed  to have commuted his sentence  to 14  years either  under s.  55 I.P.C. or s. 433(b) Cr.  P.C. 1973,  notwithstanding that no formal order in that  behalf was made by the State Government and as such his continued  detention  in  jail  is  illegal  and  he  is entitled to be released forthwith.      Counsel for  the petitioner elaborated the petitioner’s case thus: Section 53 I.P.C. prescribes five or six distinct categories of punishment to which offenders are liable under the Indian  Penal Code.  Prior to its amendment by s. 117 of the Code  of Criminal Procedure (Amendment) Act (26 of 1955) that section  prescribed the  punishment of ’Transportation’ at item ’Secondly’ but that was substituted by ’Imprisonment for life’  by the said Amending Act (26 of 1955) with effect from January  1, 1956.  According to  counsel though persons who commit  the offence  of murder  have been made liable to the newly  substituted punishment of ’Imprisonment for life’ instead of the earlier sentence of ’transportation for life’ under s.  302 I.P.C.,  read with ’secondly’ of s. 53 I.P.C., this new sentence of ’Imprisonment for life’ (either awarded originally by the Sessions Court or by way of commutation of

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death sentence  by the  appellate Court  or the  appropriate Government  or   authority)  has   not  been   made  legally ’executable’ in  jail under  either  the  Code  of  Criminal Procedure 1898  or 1973  or any other law or under any writ, order, or  warrant of the Court, by the Officer-in-Charge of jail  and   like  ’sentence  of  transportation  for  life’: imprisonment  for   life’  remains   executable  by  way  of banishment or exile to the ’places’ envisaged under s. 32 of the Prisoners  Act (3  of 1900) and the Officer-in-Charge of the jail  is merely  mandated to keep this convict person in intermediate custody  only and  is required  to ’deliver him over’ to  appropriate authority  and custody for the purpose of ’removal  to the  places’  aforesaid,  for  executing  or carrying out  the sentence  and in  this behalf reliance was placed on 776 the prescribed  Forms of Warrant of Commitment under ss. 383 and 386 of the Cr. P.C. 1898 as also under s. 418 of the Cr. P.C. 1973  and, therefore, the detention in jail of a person under ’Imprisonment  for life’ is unlawful. Counsel, further urged that  the Amending Act (26 of 1955) did not change the nature of  punishment formerly  known as ’transportation for life’ by  calling it  ’imprisonment for life’ and the latter like the  former remains  distinct from  the  punishment  of ’rigorous  or   simple  imprisonment’   enlisted   at   item ’Fourthly’ in  s. 53  I.P.C. and  it is  only the punishment enlisted at  item ’Fourthly’  (which must  mean imprisonment for a  term) that  can be  executed  in  a  jail  either  in rigorous  manner   or  simple  depending  upon  the  Court’s direction contained  in the  Warrant of commitment, in other words, the  two punishments,  namely, imprisonment for life’ and ’imprisonment  (for a  term)  rigorous  or  simple’  are distinct punishments  as regards their nature, the place and the mode of their execution and the Officers executing them. In substance,  counsel’s contention  has been that in regard to the  sentence of life imprisonment the place where it has to be  executed or  carried out has not been appointed under s. 32  of the  Prisoners Act,  1900 nor  has its nature been prescribed, that  is to say, it is not necessarily rigorous. In support  of the latter aspect regarding the nature of the punishment counsel  relied upon  the fact  that even the Law commission in  its 39th  Report dated 4th July, 1968 on "The Punishment of  Imprisonment for  Life under  the I.P.C." had recommended a  suitable amendment in the I.P.C. by inserting a specific  provision to  the effect: "Imprisonment for life shall be  rigorous" and  that the  said  recommendation  was reiterated by  it in its 42nd Report which suggests that the existing  Law   on  this   aspect  is  not  clear.  Counsel, therefore, urged  that since  the sentence  of ’imprisonment for life’,  like the  sentence of  ’transportation for life’ can be  executed only  by the  convict being ’removed to the place or  places’ required  to be  appointed  by  the  State Government under  s. 32  of the Prisoners Act 1900 and since no ’such  place or  places’ have  been appointed  under  the aforesaid provision  by the  State Government, the executing authorities are  obliged by  the present  State  of  law  to ’execute’  or   ’carry  out’   the  said  sentence  in  jail indirectly by way of commuting it for imprisonment of either description for  a term  not exceeding  14 years under s. 55 I.P.C. or s. 433(b) Cr. P.C. 1973. In other words, according to counsel,  in the  absence of  any proper authority of law warranting the  detention and  execution of  the sentence of such life  convict in  jail custody,  his detention  in such jail custody  will  have  to  be  regarded  as  illegal  and unlawful or  alternatively it  should be  held that  on  his

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being made to undergo 777 rigorous imprisonment  in jail  for a  period  of  14  years (inclusive  of  remissions)  he  would  be  entitled  to  be released from  jail as on the expiry of the aforesaid period his continued  detention would  be illegal.  It was  on  the basis of the aforesaid reasoning that counsel contended that although no  formal order  of commutation either under s. 55 I.P.C. or s. 433 (b) Cr. P.C. has been passed in the case of the petitioner,  the petitioner  having  been  subjected  to rigorous imprisonment  for a  period of  more than  14 years (inclusive of  remissions) the  State Government  should  be deemed to  have passed  such an order and the petitioner was entitled to be released forthwith.      On the other hand counsel for the respondents seriously disputed that either the old sentence of ’transportation for life’  or  the  new  sentence  of  ’imprisonment  for  life’ substituted by  the Amending  Act  26  of  1955  was  or  is executable only  by  way  of  banishment  or  exile  of  the convicts to overseas penal settlements or that the Officers- in-Charge of  jails could  not or cannot confine them in the jails within  the country  for executing or carrying out the sentences imposed  upon them.  Counsel  emphatically  denied that either the old sentence of ’transportation for life’ or the newly  substituted sentence  of ’imprisonment  for life’ (either awarded originally or by way of commutation of death sentence)  had  not  been  or  has  not  been  made  legally executable in  jails in the country and contended that there was and is ample legal authority warranting the execution or carrying out  of such  sentences in  the jails  through  the Officers-in-Charge thereof  and in  that behalf reliance was placed on  ss. 383-384  of the  old Cr. P.C. 1898 as well as ss. 418-419  of the present Cr. P.C. 1973 read with ss.3, 7, 15, 16,  29 and  32 of  the Prisoners  Act No. 3 of 1900 and certain executive  or administrative  orders  or  directions issued from time to time by State Governments; in particular reference was  made to Paragraphs 719 and 726A of the Punjab Jail Munual  whereunder transportation  prisoners (who would include life  convicts)  could  be  made  to  undergo  their sentences in  certain jails  in the country-such jails being constituted the ’place’ for their confinement under s. 32 of Act 3  of 1900,  and  counsel  urged  that  accordingly  the petitioner herein  has been  undergoing his sentence of life imprisonment in  the Central Jail, Bhatinda. Further, on the aspect of  the nature  of the  punishment counsel  contended that having regard to the insertion of a new section, s. 53- A in  the Indian  Penal Code by the Amending Act 26 of 1955, which is  in the nature of an Interpretation Clause it would be  clear  that  Parliament  intended  that  a  sentence  of ’imprisonment for  life’ should  be equivalent  to  rigorous imprisonment for  life. It  was pointed out that on both the aspects touching 778 the punishment of ’imprisonment for life’ (namely, the place of its  executability as well as its nature) the contentions urged on behalf of the petitioner have been concluded by two well-known judicial pronouncements, one of the Privy Council in Pandit Kishori Lal’s (1) case and the other of this Court in Gopal  Godse’s case  (supra) and  the position  in law on both the  aspects having been settled by those decisions the recommendation made by the Law Commission in its 39th Report as well as 42nd report will be of no avail to the petitioner and will  have to  be regarded  as having been made only for the purpose of removal of doubts and clarifying or declaring the existing  legal position. If, therefore, the sentence of

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’imprisonment   for   life’   is   nothing   but   ’rigorous imprisonment for  life’ and  can be  and  is  being  legally executed or  carried out  in one of the jails in the country in the  case of  the petitioner there will be no question of releasing him  forthwith simply  because he  has  served  14 years of  rigorous imprisonment (inclusive of remissions) in the absence  of an  order of commutation passed by the State Government either under s. 55 of the I.P.C. or s. 433 (b) of the Cr. P.C. 1973. The petitioner is, therefore not entitled to the relief sought by him.      From the  rival contentions  urged by counsel on either side as  summarised above  it will  appear  clear  that  the entire edifice  of  the  petitioner’s  claim  for  immediate release from  jail custody  is based  on two  premises : (a) inexcusability  of   the  sentence   of  life   imprisonment (formerly called  transportation for  life) in  jail through the Officer-in-Charge thereof under the existing law and (b) undefined nature  of punishment  to be  suffered  under  the sentence of  life  imprisonment  which  is  not  necessarily rigorous; but because he was made to undergo his sentence of life imprisonment  in jail  and that  too in rigorous manner for  more  than  14  years  (inclusive  of  remissions)  his sentence should be deemed to have been commuted by the State Government either under s. 55 I.P.C. or under s. 433 (b) Cr. P.C. 1973  without a  formal order  in that behalf and he be released forthwith. The question is whether the two premises on which his claim to immediate release rests are valid ?      On the  question whether  a sentence  of transportation for life  could be  executed in  jails within the country or the same  was executable only beyond the seas, the position, in our  view, has  been  clearly  enunciated  by  the  Privy Council in Pt. Kishori Lal’s case (supra). After considering the history  of the sentence of transportation, the relevant provisions of the Indian Penal Code, the Code of 779 Criminal Procedure  and the Prisoners Act, the Privy Council came to  the conclusion  that the  said  provisions  clearly showed that a sentence of transportation was not necessarily executable beyond  the seas.  It observed  at Page 66 of the Report thus :           "These sections make it plain that when a sentence      of transportation  has been  passed  it  is  no  longer      necessarily a  sentence of  transportation  beyond  the      seas.  Nowhere   is  any   obligation  imposed  on  the      Government either  of India  or  of  the  Provinces  to      provide  any  places  overseas  for  the  reception  of      prisoners. It  appears that  for many  years  the  only      place to  which they  have been  sent  is  the  Andaman      Islands are now in Japanese occupation. Their Lordships      have been  referred to various orders and directions of      an  administrative  and  not  a  legislative  character      showing what  prisoners are,  and are  not, regarded as      fit subjects  for transportation  thereto, and  showing      also  that   nowadays  only  such  of  those  prisoners      sentenced to transportation as may volunteer to undergo      transportation   overseas    are    sent    to    those      islands...........   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.........."      However, Counsel  for  the  petitioner,  made  a  brave attempt, of  course in  all  humility  to  submit  that  the provisions of  law referred  to by  the  Privy  Council  for basing its  aforesaid conclusion  do not  warrant  the  said conclusion and  with a  view to  canvas  his  submission  he elaborately dealt  with and  took  us  through  the  various provisions of  the Penal  Code, Criminal  Procedure Code and the  Prisoners  Act.  On  giving  our  careful  and  anxious consideration to  the matter  we have come to the conclusion that it is difficult to accept counsel’s submission.      Counsel pointed  out that  great reliance was placed by the Privy  council on  s. 58 of the Indian Penal Code, which was in  force then  (since repealed  by Amending  Act 26  of 1955), but urged that 780 that section merely provided for the temporary or transitory detention and  treatment  of  the  offender  in  local  jail pending his  deportation beyond  the seas and therefore that provision could  not  be  relied  upon  for  coming  to  the conclusion that  transportation prisoners  could be confined in local  jails for  undergoing their  entire sentences.  It must, however, be pointed out that the Privy Council has not solely relied  upon s.  58 I.P.C. for reaching its aforesaid conclusion. In fact, in that behalf, it has observed : "Were these  (ss.  53,  55  and  58  I.P.C.)  the  only  statutory provisions dealing  with the  matter, there  would  be  much force in the argument that s. 58 should be read as providing merely  for   the  temporary  or  transitory  detention  and treatment of  an offender while arrangements were being made for his  transportation beyond  the seas" and has not merely gone into the history of the sentence but also indicated the other provisions  of Criminal  Procedure Code  1898 and  the Prisoners Act  1900 which supported its conclusion. In other words, it  realised the fact that s. 58 I.PC. made provision for a transitory period but taken along with other statutory provisions  it   helped  to   reach  the   conclusion   that transportation prisoners were not necessarily required to be sent beyond  the seas  and in  that behalf it relied upon s. 368 (2)  Cr. P.C.  1898 and  particularly certain provisions like ss. 29, 31 and 32 of the Prisoners Act, 1900 as amended in 1903,  which, in its opinion, were decisive on the point. As  we  shall  point  out  presently,  the  other  statutory provisions read  with the orders of administrative character issued from time to time by the State Governments to which a reference has also been made in the judgment, do support the conclusion reached by it.      It may be pointed out-and this was not even disputed by the counsel for the petitioner-that even prior to the coming into force  of the  Amending Act  26 of  1955 (i.e. prior to 1.1.1956) all  prisoners sentenced  to transportation  for a term of  years or  for life  were not invariably deported to the  over   seas  penal   settlement  in  the  Andamans  but transportation prisoners  were divided  into two categories, namely those who were eligible for deportation and those who were not  (who generally  included convicts  suffering  from specified diseases  or infirmities) and only the former were deported to  Andamans while  the latter  were transferred to and confined  in one  or the  other jails within the country under sec.  32 of the Prisoners Act of 1900 and in course of time their  cases were  referred  to  State  Government  for passing an  order under  sec. 55 I.P.C. or sec. 402 Cr. P.C. 1898  which   was  within   the  discretion   of  the  State Government. Reference in 781

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this behalf may be made to sec. 32 of the Prisoners Act 1900 and Paragraph  719 of  Punjab Jail Manual. Section 32 of Act III of  1900, which  specifically deals  with ’Persons Under Sentence  of   Transportation  (now  applicable  to  persons sentenced to imprisonment for life) runs thus :-      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 authorised           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 for another offence.           (2) In  any case  in which the State Government is           competent  under  sub-s.  (1)  to  appoint  places           within the States and to order the 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  be like  agreement  give           orders or  duly authorise  some  officer  to  give           orders for the removal thereto of such person."      Under this  provision the  State  Government  has  been empowered to  appoint places within the State, and places in other  States   with  their  consent,  where  transportation prisoners could be lodged for undergoing their sentences. It is obvious  that the  expression ’confinement’  occurring in the marginal  note  of  the  section  means  the  prisoners’ detention in  the places  for the  purpose of  executing  or carrying out their sentence.      Counsel for  the petitioner  strenuously urged that the ’places’  envisaged   for  confinement   of   transportation prisoners under  sec. 32 of the Prisoners Act 1900 could not be the  places in the jails but must be some place or places outside the  jails. In  other words, the contention was that under the  power for confinement of transportation prisoners the State Government cannot appoint jails as the 782 ’places’ for  their confinement. We fail to appreciate as to why such  a qualification  or limitation on the power of the State Government  under sec.  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 Kundan Lal and others v. Emperor(1) and in Re. Khairati Ram (2) to support his contention but in our view  neither of  these decisions  lays down anything as suggested by  Counsel. In  both  the  cases  the  court  was concerned with  the question  as to where should an approver to whom  dardon has been tendered under sec. 337 of Cr. P.C. 1898 should  be kept during an inquiry or trial and all that the Lahore  High Court  has held is that he must be detained in judicial  custody in  prison which  includes  a  judicial lock-up and  not in  custody of  the police  and in both the cases a  direction issued by the local Government under sec. 514 (1)  of Cr.  P.C. 1898  for keeping  such  approvers  in Lahore Fort  under police  control was  declared illegal and ultra vires.  Neither of these decisions is an authority for the proposition  that in the exercise of the power conferred under sec.  32 of  Prisoners Act  1900 the  State Government

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cannot constitute  or appoint  jails within its territory as the "places"  for confinement  for transportation prisoners. Moreover, as  we shall  point out later Paragraph 719 of the Punjab  Jail   Manual  clearly   shows   that   by   several Notifications or  Orders issued  by  the  Punjab  Government certain  local   jails  within   the  Province   have   been constituted the  "places" under  sec.  32  of  the  Act  for confinement of  transportation prisoners.  It is  thus clear that under  sec. 32  of  Act  III  of  1900  a  sentence  of transportation either  for a term or for life could be and a sentence of  life imprisonment  can be  made  executable  in local jails  by constituting  such  jails  as  the  ’places’ within the  meaning of  sec. 32  under orders  of the  State Governments.      Apart from  sec. 32  of the  Prisoners Act, sec. 383 of Cr. P.C.  1898 and  sec. 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 783 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-sec. (1) of sec. 418 and sub- sec. (2)  of sec.  418 make  this 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 nonprescription  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.      Paragraph 719 of the Punjab Jail Manual as published in 1916 ran thus:-           719. "Places  of  confinement  for  transportation      prisoners-Every prisoner  sentenced  to  transportation      for a  term or  for life, if ineligible for deportation      to the  Andamans, shall  be transferred to and confined      in one  or other  of  the  following  jails  which  are      constituted places  for the detention of transportation      prisoners within  the Punjab,  under section  32 of Act      III of  1900, namely:-The  Lahore Borstal  Central Jail      and  the  Central  Jails  and  Lahore,  Montgomery  and      Multan; the  District Jails  at Ambala,  and Multan and      the Lahore Female Jail." In  the   margin  reference   has  been   given  to  several Notifications of  Punjab  Government  specifying  the  jails named in the Paragraph. It appears that Paragraph 719 itself

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was amended  some time  later (when  it was done Counsel was unable to state but presumably 784 before  ’transportation   for  life’   was  substituted   by ’imprisonment for  life’) and  the words  "if ineligible for deportation to  the Andamans"  were deleted  for the amended Para 719  as appearing  in Punjab  Jail Manual  published in 1975 runs thus :           719.  Places  of  Confinement  for  transportation      Prisoners-Every prisoner  sentenced  to  transportation      for a  term of  years or for life, shall be transferred      to and  confined in one or other of the following jails      which are  constituted  places  for  the  detention  of      transportation  prisoners   within  the  Punjab,  under      section 32  of Act  III of  1900,  namely:-The  Central      Jails at  Ambala and Ferozepur, the Borstal Institution      and Juvenile  Jail, Faridkot, women’s section, District      Jail, Ludhiana,  in the  case of  women  prisoners  and      District Jail, Delhi. Here also  in the  margin  reference  is  given  to  various Government Notifications  specifying the  Jails named in the Paragraph. It  will thus  appear clear  that since after the deletion of  the words  "if ineligible  for  deportation  to Andamans" in  the Paragraph  719 so  far as  the  Punjab  is concerned no  transportation prisoner  was deported overseas and all  transportation prisoners were detained and confined in local  jails which  were the  appointed places  envisaged under sec.  32 of  Act III of 1900. It is thus clear that in course of  time the  sentence of transportation either for a term or  for life  became executable  in  jails  within  the country and  the same  position must  obtain  in  regard  to persons sentenced to imprisonment for life on and after 1-1- 1956 in  view of sec. 53A I.P.C inserted by the Amending Act 26 of  1955. The  first premise  on which  the  petitioner’s claim to immediate release rests is thus not valid.      As regards  the nature  of punishment  required  to  be suffered under  the  sentence  of  ’imprisonment  for  life’ (substituted for  ’transportation’ by the Amending Act 26 of 1955) Counsel  for the petitioner urged that, its nature not having been  defined anywhere,  it  cannot  be  equated  to, rigorous imprisonment  for life’.  The argument was that the Amending Act  (26 of  1955) did not change the nature of the punishment required to be suffered under either and like the sentence of  ’transportation  for  life’.  the  sentence  of imprisonment for  life’ remains distinct from the punishment of  "rigorous  or  simple  imprisonment’  enlisted  at  item ’Fourthly’ in  s. 53,  IPC. Counsel pointed out that both in the Indian Penal 785 Code as  well as  the Criminal  Procedure Codes  (of 1898 as well as  of 1973)  a distinction has been maintained between ’imprisonment for life’ and ’imprisonment for a term’ and it is only  the  latter  which  can  be  either  ’rigorous’  or ’simple’ depending  upon the  Court’s direction given at the time of sentencing the accused under s. 60, IPC and there is nothing either  in the  Penal Code  or Procedure Codes which indicates that  ’imprisonment  for  life’  is  or  would  be necessarily rigorous.  It is  not possible  to  accept  this contention  for   the  reasons   which  we  shall  presently indicate.      In  the  first  place,  implicit  in  the  argument  so advanced by  counsel for the petitioner is the acceptance of the position  that the  earlier sentence  of ’transportation for life’  and the substituted sentence of ’imprisonment for life’ are  similar  as  regards  the  nature  of  punishment

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required to  be suffered  by the  convict under  either.  If therefore,  there   is  sufficient   statutory  material  or material having  the force  of law to show that the sentence of transportation  either for  life or  for a  term involved exaction of  hard labour  from the  convict while undergoing the sentence the contention must obviously fail. It is well- known  that  transportation  to  overseas  penal  settlement always implied  hard labour  for the  concerned convicts and hence deportation  beyond the  seas popularly  called ’Black water’ was  the most dreaded punishment in India not without reason. Section 59 of the Prisons Act 9 of 1894-an enactment made for amending the law relating to prisons with a view to prescribe uniform  system of  prison  management  in  India, initially conferred power on the Governer-General in Council and later  since 1937 confers power on the State Governments to make  rules, consistent  with the  Act, in  regard to the various matters;  inter alia  under cl.  (14) thereof  rules could be  made "for classifying and prescribing the forms of labour and  regulating the  periods of rest from labour" and it appears  that requisite  rules in  that behalf  have been made by  the authorities  on whom  the power had been or has been conferred.  Counsel for  the respondent has referred us to ’Andaman  and  Nicobar  Manual’  a  Government  of  India Publication of  the year  1908 which contains several rules, regulations and  orders governing the Management and Control of the  Penal Settlement  at Port Blair and Nicobar Islands. Section  1   (2)  of   the  Manual  states  that  the  Penal Settlements of  Port Blair  and Nicobar  Islands  have  been specially appointed  as the  ’places’ within  the meaning of s.33 of Prisoners Act 5 of 1871 which is equivalent to s. 32 of Prisoners  Act 3  of 1900  and  "term  as  well  as  life convicts are  permitted to be transported to them", while s. 1 (3) states that 786 "the barracks  and other  places used for the confinement of prisoners at  Port Blair have also been declared prisons for the confinement  of convicts  sentenced to penal servitude". Chapter II  deals with  classification of convicts and s. 17 is very important which runs thus:           17. "(1)  By  section  34,  Act  V  of  1871,  the      Governor General  in Council  may, from  time to  time,      prescribe rules as to the classification of transported      convicts.           (2) The  rules so  sanctioned by the Government of      India for  the classification of convicts are comprised      in the following orders......           (3)  Transportation   entails  hard  labour  under      strict discipline,  with only such food as is necessary      for  health.   Any  mitigation   of  the  above  is  an      indulgence which  may, at  any time,  be  withdrawn  in      whole or in parts".      Sub-cl.  (3)   of  s.   17  in   substance  gives   the interpretation of  the expression  ’transportation’  and  in terms states  that transportation  means hard  labour  under strict discipline,  subject to  such indulgence  as  may  be granted or  withdrawn from  time to time. Sections 24 and 25 provide for  classification and grades of prisoners on their arrival  in   the  penal   Settlement.  Section   146  which prescribes hours  of labour  says that the hours of work are regulated by  the Superintendent  and they  shall ordinarily consist of 9 hours daily, including the time of going to and returning  from   work  (as   far  as   practicable).  These provisions of  the Andaman  and Nicobar  Jail Manual clearly bring out  the fact  that  the  sentence  of  transportation either for  life or  for a  term  inexorably  mean  rigorous

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imprisonment in  the sense  of exaction  of hard labour from the convict.  This position  has been judicially noticed and accepted by  the Privy  Council in Pandit Kishori Lal’s case (supra) where  while elaborately dealing with the history of the sentence of transportation the Privy council has clearly observed that  both in  England and  in India transportation prisoners when  deported beyond  the seas  were subjected to conditions of  hard labour  under strict discipline. Relying on s.  58, I.P.C.  and other  statutory provisions the Privy Council also  concluded that even when it was made to suffer inside a local jail within the country transportations meant rigorous imprisonment.  Therefore on  counsel’s own argument the two being similar in nature the sentence of imprisonment for life must mean rigorous imprisonment for life. 787      Secondly by  the Amending  Act 26 of 1955 a new s. 53 A has been  added to the I.P.C. which in our view clinches the matter beyond any doubt, because sub-s. (2) read with sub-s. (1)  thereof   affords  a   clear  indication  by  necessary implication that  a sentence of ’imprisonment for life’ must be regarded  as equivalent  to  ’rigorous  imprisonment  for life’. It  is obvious  that s.  53A is  in the  nature of an ’Interpretation Clause’,  for in  terms it deals with how ’a sentence of transportation for life or for a term’ should be construed in  penal jurisprudence.  Sub-s. (1) provides that any reference  to ’transportation for life’ in any other law for the  time being  in force  or in any instrument or order having effect  by virtue of any such law or of any enactment repealed, shall be construed as a reference to ’imprisonment for life’. Sub-s. (2) runs thus:-           (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, the offender shall be dealt with      in  the   same  manner  as  if  sentenced  to  rigorous      imprisonment for the same term".      Under this  provision Parliament  has expressly  stated that a  sentence of  transportation for  a term  has  to  be executed or carried out as if it were a sentence of rigorous imprisonment for the same term. If transportation for a term has been equated to rigorous imprisonment for the same term, by necessary implication the sentence of ’transportation for life’, now  substituted by  ’imprisonment  life’,  which  is awardable for  more serious,  or more  grave or more heinous crimes must  mean rigorous imprisonment for life, that is to say it  cannot be  anything but  rigorous. Counsel  for  the petitioner, however,  pointed out that sub-s. (2) only deals with a  sentence of  transportation for  a term and not with transportation  or   imprisonment  for  life  and  that  the provision is  applicable to only sentences of transportation for a  term awarded  prior to  1.1.1956. This is undoubtedly true but  that would  not affect  the question  whether  the provision gives  the requisite  guidance on  the  nature  of punishment  intended   to  be   inflicted  on  the  convicts sentenced to  imprisonment for  life and  such  guidance  is clear by  necessary implication. In our view the legislative intent has  been clearly  spelt out  and expressed  that the nature  of  punishment  required  to  be  suffered  under  a sentence of  ’imprisonment for  life’ awardable on and after 1.1.1956 is rigorous imprisonment. 788      That this is how s. 53 A (2) of I.P.C. was construed by this Court  is clear from the decision in Gopal Godse’s case (supra). Facts of that case shortly stated were these: Gopal Godse was sentenced to transportation for life by a Judge of

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the Special  Court, Red  Fort, Delhi on 10th February, 1949. After undergoing  20 years  rigorous  imprisonment  together with the  remissions, he  challenged  the  legality  of  his continued  detention,   claiming  that  he  had  served  his sentence and  was therefore, entitled to be released. One of the questions  posed by the Court for its determination was: "Whether the  petitioner (Gopal  Godse) who was sentenced to transportation for  life (and  whose sentence  had not  been commuted under  s. 55 of the I.P.C. or under s. 402 (1), Cr. P.C. could be dealt legally as if he were a person sentenced to rigorous imprisonment"? After approving the Privy Council in decision  Pandit Kishori  Lal’s case  (supra)  which  was based on  s. 58, I.P.C. and other statutory provisions, this Court answered the question in the affirmative solely basing its conclusion  on the provisions contained in s. 53 A (2)-a provision added  by the  Amending Act 26 of 1955 with effect from 1.1.1956.  After setting  out the  provisions the court observed thus:           "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 non 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."’      It may  significantly be pointed out that Gopal Godse’s sentence of  transportation for life had been passed on 10th February, 1949,  i.e. prior  to the coming into force of the Amending Act  26 of  1955 and  the question  had come up for consideration before  this Court  in January 1961 long after the Amending Act had come into force whereunder the sentence of  imprisonment   for  life   had  been   substituted   for transportation, with  the result  that this Court had to and did rely  on s.  53A (2) for its conclusion. In other words, this  Court   in  that   case  equated   the   sentence   of transportation for  life, (which  continued as  imprisonment for life on and after 1.1.1956) to rigorous imprisonment for life.      It may  be pointed out that even thereafter there is no dearth of judicial precedents where, in the matter of nature of punishment, 789 imprisonment for  life has  been regarded  as equivalent  to rigorous imprisonment  for life.  In State of Madhya Pradesh v. Ahmadulla(1)  this Court, after reversing the judgment of acquittal recorded  by the High Court on a charge of murder, imposed the following sentence:           "But taking into account the fact that the accused      has been acquitted by the Sessions Judge-an order which      was affirmed  by the  High Court-we  consider that  the      ends of justice would be met if we sentence the accused      to rigorous imprisonment for life".      Again in  the celebrated case of K.M. Nanavati v. State of Maharastra(2)  (second Nanavati  case)  the  Bombay  High Court had  sentenced  the  accused  expressly  to  "rigorous imprisonment for  life" and  this Court while dismissing the appeal upheld the sentence as being correctly awarded.      During the  hearing our  attention  was  invited  to  a decision of the Kerala High Court in Mathammal Saraswathi v. The State,(3)  where that High Court has taken the view that while passing  the  sentence  of  imprisonment  for  life  a Criminal. Court  should keep in view the provisions of s. 60

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of I.P.C.  and choose one or the other form so as to clarify the exact  nature of  punishment intended to be inflicted on the accused,  and went on to clarify the position by stating that the  imprisonment for life in that case shall be simple imprisonment and not rigorous. It is not possible to sustain the aforesaid  view of  the Kerala  High Court. 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 s.  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 worns s. 60 would be inapplicable. 790      However, for the reasons discussed above and in view of the authoritative  pronouncements made  by the Privy Council and this  Court in  Pandit  Kishori  Lal’s  case  and  Gopal Godse’s case  respectively, it will have to be held that the position in law as regards the 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. In this view of the matter, the recommendation  of the  Law Commission  contained in its 39th and 42nd Reports suggesting a suitable amendment in the Indian Penal  Code will  have to  be regarded as having been made only  for a purpose of removal of doubts and clarifying or declaring  the existing  legal position.  Presumably  for that reason the suggested amendment has not been regarded as absolutely necessary and therefore not put through so far.      Having regard  to the aforesaid discussion, none of the ground on  which the petitioner’s claim to immediate release rest can  be held  to be valid and therefore, in the absence of any  order of commutation having been passed either under s. 55,  I.P.C. or  s.  433  (b)  of  Cr.  P.  C.  1973,  the petitioner is not entitled to be released. Rule is therefore discharged. H.L.C.                                   Petition dismissed. 791