PETITIONER:
KARTAR SINGH AND OTHERS
Vs.
RESPONDENT:
STATE OF HARYANA THROUGH INSPECTOR .GENERAL OF PRISON, CHAND
DATE OF JUDGMENT26/08/1982
BENCH:
TULZAPURKAR, V.D.
BENCH:
TULZAPURKAR, V.D.
ISLAM, BAHARUL (J)
MISRA, R.B. (J)
CITATION:
1982 AIR 1439 1983 SCR (1) 445
1982 SCC (3) 1 1982 SCALE (1)671
CITATOR INFO :
R 1983 SC 855 (2)
R 1984 SC 739 (5)
O 1985 SC1050 (2,12,13,TO,16)
RF 1990 SC1336 (7)
ACT:
Criminal Proccdure Code-s. 428-Applicability to persons
sentenced to imprisonment for life- construction of.
HEADNOTE:
Under s. 428, Cr. P.C., an accused person sentenced to
imprisonment for a term is entitled to set off his under-
trial period of detention against the sentence imposed upon
him.
The petitioners were life-convicts undergoing sentence
in different Jails in Haryana. Under para 516-B of the
Punjab Haryana Jail Manual they were entitled to be
considered for premature release on their completing 8-112
years of substantive imprisoment and 14 years of
imprisonment including remissions. According to the
petitioners, if the period of their under-trial detention
was added f - to their total period of imprisonment
including remissions, the total detention would exceed 14
years and their continued detention would be illegal. In
Maru Ram v. Union of India and Anr., [1981] 1 S.C.R. 1196 it
had been held that the mandatory minimum of 14 years' actual
imprisonment specified in s. 433-A, Cr.P.C., would not
operate against those 'lifers' whose conviction by the court
of first instance had been entered prior to 18th December,
1978, and that they would not be entitled to consideration
by Government for premature release on the strength of the
remissions earned under the relevant rules. The Government
of Haryana had by its order dated 2nd February, 1981,
decided that the benefit of the period of under-trial
detention should not be given to life-convicts who had been
convicted before 18th December, 1978. The petitioners
submitted that the said order was invalid for the reason
that it wrongfully denied to them the benefit of the set off
contemplated under s. 428, Cr. P.C.
Counsel for the petitioners contended that cases of
life-convicts would fall within the terms of s. 428 as:
(i) persons sentenced to imprisonment for life could
be said to have been sentenced to their life-term
which under the provisions of the Penal Code and
Jail Manual was regarded as equivalent to 20 years
or 14 year
446
(ii) when remissions are actually granted to life-
convicts their sentences become imprisonments for
a term:
(iii)when convicts other than life convicts were
entitled to the benefit of the set off
contemplated under the section there was no reason
why life-convicts should be denied that advantage.
..
Dismissing the petition,
^
HELD: on a plain reading of s. 428, Cr. P.C., it is
clear that the cases of the petitioners, who have been
sentenced to imprisonment for life, would not fall within
the section, for, the section applies to an accused person
who has on conviction been sentenced to imprisonment for a
term. [45O H; 451 A]
(b) A perusal of several sections of the Indian Penal
Code as well as Criminal Procedure Code would show that both
the Codes make and maintain a clear distinction between
"imprisonment for life" and "imprisonment for a term"; in
fact, the two expressions "imprisonment for life" and
"imprisonment for a term" have been used in
contradistinction with each other in one and the same
section, where the former must mean imprisonment for the
remainder of the natural life of the convict and latter must
mean imprisonment for a definite or fixed period. Having
regard to such distinction which is being maintained in both
the Codes, it will be difficult to slur over the distinction
on the basis that life-convicts should be regarded as having
been sentenced to a life term or to say that the two could
be understood as interchangeable expressions because,
basically, the life-term of any accused is uncertain.
Section 57, I.P.C. or the Remission Rules contained in Jail
Manuals are irrelevant in this context. It is well settled
that a sentence for imprisonment for life must be treated as
imprisonment for the whole of the remaining period of the
convicted person's natural life. [451 F-H; 452 D-E; 452 G;
453 A]
Kishori Lal v. Emperor, A.l.R. [1945] P.C. 64; Gopal
Vinayak Godse v. The State of Maharashtra [1961] 3 S.C.R.
440; Maru Ram v. The Union of India and Anr. [1981] I S.C.R.
1196; and StatE of Madhya Pradesh v. Ratan Singh & Ors.,
[1976] Supp. S.C.R. 552, referred to.
(c) An order of remission passed by the State
Government or by the Jail Authorities does not interfere
with either the conviction or sentence recorded by tho court
which remains intact; it merely affects the execution of the
sentence passed by the court and frees the convicted person
from his liability to undergo the full term of imprisonment
and it is for this reason that an accused person has f every
right to press his appeal against the conviction and
sentence imposed upon him, full remission - notwithstanding.
Moreover, S. 428, opens with the words "where an accused
person has, on conviction, been sentenced to imprisonment
for a term" and as such the section will come into play in
cases where "imprisonment for a term" is awarded on
conviction by a court and not where the convict's sentence
becomes a sentence for a term on remission being granted by
the t Executive. [453 C-F]
447
Puttawwa v. The State of Mysore, A.I.R. 1959 Mysore
116, approved. A
(d) The question is not whether the beneficent
provision should be extended to life-convicts on a priori
reasoning or equitable consideration but whether on true
construction the section comprises life-convicts within its
purview and on construction it is not possible to hold that
it does. The objects and reasons for introducing s. 428 anew
in the Code, as set out by the Joint Committee in its
Report, clearly show that cases of life-convicts were never
intended to be covered by the provision. [453-G; 454-A-B]
Kalidas Vanmalibhai v. State of Gujarat & Anr., [1980]
21 Guj. Law Reporter, 7, overruled.
Kanthalot Karunan & others v. State of Kerola,(1975) K
L.T. 147: Rajahusein Gulamhusein Lakhani v. The State of
Maharashtra (1976) Crl. L.J. 1294; Rafiq Abdul Rehman v.
'The State of Maharashtra, (1978) Crl. L.J. 214 and Bhimsen
v. The State of Rajasthan 1977 Crl. L.J. 696, approved.
JUDGMENT:
ORlGlNAL JURISDlCcTlON: Writ Petition (Crl.) No. 3226
of 1981. – D
(Under Article 32 of the Constitution of India)
R.C. Kohli for the Petitioners.
K .G. Bhagat and R.N. Poddar for the Respondent.
The Judgment of the Court was delivered by
TULZAPURKAR, J. This writ petition raises the question
whether persons sentenced to imprisonment for life are
entitled to set off their under-trial period of detention
against their sentence under sec. 428 of the Criminal
Procedure Code ?
The facts giving rise to the aforesaid question may be
stated.
The three petitioners (Kartar Singh, Mukhtiar Singh and
Baljit Singh) on conviction under sec. 30?, Indian Penal
Code were sentenced to imprisonment for life, the first two
on 20th February, 1973 and the last on 17th September, 1975
and each one of then is at present undergoing his sentence
in one or the other jails at Hissar in the State of Haryana.
The petitioners have pointed out that in Maru Ram v. Union
of India & Anr.(l) this Court while upholding the
constitutional validity of sec. 433-A of Criminal Procedure
Code
448
has held the section to be prospective in effect, that is to
say, the mandatory minimum of 14 years’ actual imprisonment
specified therein will not operate against those whose cases
were decided by the trial court before 18th December, 1978
when the section came into force and that all ‘lifers’ whose
conviction by the court of the first instance was entered
prior to that date would be entitled to consideration by
Government for pre-mature release on the strength of the
remissions earned under the relevant rules and according to
them under Para 516-B of the Punjab Haryana Jail Manual life
convicts below the age of 20 at the date of their conviction
are entitled to be considered for pre-mature release on
their completing 6 years of substantive imprisonment and 10
years of imprisonment including remissions while life
convicts above the age of 20 at the date of their
convictions are entitled to be considered for premature
release on their completing 8 1/2 years of substantive
imprisonment and 14 years of imprisonment including
remissions. The petitioners say that their case falls in the
second category and according to them they are entitled to
be considered for premature release if to their total period
of imprisonment inclusive of remissions is added the period
of their under-trial detention (which in the case of the
first two petitioners is 612 days and in the case of the
third petitioner is 2 years I month and 14 days) as on such
reckoning the total detention exceeds 14 years and their
continued detention is illegal; but the Respondent State has
issued an order No. 1953/591GI/G 3/r-19 (11) dated 2nd
February, 1981 to all Jail Superintendents in the State
whereunder instructions have been issued- that for the
purpose of considering cases of pre-mature release while
calculating 8-1/2 years substantive sentence and 14 years
imprisonment including remissions the benefit of under-trial
period is not to be given to life convicts who have been
convicted before 18th December, 1978. The petitioners have
challenged the legality and/or validity of the said order as
being contrary to law and violative of Arts. 14 and 21 of
the Constitution. In substance the petitioners have
contended that the said order illegally and wrongfully
denies to life convicts the benefit of a set-off
contemplated under sec. 421 Cr. P.C. and therefore the
petitioners have sought a mandamus directing the Respondent
State to consider their cases for release under Para 516-B
of the Punjab/Haryana Jail Manual after giving them the
benefit of said set-off against their sentences.
In the counter-affidavit filed on behalf of the
Respondent State the legal position obtaining as . a result
of this Court’s decision
449
in Maru Ram’s case (supra) has been accepted; similarly the
effect of Para 516-B of the Punjab/Haryana Jail Manual as
set out by the petitioners is also accepted. It is however,
denied that the order No. 1953/59/G1/G.3/T-19(11) dated 2nd
February, 1981 is illegal or invalid for any reason or is
contrary to sec. 428, Cr. P.C. It has been contended that
the benefit of a set-off contemplated by sec. 428 Cr. P.C.
is not available to life convicts but is available to those
convicts who have been sentenced to imprisonment for a term
and therefore far from being contrary to any law the
impugned order is in accord with the provisions of sec. 428
Cr. P.C. and since the periods of their under-trial
detention are not to be reckoned or set off against their
sentences the petitioners’ cases could not be said to have
become ripe for consideration for pre-mature release. Even
otherwise, according to the Respondent-State the
petitioners’ cases, have not become ripe for such
consideration because the periods of substantive or actual
imprisoment, the remissions earned and the periods of under-
trial detention as set out by the petitioners are not
correct. According to the Respondent-State in the case of
Kartar Singh the net period of substantive or actual
imprisonment is 6 years 9 months and 11 days, the remissions
earned by him amount to 4 years S months and 24 days, to
which even if the period of undertrial detention, which is 1
year 8 months and 4 days, is added the total comes to 12
years, 11 months and 9 days and not 14 years as required by
Para 516-B of the Punjab/Haryana Jail Manual; in the case of
Mukhtiar Singh the net period of substantive or actual
imprisoment is 7 years, zero month and six days, the
remissions earned by him amount to 4 years, 7 months and 10
days, to which even if the period of under-trial detention
which is 1 year, 8 months and 4 days is added the total
comes to 13 years, 3 months and 20 days and not 14 years as
required by the said Para 516-B; in the case of Baljit Singh
the net substantive or actual imprisonment under gone by him
is 4 years, 9 months and 10 days, the remissions earned by
him amount to 3 years, 8 months, 11 days, to which even if
the period of uodertrial detention which is 2 years, I month
and 13 days is added the total comes to 10 years, 7 months
and 4 days and not 14 years as required by the said Para
516-B. In any event, therefore, none of the petitioners is
entitled to have his case considered for pre-mature release
and therefore the petition is liable to be dismissed.
Since the legal question touching the proper
construction of
450
sec. 428 Cr. PC. was argued at length by counsel on either
side at the Bar we have decided to address ourselves to that
question without getting lost in the factual dispute as to
whether even after reckoning the periods of their under-
trial detention the petitioners are or are . P not entitled
to have their cases considered by the State Government for
pre-mature release under Para 516-B of the Punjab/Haryana
Jail Manual. In other words for the purpose of deciding the
question we shall proceed on the assumption that factually
if the periods of their under-trial detention are taken into
account the petitioners would be entitled to have their
cases considered for premature release. the question is
whether even on such assumed factual basis the petitioners
are in law entitled to get a set off of the said periods
against their sentences under sec. 428 of the Cr. P.C. and
if so, whether the impugned order dated 2nd February, 1981
issued by the Respondent-State is illegal or invalid.
At the outset it may be stated that the impugned order
dated 2nd February, 1981 is challenged as contravening sec.
428 but the constitutional validity of sec. 428 itself has
not been challenged. Admittedly all the three petitioners
have been convicted under sec.302, IPC and have been
sentenced to imprisonment for life and the question is
whether sec. 428 Cr. P.C. is applicable to them. Sec. 428
runs thus
428. Period of detention undergone by the accused
to be set off against the sentence of
imprisonment:
Where an accused person has, on conviction,
been sentenced to imprisonment for a term, the
period of detention, if any, undergone by him
during the investigation, inquiry or trial of the
same case and before the date of such conviction,
shall be set of against the term of imprisonment
imposed on him on such conviction, and the
liability of such person to undergo imprison –
ment on such conviction shall be restricted to the
remainder, if any of the term of imprisonment
imposed on him.
on a plain reading of the aforesaid provision it will be
clear that the cases of the petitioners, who have been
sentenced to imprisonment for life, would not fall within
the section, for, the section applies to an accused person
who has on conviction, been sentenced to imprison.
citizens of this ancient land having a feeling of
belonging to the civilised community governed by the liberty
oriented consitution. Personal liberty makes for the worth
of human being and is a cherished and prized right.
Deprivation thereof must be preceded by an inquiry ensuring
fair, just and reasonable procedure and trial by a judge of
unquestioned inte-
451
ment for a Term and it is only in cases of such persons who
have been sentenced to imprisonment for a term that the
period of their under trial detention has to be set off
against the term of the imprisonment imposed upon them and
the liability of such persons to undergo imprisonment has to
be restricted to the remainder, if any, imposed upon them.
Counsel for the petitioners, however, raised a two fold
contention. In the first place, he contended that persons
sentenced to imprisonment for life could be said to have
been sentenced to their life term which under the provisions
of the Penal Code (section 57) and Jail Manuals (Para 716-B)
are regarded as equivalent to 20 years or 14 years and as
such cases of life convicts would fall within the terms of
sec. 428. Secondly, in any event when remissions are
actually granted by the State Government under sec. 432 Cr.
P.C. Or by the Jail Authorities under the relevant remission
rules contained in Jail Manuals to life convicts their cases
should be treated as falling within the purview of sec. 428,
inasmuch as on the grant of remissions their sentences
become imprisonments for a term and since in the instant
case each one of the petitioners has been granted remissions
each is entitled to have the benefit of the set off
mentioned in sec. 428 of the Cr. P.C; and consequently the
impugned order of 2nd February,. 1981 issued by the
Respondent State would be illegal or invalid as contravening
the section. To support his contention Counsel relied upon a
decision of the Gujarat High Court in the case of Kalidas
Vanmalibhai v. State of Gujarat and Anr.(l) where that Court
has taken the view that a beneficent provision like the one
contained in sec. 428 Cr. P.C. should be made available to
convicts sentenced to life imprisonment. It is not possible
to accept the submissions of Counsel for the reasons which
we shall presently indicate.
In the first place a perusal of several sections of the
Indian Penal Code as well as Criminal Procedure Code will
show that both the Codes make and maintain a clear
distinction between imprisonment for life and imprisonment
for a term; in fact, the two expressions ‘imprisonment for
life’ and ‘imprisonment for a term’ have been used in
contra-distinction with each other in one and the same
section, where the former must mean imprisonment for the
remainder of the natural life of the convict (vide:
definition of ‘life’ in s. 45 I.P.C.) and the latter must
mean imprisonment for a definite or fixed
452
period. For instance sec. 304 I.P.C. provides that
punishment for culpable homicide not amounting to murder
shall be imprisonment for life or imprisonment of either
description for a term which may extend to ten years’;
section 305 provides that punishment for abetment of a
suicide of a child or insane person shall be ‘death or
imprisonment for life or imprisonment for a term not
exceeding ten years’; section 307 provides that punishment
for an attempt to commit murder accompanied by actual hurt
shall be imprisonment for life or imprisonment of either
description which may extend to ten years; so also,
voluntarily causing hurt in committing robbery is punishable
under sec. 394 with imprisonment for life or with rigorous
imprisonment for a term which may extend to ten years. Sec.
SS I.P.C. uses the two expressions in contra-distinction
with each other and says that an appropriate Government may
in every case in which sentence of imprisonment for life
shall have been passed commute the punishment for
imprisonment of either description for a term not exceeding
fourteen years; similarly, section 433(b) Cr. P.C. uses the
two expressions in contra-distinction with one another.
Having regard to such distinction which is being maintained
in both the Codes it will be difficult to slur over the
distinction on the basis that life convicts should be
regarded as having been sentenced to life-term or to say
that the two could be understood as interchangeable
expressions because basically the life term of any accused
is uncertain. Further, sec. 57 I.P.C. Or the Remission Rules
contained in Jail Manuals (e.g. Para 516-B of Punjab/Haryana
Jail Manual) are irrelevant in this context. section 57
I.P.C. provides that imprisonment for life shall be reckoned
as equivalent to imprisonment for twenty years for the
specific purpose mentioned therein, namely, for the purpose
of calculating fractions of terms of punishment and not for
all purposes; similarly Remissions Rules contained in Jail
Manuals cannot override statutory provisions contained in
the Penal Code and the sentence of imprisonment for life
will have to be regarded as a sentence for the remainder of
the natural life of the convict. The Privy Council in Pandit
Kishori Lal’s(1) case and this Court in Gopal Godse’s(2)
case have settled this position once and for all by taking
the view that a sentence for transportation for life or
imprisonment for life must be treated as transportation or
imprisonment for the whole of the
453
remaining period of the convicted person’s natural life.
This view A has been confirmed and followed by this Court in
two subsequent decisions-in Ratan Singh’s(l) case and Maru
Ram’s case (supra). In this view of the matter life convicts
would not fall within the purview of sec. 428, Cr. P.C.
The next submission that at least cases of life
convicts who n have been actually granted remissions either
by the State Government under sec. 432 Cr. P.C. Or by Jail
Authorities under the relevant Remission Rules should be
treated as falling within the purview of sec. 428 because on
the grant of remissions, their sentences become sentences of
imprisonment for a term is also without any substance. The
argument is fallacious for two reasons. In the first place,
an order of remission passed by the State Government or by
the Jail Authorities does not interfere with either the
conviction or sentence recorded by the Court which remains
intact; it merely affects the execution of the sentence
passed by the Court and frees the convicted person from his
liability to undergo the full term of imprisonment and it is
for this reason that an accused person has every right to
press his appeal against the conviction and sentence imposed
upon him, full remission notwithstanding. (Vide: Puttawwa v.
The State of Mysore(2) secondly, sec. 428 opens with the
words: “Where an accused person has, on conviction, been
sentenced to imprisonment for a term” and as such the
section will come into play in cases where ‘imprisonment for
a term’ is awarded on conviction by a court and not where
the convict’s sentence becomes a sentence for a term on
remission being granted by the Executive. In the latter case
the section on its own terms would be inapplicable.
The last submission has been that if convicts other
than life- convicts are entitled to the benefit of the set
off under sec. 428, there is no reason why life convicts
should be denied the advantage of this beneficial provision
and in this behalf it was pointed out that such an argument
has found favour with the Gujarat High Court in Kalidas
Vanmalibhai’s case (supra). In our view the question is not
whether the beneficient provision should be extended to
life- convicts on a priori reasoning or equitable
consideration but whether
454
on true construction the section comprises life convicts
within its purview and on construction it is not possible to
hold that they do. Moreover, if the objects and reasons for
introducing sec. 428 anew in the Code, as set out by the
Joint Committee in its Report are taken into account, it
will appear clear that cases of life convicts were never
intended to be covered by the provision. The Joint Committee
has stated the objects and reasons for introducing this
provision in the Code thus:
“The Committee has noted the distressing fact that
in many cases accused persons are kept in prison for a
very long period as under-trial prisoners and in some
cases the sentence of imprisonment ultimately awarded
is a fraction of the period spent in Jail as under-
trial prisoner. Indeed, there may even be cases where
such a person is acquitted. No doubt, sometimes courts
do take into account the period of detention undergone
as under-trial prisoner when passing sentence and
occasionally the sentence of imprisonment is restricted
to the period already undergone. But this is not always
the case so that in many cases, the accused person is
made to suffer jail life for a period out of all
proportion to the gravity of the offence or even to the
punishment provided in the statute. The Committee has
also noted that a large number of persons in the
overcrowded jails of today are under-trial prisoners.
The new clause seeks to remedy this unsatisfactory
state of affairs.”
It is obvious that the mischief sought to be remedied has no
relevance where gravity of offence requires the imposition
of imprisonment for life
Having regard to the above discussion, it is clear that
the benefit of the set off contemplated by sec. 428 Cr. P.C.
would not be available to life convicts. In our view, the
decision of the Gujarat High Court in the case of Kalidas
Vanmalibhai is erroneous and the contrary view taken by
Kerala High Court in Kanthalot Karunan & others v. State of
Kerala(1) by Bombay High Court in Rajahusein Gulamhusein
Lakhani v. The State of Maharashtra,(Z) Rafiq Abdul
455
Rehman v. The State of Maharashtra(l) and by Rajasthan- High
Court in Bhimsen v. The State of Rajasthan(2) is correct. In
this view of the matter, the impugned order dated 2nd
February, 1982 passed by the Respondent-State, being in
conformity with sec. 428 Cr. P.C., is perfectly legal and
valid.
In the result, the writ petition is dismissed.
H.L.C. Petitions dismissed.
456