http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: RATAN SINGH & ORS.

DATE OF JUDGMENT05/05/1976

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA GUPTA, A.C.

CITATION:  1976 AIR 1552            1976 SCR  552  1976 SCC  (3) 470  CITATOR INFO :  F          1976 SC1855  (1,2)  RF         1980 SC2147  (30)  F          1982 SC1052  (14)  R          1982 SC1439  (6)

ACT:      Code of  Criminal Procedure-Ss.  401 and  402-Convicted for imprisonment  for life by one State-Prisoner transferred to his native State-Appropriate Government which could remit sentence.

HEADNOTE:      The  respondent   was  convicted   and   sentenced   to imprisonment for  life by  a court  in the  State of  Madhya Pradesh. At  his request he was transferred to a jail in the State of  Punjab, to  which State he belonged. He applied to the Government  of Punjab  that under the Punjab Jail Manual he is  entitled to  be released  since he had completed more than 20  years of  imprisonment. The application was sent to the Government  of Madhya  Pradesh, which  rejected it. In a writ petition  filed by  him the  High Court  of Punjab  and Haryana held  that the  State of  Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter.      In appeal  to this  Court, the  State of Madhya Pradesh contended: (i)  that since  the sentence was of imprisonment for life,  it would  not expire  automatically at the expiry of’ 20  years including  remissions: and  (ii) that  as  the prisoner was  convicted by  a court  in the  State of Madhya Pradesh the  appropriate Government  the exercise discretion under ss.  401 and  402 Cr.P.C.  was  the  State  of  Madhya Pradesh and not the State of Punjab.,      Allowing the appeal, ^      HELD: The  High Court  was in error in holding that the respondent was  entitled to  be  released  as  of  right  on completing the term of 20 years including remissions. [556]      Gopal Vinayak Godse v. State of Maharashtra and Others, [1961] 3  S.C.R. 440 and Pandit Kishori Lal v. King Emperor, L.R. 72 I.A.1, followed.      (1) A  sentence  of  imprisonment  for  life  does  not automatically expire  at  the  end  of  20  years  including

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

remissions because the administrative rules framed under the various  Jail  Manuals  or  under  the  Prisons  Act  cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire  life   of  the   prisoner  unless   the  appropriate Government chooses  to  exercise  its  discretion  to  remit either the  whole or  a part of the sentence under s. 401 of the Code of Criminal Procedure. [559G]      (2) The  appropriate Government  has the  discretion to remit or  refuse to  remit the sentence and where it refuses to remit  the sentence  no writ  can be issued directing the State Government to release the prisoner. [560A]      (a) The  appropriate Government  which is  empowered to grant remission  under  s.  401  of  the  Code  of  Criminal Procedure is  the Government of the State where the prisoner had been  convicted and  sentenced, that  is, the transferor State and  not the  transferee State  where the prisoner may have been  transferred at his instance under the Transfer of Prisoners Act. [56B]      (b) Where  the transferee  State feels that the accused had complected a period of 20 years it has merely to forward the request  of the  prisoner to the Government of the State where the  prisoner was  convicted and sentenced and if this request was  rejected by  the State  Government the order of the Government  cannot be interfered with by a High Court in its writ jurisdiction. [550D] 553      [Since the  respondent was released in pursuance of the order of  the High  Court, the  release order was allowed to stand.]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 246 of 1971.      Appeal by  Special Leave  from the  Judgment and  order dated the 13th May 1971 of the Punjab and Haryana High Court in Criminal original No. 61-M of 1971.      Ram Panjwani,  Deputy Advocate  General, M.P.,  I-l. S. Parihar, and l. N. Shroff, for the Appellants.      O. P.  Sharma, M.  S. Dhillon  and  S.  K.  Mehta,  for Respondents Nos. 2 to 4.      Nemo for Respondent No. 1.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal by special leave is directed against the  judgment of  the Punjab  .& Haryana  High Court dated May 13, 197-1 by which the High Court allowed the writ petition filed  by the respondent Ratan Singh a prisoner who was confined in Central Jail, Amritsar. The appeal arises in the following circumstances.      The  respondent   Ratan  Singh  was  convicted  by  the Sessions Judge  Bhind in  the State of Madhya Pradesh by his order dated  October  16,  1957  under  s.  302  I.P.C.  and sentenced to  imprisonment for  life. An appeal filed by the respondent against  the order  of  the  Sessions  Judge  was dismissed by  the High Court on May 19, 1959. Thereafter the accused made a prayer to the Government for transferring his from Gwalior  Jail to  Amritsar  as  the  accused/respondent belonged to  Punjab State. The representation of the accused was accepted  and accordingly  he  was  transferred  to  the Punjab Jail  where he  was lodged at Central Jail, Amritsar. The order  of transfer  was passed  on October 15, 1959. The respondent contended  that as he had completed the period of 20 years’  imprisonment  including  the  remissions  granted

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

under the  Punjab Jail Manual he was entitled to be released forthwith and  he accordingly  made an  application for  his release to  the Punjab  Government.  In  fact  the  admitted position is  that on  May 7,  1971 the accused had undergone imprisonment for  a period  of 25 years 18 days and 19 hours taking into  account the  various remissions  granted to him from time  to time.  The Government  of Punjab forwarded the representation of the respondent to the Government or Madhya Pradesh for  passing an  order of release. On April 18, 1911 the State  of Madhya  Pradesh rejected  the request  of  the respondent    for     his    release.     Thereafter     the accused/respondent filed  a writ  petition in the High Court of Punjab  & Haryana  on the  ground that the accused having served the  sentence for  more than 20 years was entitled to be released  as a  matter of  course under the provisions of the Punjab  Jail Manual  and  the  Rules  framed  under  the Prisons Act. It was also contended by the respondent that as he was lodged 554      in  a   jail  under  the  jurisdiction  of  the  Punjab Government? the  appropriate Government to order his release was the  Punjab Government  and not the Government of Madhya Pradesh and,  therefore, the  request  made  by  the  Punjab Government  to   the  Madhya   Pradesh  Government  was  not warranted by  law. The  High Court without issuing notice to the State  of Madhya Pradesh and after hearing the Advocate- General accepted  the plea  taken by the respondent and held that Punjab  State was  the appropriate authority to release the respondent. The High Court relied upon a decision of the Madhya Pradesh  High Court  in Sitaram  Barelal v.  State of Madhya Pradesh  and directed  that  as  the  respondent  had already served  more than  20 years  he was  entitled to  be released forthwith.  Accordingly the  High Court allowed the petition and  directed the  State Government to consider the case of the respondent for being released and dispose of the case within  20 days  from the date of the order of the High Court. It appears that in pursuance of the order of the High Court the respondent was released.      The State  of Madhya  Pradesh has  filed this appeal by speciaI leave  against the  order of  the Punjab and Haryana High Court  on the  ground that  in law  it was  the  Madhya Pradesh Government  alone which  had the  power to remit the sentence and  release the  prisoner at the High Court was in error in  holding that  the Punjab Government could pass the order of release. Appearing in support of the appeal Mr. Ram Panjwani learned  counsel submitted, I two points before us. In the  first place  it  was  argued  that  the  High  Court completely overlooked  the legal position that a sentence of imprisonment for  life could  not be  said to  be a sentence which would  expire automatically  after the  expiry  of  20 years including remissions The sentence would enure till the life time  of the  prisoner but the State Government had the discretion under  ss. 401  and 402  of the  Code of Criminal Procedure to  remit the  remaining part  of the sentence and order release  of the  prisoner. Secondly,  it was submitted that as the prisoner was convicted by a Court situate in the State of  Madhya Pradesh  the appropriate Government was the Madhya pradesh  Government and  not  the  Punjab  Government where  the   prisoner  was   transferred  to   exercise  its discretion under  s. 401  of the Code of Criminal Procedure. No one  appeared for  the respondent,  but at  the  time  of granting special  leave. this  Court had  ordered  that  the release of  the prisoner  would not  be reopened even if the appeal succeeded. [n other words the State of Madhya Pradesh in this  case is  not concerned  with the individual case of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

the respondent  but only  wants an authoritative decision on the important principle involved in the case.      As regards  the first  point, namely, that the prisoner could be  released automatically  on the  expiry of 20 years under the  punjab Jail  Manual or the Rules framed under the Prisons Act,  the matter is no longer res integra and stands concluded by a decision of this      (1) AIR ] 969 M.P. 252. 555 Court in  Gopal Vinaykak  Godse v.  State of Maharashtra and others(1), where  the Court,  following a  decision  of  the Privy Council  in Pandit  Kishori  Lal  v.  Kingg-Emperor(2) observed as follows:           "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.      Bl,           If so,  the next  question is whether there is any      provision  of   law  whereunder  a  sentence  for  life      imprisonment,   without   any   formal   remission   by      appropriate. Government,  can be  automatically treated      as one  for a  definite period.  No such  provision  is      found in  the  Indian  Penal  Code,  Code  of  Criminal      Procedure or the Prisons Act.           *    *    *    *           A  sentence   of  transportation   for   life   or      imprisonment for  life must  prima facie  be treated as      transportation or  imprisonment for  the whole  of  the      remaining period  of  the  convicted  person’s  natural      life."      The Court further observed thus:           "But the  Prisons  Act  does  not  confer  on  any      authority a  power to  commute or  remit sentences;  it      provides only for the regulation of prisons and for the      treatment of  prisoners confined therein. Section 59 of      the Prisons Act confers a power on the State Government      to make rules. inter alia for rewards for good conduct.      Therefore, the  rules made  under  the  Act  should  be      construed within the scope of the ambit of the Act. * *      * Under  the said  rules the  orders of all appropriate      Government under s. 401, Criminal Procedure Code, are a      pre-requisite for  a release.  No other  rule has  been      brought to  our notice  which confers  an  indefeasible      right on  a prisoner  sentenced to  transportation  for      life to  an unconditional  release on  the expiry  of a      particular term  including remissions.  The rules under      the Prisons Act do not substitute a lesser sentence for      a sentence of transportation for life."           "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  G. certain  remissions under s. 401 of      the Code  of Criminal  Procedure, it  did not remit the      entire  sentence.   We,  there   fore,  hold  that  the      petitioner has not yet acquired ally right to release."      It is,  therefore, manifest  from the  decision of this Court that  the Rules  framed under the Prisons Act or under the Jail  Manual do  not affect  the total  period which the prisoner has to suffer but merely amount  (l) [1961] 3 S.C.R. 410.  (2) L.R. 72 IA 1. 556 to  administrative   instructions  regarding   the   various remissions to  be given to the prisoner from time to time in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

accordance with  the rules.  This Court  further pointed out that the  question of  remission of the entire sentence or a part  of   it  lies  within  the  exclusive  domain  of  the appropriate Government  under s. 401 of the Code of Criminal Procedure and neither s. 57 of the Indian Penal Code nor any Rules or  local Acts can stultify the effect of the sentence of life  imprisonment given  by the  Court under  the Indian Penal Code. In other words, this Court has clearly held that a sentence  for life  would enure till ‘the life-time of the accused as  it is not possible to fix a particular period of the prisoner’s death so any remissions given the Rules could not  be   regarded  as   a  substitute  for  a  sentence  of transportation for  life. In these circumstances, therefore, it is  clear that  the High  Court was  in error in thinking that the  respondent was entitled to be released as of right on completing the term of 20 years including the remissions. For these reasons, therefore, the first contention raised by the learned  counsel for  the appellant  is well founded and must prevail.      The next  plank of  the argument put forward by Mr. Ram Punjwani was  that under  s. 401  of the  Code  of  Criminal Procedure i,  was the  State of  Madhya  Pradesh  where  the accused was  convicted which  alone had  the power  to grant remission  and   order  release  of  the  prisoner.  It  was submitted that the transfer of the accused from the State of Madhya Pradesh to the State of Punjab was made merely at the instance of  the prisoner  and for his convenience and could not clothe  the transferee  State with  the power to pass an order under  s. 401  of the  Code of  Criminal Procedure. In order to  understand the  implications of  the argument  put forward by  the appellant  it May  be necessary  extract the relevant provisions  of s.  401  of  the  Code  of  Criminal Procedure which run thus:           "401. (  1 ) When any person has been sentenced to      punishment for  an offence,  the appropriate Government      may  at  any  time,  without  conditions  or  upon  any      conditions  which   of  the  person  sentenced  accepts      suspend the  execution of  his sentence  or  remit  the      whole or  any part  of the  punishment to  which he has      been sentenced.           (2)  Whenever   an  application  is  made  to  the      appropriate Government  for the suspension or remission      of a  sentence, the appropriate Government, may require      the presiding Judge of the Court before or by which the      conviction was had or confirmed to state his opinion as      to  whether   the  application  should  be  granted  or      refused, together with his reasons for such opinion and      also to  forward with  the statement  of such opinion a      certified copy  of the  record of  the trial or of such      record thereof as exists."      A perusal  of s.  401 of the Code of Criminal Procedure would reveal  that the  section consists  of  two  parts-the first part confers an absolute discretion on the appropriate Government to  remit the whole or any part of the punishment to which the accused may have been sentenced. 557 The words  used ill  sub-s. (1) as also sub-s. (2) of s. 401 clearly show that the power is exercised by the "appropriate Government". The expression "appropriate Government" appears to have  been substituted  for  the  expression  "Provincial Government‘’ by Amendment Act 1950 Previously the words used were "Provincial  Government". Sub-section  (2) of s. 401 of the Code of Criminal Procedure, however, enjoins that before exercising its  discretion on  an application  made  to  the appropriate Government  for remission  of the  sentence, the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

appropriate Government  may require  the presiding  Judge of the Court  which convicted the prisoner to state his opinion whether the  application should  be granted or refused. Thus the procedure  laid down  in sub-s.  (2) of  s. 401  gives a clear indication  as to  the real meaning and purport of the words "appropriate Government". It is obvious that only that Government can  call for  the opinion of the presiding Judge of the Court which has control over the said presiding Judge or the  Court which  is situated  within the jurisdiction of the  said   Government.  As   a  logical  corollary  of  the interpretation of sub-s. (2) of s. 401 it is the State where the accused was convicted which alone has the power to grant remissions of  the sentence.  an the instant ease the Punjab Government had  absolutely no control or jurisdiction of the Sessions Judge,  Bhind in  the State  of Madhya  Pradesh and could not  have called  for an  opinion from  that Court. In these circumstances there can be no shadow of doubt that the appropriate Government  mentioned in  sub-s. (1)  and sub-s. (2) of  s. 401  of the  Code of Criminal Procedure refers to the Government of the State where the accused was convicted, that is  to say,  the  transferor  Government  and  not  the transferee Government. Any such transfer of the accused from a jail  situate in  one State  to a  jail in other State has absolutely no  bearing on the question as to the application of s. 401 of the Code of Criminal Procedure, because this is merely an  executive matter  and an executive decision taken to meet the convenience of the accused.      Furthermore, the  position is  made absolutely clear by sub-s. (3) to s. 402 of the Code of Criminal Procedure which runs thus:           "In  this   section  and   in  section   401,  the      expression "appropriate Government" shall mean-           (a)  in cases where the sentence is for an offence                against, or  the order  referred to  in  sub-                section (4A)  of section 401 is passed under,                any law  relating to  a matter  to which  the                executive power  of the  Union  extends,  the                Central Government: and G           (b)  in other cases, the State Government." A perusal of this provision clearly reveals that the test to determine the  appropriate Government is to locate the State where the  accused  was  convicted  and  sentenced  and  the Government of that State would be the appropriate Government within the  meaning of  s.  401  of  the  Code  of  criminal Procedure. Thus  since the  prisoner in the instant case was tried, convicted  and  sentenced  in  the  State  of  Madhya Pradesh the State of Madhya Pradesh would be the appropriate Government 558 to exercise  the discretion  for remission  of the  sentence under s.  401(1) of the Code of Criminal Procedure. Although the present  case is  governed by  the old  Code, yet we may mention that  the new  Code of  Criminal Procedure, 1973 has put the  matter completely  beyond and.  controversy and has reiterated the  provisions of  s. 402(3) in sub-s. (7) of s. 432 which provides thus:           "(7) In  this section  and  in  section  433,  The      expression "appropriate Government" means,-           (a)  in cases where the sentence is for an offence                against, or  the order  referred to  in  sub-                section (6) is passed under, any law relating                to a  matter to  which the executive power of                the Union extends, the Central Government;           (b)  in other  cases, the  Government of the State                within which the offender is sentenced or the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

              said order is passed. "Actually this  clause  has  been  bodily  lifted  from  the provisions of s. 402(3) and has made the position absolutely clear.      In Surjit Singh v. State of Punjab & ors.(l) a Division Bench of  the Punjab & Haryana High Court has also taken the view that the appropriate Government would be the Government of the  State where  the prisoner  has  been  convicted  and sentenced.  The   Division  Bench  of  the  Court  after  an exhaustive discussion  of the various provisions of the Code of Criminal Procedure and the Rules observed as follows:           "There is,  however, nothing  to indicate that for      the purposes  of remission  and suspension of sentences      under  section   401,  Criminal   Procedure  Code,  the      Legislature intended to adopt a different definition of      ’appropriate government’.  In short, under section 401,      Criminal ’Procedure  Code, the  Government of the State      of  conviction   and  not  the  Punjab  Government  was      competent to remit the balance of the sentence of these      life convicts.  All that the Punjab Government could do      was to  forward the cases of these life-convicts to the      appropriate Government for remitting the remaining term      of their  life imprisonment,  in exercise  of the power      under section  401, Criminal Procedure Code. The Punjab      Government has  already made such a reference in favour      of the  petitioners to the Governments of the States of      conviction.  Neither  the  Punjab  Government  nor  the      Superintendent  of   Jail  concerned  can  release  the      prisoner under  any of the statutory rules contained in      Punjab Jail  Manual  without  receiving  the  necessary      orders of the appropriate Government under section 401.      Pending  the  receipt  of  orders  of  the  appropriate      Government, therefore, the detention of the petitioners      could not by any reasoning, be called illegal."  (1) Criminal Writ No. 11 of 1971 decided on 26-5-72. 559 We find  ourselves in complete agreement with the view taken by the Punjab & Haryana High Court.      Before closing  the judgment,  we may  refer to Sitaram Barelal’s s case (supra) which forms the sheet-anchor of the decision of  the High  Court in  the instant  case. To begin with that  case does  not  deal  with  the  identical  point involved in  the present  case. III  that  case,  the  State Government had  exercised a statutory power under. I Special Act passed  by the  State of  Madhya  Pradesh,  namely,  the Madhya Pradesh  Prisoners Release  on Probation  Act  16  of 1954. Under  the provisions of that Act the State Government was given  the power to release prisoners found to have been of good  conduct by  imposing certain  conditions for  their rule it  was not  here the  Government  was  exercising  its discretion under  s. 401  of the  Code of Criminal Procedure for remission  of the part of the sentence after the accused had served  the sentence  for 20  years and  claimed  to  be released. Secondly  the power for a temporary release of the Prisoner was  conferred by  the said  Act on  the  State  of Madhya Pradesh under certain conditions. The Government was, therefore,  exercising   as  statutory   power.   In   these circumstances the  facts in  Sitaram Barelal’s  case (supra) were quite  different from the facts of the present case. It is true  that the prisoner in that case was lodged in a jail in the State of Maharashtra but in view of the provisions of the Special  at a  particular  State  Government  alone  was empowered to exercise its discretion under the provisions of s. 2  of the  said Act. In the instant case there is no such Act at  all in  the State  of Punjab  &  Haryana which could

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

have provided  any justification  for  take  said  State  to exercise its  power to  release the  prisoner.  Thirdly?  as already state  the power  conferred by  the Act was merely a power to  release the  prisoner on a temporary basis subject to certain  conditions which is not the case here at all. In these circumstances  the High Court was not at and justified in relying  on the decision of the Madhya Pradesh High Court in Sitaram  Barelal’s case (supra) for tile proposition that the Punjab Government would be the appropriate Government to exercise power  under s.  401 (1)  of the  Code of  Criminal Procedure      From a  review of  the authorities  and  the  statutory provisions of  the Code  of Criminal Procedure the following propositions emerge:           (1)  that a sentence of imprisonment for life does                not automatically  expire at  the end  of  20                years including  the remissions,  because the                administrative rules framed under the various                Jail Manuals  or under the Prisons Act cannot                supersede the  statutory  provisions  of  the                Indian Penal Code. A sentence of imprisonment                for life means a sentence for the entire life                of  the   prisoner  unless   the  appropriate                Government chooses to exercise its discretion                to remit  either the  whole or  a part of the                sentence under s. 401 of the Code of Criminal                Procedure;           (2)  that  the   appropriate  Government  has  the                undoubted discretion  to remit  or refuse  to                remit the sentence 560                and where it refuses to remit the sentence no                writ  can   be  issued  directing  the  State                Government to release the prisoner;           (3)  that  the  appropriate  Government  which  is                empowered to  grant remission under s. 401 of                the  Code   of  Criminal   Procedure  is  the                Government of  the State  where the  prisoner                has been  convicted and sentenced, that is to                say,  the   transferor  State   and  not  the                transferee State  where the prisoner may have                been transferred  at his  instance under  the                Transfer of Prisoners Act; and           (4)  that where  the transferee  State feels  that                the accused  has completed  a  period  of  20                years it has merely to forward the request of                the   prisoner   to   the   concerned   State                Government, that is to say, the Government of                the State  where the  prisoner was  connected                and sentenced  and even  if this  request  is                rejected by the State Government the order of                the Government cannot be interfered with by a                High Court in its writ jurisdiction.      For these reasons, therefore, we are satisfied that the view taken  by the  High Court  of Punjab  & Haryana  in the instant case is erroneous and cannot be supported in law. We accordingly allow  the appeal,  set aside  the order  of the High Court. But as the respondent has already been released, the order of release of the respondent shall stand.                      PBRAppeal allowed. 561