PETITIONER:
ASHOK KUMAR ALIAS GOLU
Vs.
RESPONDENT:
UNION OF INDIA AND ORS.
DATE OF JUDGMENT10/07/1991
BENCH:
AHMADI, A.M. (J)
BENCH:
AHMADI, A.M. (J)
SAWANT, P.B.
AGRAWAL, S.C. (J)
CITATION:
1991 SCR (2) 858 1991 SCC (3) 498
JT 1991 (3) 46 1991 SCALE (2)17
ACT:
Constitution of India, 1950: Articles 14 and 21, 245 &
246-Insertion of S. 433A into the Code of Criminal
Procedure, 1973-Validity of-Colourable legislation fraud-
Meaning of-Doctrine of pith and substance-Applicability of.
Articles 72, 161: Clemency-Powers of-Sections 54 and 55
IPC-Section 433A Cr. P.C. and provisions of Remission Rules-
Whether subject to the overriding powers of clemency.
Indian Penal Code, 1860: Sections 45, 54, 55 and 57-
Fixing terms of imprisonment-`Life imprisonment'-Whether
imprisonment for full span of life.
Sections 54 and 55: Whether subject to overriding
powers of Articles 72/161 of the Constitution of India.
Criminal Procedure Code, 1973: Section 433A-Insertion
of-Whether a colourable legislation-Constitutional validity
of-IPC (Amendment) bill not passed by Lok Sabha while
passing Cr. P.C. (Amendment) Bill-Government claiming that
both the bills were interlinked-Effect on the Amendment
Bill passed, inserting S. 433A-Prisoners covered under the
Section-Prisoners who were sentenced to death by Courts, but
whose sentence commuted to life imprisonment by executive
clemency-Whether forms a distinct and separate class.
Sections 432, 433 and 433A: Release of prisoners under
Remission Rules-Remittance of sentence-Exercise of power
under sections 432 and 433-Whether restricted by S.433A.
Rajasthan Prisons (Shortening of Sentences) Rules,
1950: Premature release of Prisoners-Whether subject to
overriding powers of Sections 432, 433 and 433A Cr. P.C. and
Articles 72/161 of the Constitution of India, 1950.
Statutory Construction: External aid-Language of a
provision
859
plain and clear-Reading down the same with the aid of a Bill
which had not become an enactment-Whether could be resorted
to.
HEADNOTE:
The petitioner was convicted for murder and sentenced
to life imprisonment, which was confirmed by the High Court.
Later he filed a Writ Petition before the High Court for
premature release on the plea that he was entitled to be
considered for release under the Rajasthan Prisons
(Shortening of Sentences) Rules, 1958 notwithstanding the
insertion of Section 433A in the Code of Criminal Procedure,
1973 with effect from 18.12.1978, just two days before his
conviction. It was contended that Section 433A Cr. P.C.
which places an embargo of 14 years imprisonment before
premature release could not curtail the constitutional power
vested in the Governor by virtue of Article 161 of the
Constitution. The High Court, dismissed the Writ Petition
on the ground that the petitioner's representations to the
Government and State Home Minister were pending
consideration. However, the High Court directed that the
two representations of the petitioner should be disposed of
within one month.
Unable to secure his release from the High Court as
also from the State Government, the petitioner filed the
present Write Petition before this Court, contending that
the insertion of Section 433A in the Code of Criminal
Procedure was invalid; that in the absence of guidelines
under Arts. 72/161 of Constitution, Section 433A Cr. P.C.
could not apply to life convicts; that the Rajasthan Prisons
(Shortening of Sentences) Rules, 1958 would prevail over
Section 433A Cr. P.C., and that the constitutional guarantee
under Articles 14 and 21 was violated.
Dismissing the Writ Petition, this Court
HELD: 1.1. It is only when a legislature which has no
power to legislate frames a legislation so camouflaging it
as to appear to be within its competence when it knows it is
not, it can be said that the legislation so enacted is
colourable legislation. If in pith and substance the
legislation does not belong to the subject falling within
the limits of its power but is outside it, the mere form of
the legislation will not be determinate of the legislative
competence. [871C; 872C]
1.2. It is not a case of legislative incompetence to
enact section 433A. No such contention was raised.
Besides the question of vires of section 433A of the Code
has been determined by the Constitution Bench of this Court
in Maru Ram's case. This Court Repelled all the thrusts
aimed at challenging the constitutional validity of section
433A. [871A]
860
1.3. It is no body's contention that Parliament was not
competent to amend the Criminal Procedure Code by which
section 433A was inserted. Whether or not the connecting
Indian Penal Code (Amendment) Bill ought to have cleared or
not was matter left to the wisdom of the Lok Sabha. Merely
because the Criminal Procedure Bill was made law and the
Indian Penal Code (Amendment) Bill was passed by the Rajya
Sabha did not obligate the Lok Sabha to clear it. The Lok
Sabha could have its own views on the proposed Indian Penal
Code amendments. It may agree with the executive's policy
reflected in the Bill, with or without modifications, or not
at all. Merely because in the subsequent instructions
issued by the letter of July 10, 1979 and the accompanying
note, the Joint-Secretary had interlinked the two Bills, the
Lok Sabha was under no obligation to adopt the measure as
such representation could not operate as estoppel against
it. It is obvious that no question of mala fides on the
part of the legislature was involved in the enactment of one
legislation and failure to enact another. There is no
question of `legislative fraud' or `colourbale legislation'
involved in the backdrop of the legislative history of
section 433A of the Code of Criminal Procedure. [872D-H;
873A]
1.4. In the present case if both the Bills had become
law, then in understanding or construing one legislation or
the other, the scheme common to both would be kept in view
and be permitted to interact. But where the linkage does
not exist on account of the Indian Penal Code (Amendment)
Bill not having become law, section 433A cannot be read
down to apply to only those classes of capital offences to
which it would have applied had the said Bill been passed by
the Lok Sabha in the terms in which it was approved by the
Rajya Sabha. The language of section 433A is clear and
unambiguous and does not call for extrinsic aid for its
interpretation. To read down or interpret section 433A of
the Code with the aid of the changes proposed by the Indian
Penal Code (Amendment) Bill would tantamount to treating the
said Bills forming part of the Indian Penal Code, which is
clearly impermissible. To put such an interpretation with
the aid of such extrinsic material would result in violence
to the plain language of section 433A of the Code. [873D-F]
Maru Ram v. Union of India, [1981] 1 SCR 1196,
followed.
K.C. Gajapati Narayan Deo v. State of Orissa, [1954]
SCR 1 and Sonapur Tea Co. Ltd. v. Must Mariruznessa, [1962]
1 SCR 724, relied on.
861
State of Himachal Pradesh v. A Parent of a student of
Medical College, Simla, [1985] 3 SCC 169 and W.R. Moram v.
Deputy Commissioner of Taxation for N.S.W., [1940] AC 838,
referred to.
2.1. The law governing suspension, remission and
commutation of sentence is both statutory and
constitutional. The stage for the exercise of this power
generally speaking is post-judicial, i.e., after the
judicial process has come to an end. The duty to judge and
to award appropriate punishment to the guilty is a judicial
function which culminates by a judgment pronounced in
accordance with law. After the judicial function thus ends
the executive function of giving effect to the judicial
verdict commences. [873G-H; 874A]
2.2. One who could have been visited with the extreme
punishment of death but on account of the sentencing
court's generosity was sentenced to the lesser punishment of
imprisonment for life and another who actually was sentenced
to death but on account of executive generosity his
sentence was commuted under section 433(a) for imprisonment
for life have been treated under section 433A as belonging
to that class of prisoners who do not deserve to be released
unless they have completed 14 Years of actual
incarceration. Thus, the effect of section 433A is to
restrict the exercise of power under sections 432 and 433 by
the stipulation that the power will not be so exercised as
would enable the two categories of convicts referred to in
section 433A to freedom before they have completed 14 years
of actual imprisonment. This is the legislative policy
which is clearly discernible from the plain language of
section 433A of the Code. Such prisoners constitute a
single class and have, therefore, been subjected to the
uniform requirement of suffering atleast 14 years of
internment. [874G-H; 875A-C]
3. The expression `life imprisonment' must be read in
the context of section 45 IPC. Read so, it would ordinarily
mean imprisonment for the full or complete span of life.
Section 65, 116, 120 and 511 of the Indian Penal Code fix
the term of imprisonment thereunder as a fraction of the
maximum fixed for the principal offence. It is for the
purpose of working out this fraction that it became
necessary to provide under section 57 that imprisonment for
life shall be reckoned as equivalent to imprisonment for 20
years. If such a provision had not been made it would have
been impossible to work out the fraction of an indefinite
term. In order to work out the fraction of terms of
punishment provided in the above sections it was imperative
to lay down the equivalent term for life imprisonment.
[875G; 876C-E]
862
Gopal Goads v. State of Maharashtra, [1961] 3 SCR 440;
affirmed.
4.1 Unless the sentence for life imprisonment is
commuted or remitted by the appropriate authority under the
provisions of the relevant law, a convict is bound in law to
serve the entire life term in prison; the rules framed under
the Prisons Act or life statute may enable such a convict
to earn remissions but such remissions will not entitle him
to release before he has completed 14 years of incarceration
in view of section 433A of the Code unless of course power
has been exercised under Article 72/161 of the Constitution.
Where a person has been sentenced to imprisonment for life
the remissions earned by him during his internment in prison
under the relevant remission rules have a limited scope and
must be confined to the scope and ambit of the said rules
and do not acquire significance until the sentence is
remitted under section 432, in which case the remission
would be subject to limitation of section 433A of the Code,
or constitutional power has been exercised under Articles
72/161 of the Constitution. [878D-E]
4.2. Articles 72 and 161 confer the clemency power of
pardon, etc., on the President and the State Governors,
respectively. This constitutional power would override the
statutory power contained in sections 432 and 433 and the
limitation of section 433A of the Code as well as the power
conferred by sections 54 and 55 IPC. No doubt, this power
has to be exercised by the President/Governor on the advice
of his Council of Ministers. [880A-B]
4.3. Though in Maru Ram's case, this Court recommended
the framing of guidelines for the exercise of power under
Articles 72/161 of the Constitution of India, it had no
binding effect on the Constitution Bench which decided Kehar
Singh's case. Nor has this Court said anything in Kehar
Singh's case with regard to using the provisions of extent
Remission Rules as guidelines for the exercise of clemency
powers. [881H; 882A]
Maru Ram v. Union of India, [1981] 1 SCR 1196; Kehar
Singh v. Union of India, [1989] 1 SCC 204; Bhagirath v.
Delhi Administration, [1985] 3 SCR 743 and Gopal Godse v.
State of Maharashtra, [1961] 3 SCR 440, affirmed.
5. It is true that Articles 72/161 make use of two
expressions `remissions' with regard to punishment and
`remit' in relation to sentence but it is not proper to
express any opinion as to the content and amplitude of these
two expressions in the abstract, in the absence of a fact-
situation. [882B]
863
6.1 The hypothetical question whether it was
permissible in law to grant conditional premature release to
a life convict even before
completion of 14 years of actual imprisonment, which release
would tantamount to the prisoner serving time for the
purpose of section 433A Cr. P.C., need not be answered
without being fully aware of the conditions imposed for
release. In each case, the question whether the grant of
conditional premature release answers the test laid down by
this Court in Maru Ram's case, would depend on the nature of
the conditions imposed and the circumstances in which the
order is passed and is to be executed. No general
observation can be made. [882C-H]
Maru Ram v. Union of India, [1981] 1 SCR 1196; referred
to.
7. In the instant case, petitioner has not completed 14
years of actual incarceration and as such he cannot invoke
sections 43 and 433 of the Code of Criminal Procedure. His
continued detention is consistent with section 433A of the
Code and there is nothing on record to show that it is
otherwise illegal and void. The outcome of his clemency
application under the Constitution is not put in issue in
the present proceedings if it has been rejected, and if the
same is pending despite the directive of the High Court it
would be open to the petitioner to approach the High Court
for the compliance of its order. [883E-F]
JUDGMENT:
ORIGINAL JURISDICTION: Writ (Crl.) Petition No. 96 of
1989.
(Under Article 32 of the Constitution of India).
Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the
Petitioner.
V.C. Mahajan Mrs. Indra Sawhney, Ms. A. Subhashini,
Aruneshwar Gupta, Surya Kant and I. Makwana for the
Respondents.
The Judgment of the Court was delivered by
AHMADI, J. Liberty is the life line of every human
being. Life without liberty is `lasting’ but not `living’.
Liberty is, therefore, considered one of the most precious
and cherished possessions of a human being. Any attempt to
take liberties with the liberty of a human being is visited
with resistance. Since no human being can tolerate fetters
on his personal liberty it is not surprising that the
petitioner Ashok Kumar alias Golu continues to struggle for
his liberty, premature release, not fully content with the
enunciation of the law in this behalf
864
by this Court in Maru Ram v. Union of India, {1981] 1 SCR
1196.
The questions of law which are raised in this petition
brought under Article 32 of the Constitution arise upon
facts of which we give an abridged statement. On the basis
of a FIR lodged on October 21, 1977, the petitioner was
arrested on the next day and he along with others was
chargesheeted for the murder of one Prem Nagpal. The
petitioner was tried and convicted for murder on December
20, 1978 in Sessions Case No. 32 of 1978 by the learned
Sessions Judge, Ganganagar, and was ordered to suffer
imprisonment for life. His appeal, Criminal Appeal No. 40
of 1979, was dismissed by the High Court of Rajasthan. Since
then he is serving time. It appears that he filed a Habeas
Corpus Writ Petition No. 2963 of 1987 in the High Court of
Rajasthan at Jodhpur for premature release on the plea that
he was entitled to be considered for such release under the
relevant rules of Rajasthan Prisons (Shortening of
Sentences) Rules, 1958, (hereinafter alluded to as `the 1958
Rules’) notwithstanding the insertion of Section 433A in the
Code of Criminal Procedure, 1973 (hereinafter called `the
Code’) with effect from December 18, 1978, just two days
before his conviction. His grievance was that he was being
denied the benefit of early release under the 1958 Rules
under the garb of the newly added Section 433A, on the
ground that it places a statutory embargo against the
release of such a convict `unless he has served atleast 14
years of imprisonment’. He contended that the said
provision could not curtail the constitutional power vested
in the Governor by virtue of Article 161 of the Constitution
which had to be exercised on the advice of the Council of
Ministers which advice could be based on a variety of
considerations including the provisions of the 1958 Rules.
The writ petition was, however, dismissed by the High Court
on October 31, 1988, on the ground that it was premature
inasmuch as the petitioner’s two representations, one to the
Governor and another to the State Home Minister, were
pending consideration. The High Court directed that they
should be disposed of within one month. In this view of the
matter the High Court did not deem it necessary to consider
the various questions of law raised in the petition on
merits. After the rejection of his writ petition by the
High Court, the petitioner through his counsel addressed a
letter dated November 28, 1988 to the Governor inviting his
attention to the earlier representation dated August 29,
1988 and requesting him to take a decision thereon within a
month as observed by the High Court. Failing to secure his
early release notwithstanding the above efforts, the
petitioner has invoked the extraordinary jurisdiction of
this Court under Article 32 of the Constitution.
865
The petitioner’s case in a nutshell is that under the
provisions of the 1958 Rules, a `lifer’ who has served an
actual sentence of about 9 years and 3 months is entitled to
be considered for premature release if the total sentence
including remissions works out to 14 years and he is
reported to be of good behaviour. However, the petitioner
contends, his case for premature release is not considered
by the concerned authorities in view of the newly added
section 433A of the Code on the interpretation that by
virtue of the said provision the case of a `lifer’ cannot be
considered for early release unless he has completed 14
years of actual incarceration, the provisions of sections
432 and 433 of the Code as well as the 1958 Rules
notwithstanding. According to him, even if the provisions
of sections 432 and 433 of the Code do not come into play
unless a convict sentenced to life imprisonment has
completed actual incarceration for 14 years as required by
section 433A, the authorities have failed to realise that
section 433A cannot override the constitutional power
conferred by Articles 72 and 161 of the Constitutional on
the President and the Governor, respectively, and the State
Government i.e., the Council of Ministers, could advise the
Governor to exercise power under Article 161 treating the
1958 Rules as guidelines. Since the petitioner had already
moved the Governor under Article 161 of the Constitution it
was incumbent on the State Government to consider his
request for early release, notwithstanding section 433A, and
failure to do so entitled the petitioner to immediate
release as his continued detention was, wholly illegal and
invalid. In support of this contention the petitioner has
placed reliance on the ratio of Maru Ram’s decision.
The petitioner brands section 433A of the Code to be a
`legislative fraud’ inasmuch as the said provision was got
approved by the Parliament on the assurance that the said
provision is complementary to the various amendments
proposed in the Indian Penal Code. In the alternative it is
contended that in any case this Court should by a process of
interpretation limit the scope of section 433A of the Code
to those cases only to which it would have been limited had
the legislation proposing amendments in the Indian Penal
Code gone through. In any case after the decision of this
Court in Maru Ram’s case, the efficacy of section 433A is
considerably reduced and the petitioner is entitled to early
release by virtue of the power contained in ARticle 161 read
with the 1958 Rules even if guidelines are not formulated
notwithstanding the subsequent decision of this Court in
Kehar Singh v. Union of India, [1989] 1 SCC 204. Counsel
submitted that after the decision of this Court in Bhagirath
v. Delhi Administration, [1985] 3 SCR 743 whereunder this
Court extended the benefit of section 428 of the Code even
866
to life convicts, the ratio in Gopal Godse v. State of
Maharashtra, [1961] 3 SCR 440 had undergone a change. On
this broad approach, counsel for the petitioner, formulated
questions of law which may be stated as under:
1. Whether the insertion of section 433A in the
Code was a legislative fraud inasmuch as the
connected legislation, namely, the Indian Penal
Code (Amendment) Bill XLII of 1972 did not become
law although passed by the Rajya Sabha as the IPC
(Amendment) Act, 1978, on November 23, 1978?
2. Whether on the ration of Maru Ram’s decision, in
the absence of any guidelines formulated by the
State under Article 72 of 161 of the Constitution,
section 433A of the Code would not apply to life
convicts and the 1958 Rules will prevail for the
purpose of exercise of power under Article 72 of
161 of the Constitution?
Inter-connected with this question, the following .l
questions were raised:
a) Whether Maru Ram’s decision is in conflict with
Kehar Singh’s Judgment on the question of necessity
or otherwise of guidelines for the exercise of
power under Article 7 and 161 of the constitution?
b) Whether the use of two expressions “remission”
and “remit” in Articles 72 and 161 convey two
different meanings and if yes, whether the content
f power in the two expressions is different?
c) Whether the persons sentenced to death by Court,
whose death sentence has been commuted to life
imprisonment by executive clemency, form a distinct
and separate class for the purpose of application
of section 433A of the Code as well as for the
purpose of necessity (or not) of guidelines for
premature release in exercise of power under
Articles 72 and 161, from the persons who at the
initial stage itself were sentenced to life
imprisonment by court verdict? And whether in the
latter case guidelines are mandatory under Article
72 and 161 and a well designed scheme of remission
must be formulated if the constitutional guarantee
under Articles 14 and 21 is to be preserved?
d) Whether the whole law of remission needs to be
reviewed after Bhagirath’s case wherein this Court
held that imprisonment
867
for life is also an imprisonment for a term and
that a life convict is entitled to set off under
section 428 Cr. P.C.?
e) Whether it is permissible in law to grant
conditional premature release to a life convict
even before completion of 14 years of actual
imprisonment notwithstanding section 433A of the
Code? If yes, whether the grant of such conditional
release will be treated as the prisoner actually
serving time for the purpose of section 433A of the
Code?
First the legislative history. The Law Commission had
in its 42nd Report submitted in June, 1971 suggested
numerous changes in the Indian Penal Code (IPC). Pursuant
thereto an Amendment Bill No. XLII of 1972 was introduced in
the Rajya Sabha on December 11, 1972 proposed wide ranging
changes in the IPC. One change proposed was to bifurcate
section 302, IPC into two parts, the first part providing
that except in cases specified in the second part, the
punishment for murder will be imprisonment for life whereas
for the more heinous crimes enumerated in clauses (a) to
(c), of sub-section (2) the punishment may be death or
imprisonment for life. A motion for reference of the Bill
to the Joint Committee of both the Houses was moved in the
Rajya Sabha on December 14, 1972 by the then Minister of
State in the Ministry of Home Affairs and was adopted on the
same day. The Lok Sabha concurred in the motion of the
Rajya Sabha on December 21, 1972. The Joint Parliamentary
Committee presented its report to the Rajya Sabha on January
29, 1976 recommending changes in several clauses of the
Bill. While retaining the amendment proposed in section
302, IPC, it recommended inclusion of one more clause (d)
after clause (c) in sub-section (2) thereof and at the same
time recommended deletion of section 303, IPC. It also
recommended substitution of the existing section 57, IPC, by
a totally new section, the proviso whereto has relevance.
The proposed proviso was as under:
“Provided that where a sentence of imprisonment for
life is imposed on conviction of a person for a
capital offence, or where a sentence of death
imposed on a person has been commuted into one of
imprisonment for life, such person shall not be
released from prison unless he had served at least
fourteen years of imprisonment.”
The reason which impelled the Committee to introduce the
above proviso was “That sometimes due to grant of remission
even murderers sentenced or commuted to life imprisonment
were released at the end
868
of 5 to 6 years.” The Committee, therefore, felt that such a
convict should not be released unless he has served atleast
14 years of imprisonment. It is evident from the scheme of
the aforesaid recommendations that the proviso was intended
to apply to only those convicts who were convicted for a
capital offence (this expression was defined by clause 15 of
the Bill recommending substitution of section 40, IPC, as
`an offence for which death is one of the punishments
provided by law’) or whose sentence of death was commuted
into one of imprisonment for life and not to those who were
governed by the first part of the proposed section 302, IPC.
It was pointed out by counsel that similar benefit would
have accrued to offenders convicted for offences covered
under section 305, 307 or 396 if the proposed sections 305,
307(b) and 396(b) had come into being. That, contends the
petitioner’s counsel, would have considerably narrowed down
the scope of the proposed proviso to section 57, IPC, and
consequently the rigour of the said provision would have
fallen on a tiny minority of offenders guilty of a capital
offence. Pursuant to the recommendations made by the
Committee, two bills, namely, the IPC (Amendment) Bill,
1978, came to be introduced, the former was passed with
changes by the Rajya Sabha on November 23, 1978 while the
latter was introduced in the Lok Sabha on November 8, 1978,
and in the Rajya Sabha on December 5, 1978. The proposal to
add a proviso to the proposed section 57, IPC did not find
favour as it was thought that the said subject matter
appropriately related to Chapter XXXII of the Code and
accordingly the said provision was introduced as section
433A in the Code. While the amendments to the Code became
law with effect from December 18, 1978, the IPC amendments,
though passed by the Rajya Sabha could not be got through
the Lok-Sabha and lapsed. It may here be mentioned that the
IPC Bill as approved by the Rajya Sabha contained the
proposal to divide section 302 into two parts, in fact an
additional clause was sought to be introduced in the second
part thereof and sections 305, 307 and 396 were also sought
to be amended as proposed by the Committee. This in brief
is the legislative history.
In the backdrop of the said legislative history,
counsel for the petitioner argued that a legislative fraud
was practised by enacting section 433A of the Code and
failing to carry out the corresponding changes in sections
302, 305, 307, 396, etc., assured by the passing of the
Indian Penal Code (Amendment) Act, 1978, by the Rajya Sabha
on November 23, 1978. According to him it is evident from
the scheme of the twin Amendment Bills that the legislative
intent was to apply the rigour of section 433A of the Code
to a small number of heinous
869
crimes which fell within the meaning of the expression
capital offence. It was to achieve this objective that
section 302, IPC was proposed to be bifurcated so that a
large number of murders would fall within the first part of
the proposed provision which prescribed the punishment of
life imprisonment only and thus fell beyond the mischief
of section 433A of the Code. To buttress his submission our
attention was invited to Annexure II to the petition which
is a copy of the letter dated July 10, 1979, written by the
Joint-Secretary in the Ministry of Home Affairs to Home
Secretaries of all the concerned State Governments
explaining the purport of the newly added section 433A.
After explaining that section 57, IPC, had a limited scope,
namely, calculating fractions of terms of imprisonment only,
he proceeds to state in paragraph 3 of the letter as under:
“The restrictions imposed by section 433A applies
only to those life convicts who are convicted for
offences for which death is one of the punishments
prescribed by law. In the Indian Penal Code
(Amendment) Bill, 1978 as passed by the Rajya Sabha
and now pending in the Lok Sabha, section 302 is
proposed to be amended so as to provide that the
normal punishment for murder shall be imprisonment
for life and that only in certain cases of
aggravating circumstances will the court have
discretion to award death sentences.”
Then in paragraph 4 he proceeds to clarify as under:
“Even regarding these convicts the restriction
imposed by section 433A is not absolute for, the
Constitutional power of the Governor under Article
161 to commute and remit sentences remains
unaffected and can be exercised in each case in
which the exercise of this power is considered
suitable.”
Then in paragraph 4 he proceeds to clarify as under:
“Even regarding these convicts the restriction
imposed by section 433A is not absolute for, the
Constitutional power of the Governor under Article
161 to commute and remit sentences remains
unaffected and can be exercised in each case in
which the exercise of this power is considered
suitable.”
In paragraph 6 of the detailed note appended to the said
letter, the legal position was explained thus:
“It may be pointed out that the restriction
introduced by section 433A does not apply to all
life convicts. It applies only to those prisoners
who are convicted of a capital offence i.e. an
offence for which death is one of the punishments
prescribed by law. Once the Indian Penal Code
(Amendment) Bill becomes the law, offenders
sentenced
870
under proposed section 302(i) will not be covered
by this provision as the offence will not be a
capital offence. Thus in future the restriction
introduced by section 433A will not be applicable
to them and will, in effect, cover only a very
small number of cases. Even in this small number
of cases the restriction will not in any way curb
the Constitutional power to grant remission and
commutation vested in the President or the Governor
by virtue of Articles 72 and 161.”
There can be no doubt that by this letter it was clarified
that section 433A of the Code will apply to only those
convicted of a capital offence and not to all life convicts.
It is equally clear that the said provision was expected to
apply to exceptionally heinous offences falling within the
definition of `capital offence’ once the Indian Penal Code
(Amendment) Bill became law. Section 433A was, therefore,
expected to deny premature release before completion of
actual 14 years of incarceration to only those limited
convicts convicted of a capital offence, i.e., an
exceptionally heinous crime specified in the second part of
the proposed section 302, IPC. Lastly it clarifies that
section 433A cannot and does not in any way affect the
constitutional power conferred on the President/Governor
under ARticle 72/161 of the Constitution. It cannot,
therefore, be denied that this letter and the accompanying
note does give an impression that certain provisions of the
Indian Penal Code (Amendment) Boll were interlinked with
section 433A of the Code.
Assuming the Criminal Procedure Code (Amendment) Bill
and the Indian Penal Code (Amendment) Bill were intended to
provide an integrated scheme of legislation, can it be said
that the failure on the part of the Lok Sabha to pass the
letter renders the enactment of the former by which section
433A was introduced in the Code, `a legislative fraud’ as
counsel had liked to call it or to use a more familiar
expression `colourable exercise of legislative power’?
Counsel submitted that section 433A was got introduced on
the statute book by deception, in that, when the former Bill
was made law an impression was given that the twin
legislation which had already been cleared by the Rajya
Sabha on November 23, 1978 would in due course be cleared by
the Lok Sabha also so that the application of section 433A
would be limited to capital offences only and would have no
application to a large number of `lifers’. It must be
conceded that such would have been the impact if the Indian
Penal Code (Amendment) Bill was passed by the Lok Sabha in
the form in which the Rajya and approved it.
871
This is not a case of legislative incompetence to enact
section 433A. No such submission was made. Besides the
question of vires of section 433A of the Code has been
determined by the Constitution Bench of this Court in Maru
Ram’s case. This Court repelled all the thrusts aimed at
challenging the constitutional validity of section 433A. But
counsel submitted that the question was not examined from
the historical perspective of the twin legislations.
Counsel for the State submitted that it was not permissible
for us to reopen the challenge closed by the Constitution
Bench on the specious plea that a particular argument or
plea was not canvassed or made before that Bench. The
objection raised by counsel for the State Government is
perhaps not without substance but we do not propose to deal
with it because even otherwise we see no merit in the
submission of the petitioner’s counsel. It is only when a
legislature which has no power to legislate frames a
legislation so camouflaging it as to appear to be within its
competence when it knows it is not, it can be said that the
legislation so enacted is colourable legislation. In K.C.
Gajapati Narayan Deo v. State of Orissa, [1954] SCR 1 the
Orissa Agricultural Income-tax (Amendment) Act, 1950, was
challenged on the ground of colourable legislation or a
fraud on the Constitution as its real purpose was to effect
a drastic reduction in the amount of compensation payable
under the Orissa Estates Abolition Act, 1952. The facts
were that a Bill relating to the Orissa Abolition Act, 1952
was published in the Gazette on January 3, 1950. It
provided that any sum payable for agricultural income-tax
for the previous year should be deducted from the gross
asset of an estate for working out the net income on the
basis whereof compensation payable to the estate owner could
be determined. Thereafter on January 8, 1950, a Bill to
amend the Orissa Agricultural Income-tax, 1947, was
introduced to enhance the highest rate of tax from 3 annas
to 4 annas in a rupee and to reduce the highest slab from
Rs. 30,000 to Rs. 20,000. The next Chief Minister, however,
dropped this Bill and introduced a fresh Bill enhancing the
highest rate to 12 annas 6 pies in a rupee and reducing the
highest slab to rs. 15,000 only. On the same becoming law
it was challenged on the ground that the real purpose of the
legislation was to drastically reduce the compensation
payable to the estate owners. Mukherjea, J., who spoke for
the Court observed as under:
“It may be made clear at the outset that the
doctrine of colourable legislation does not involve
any question of bona fides or mala fides on the
part of the legislature. The whole doctrine
resolves itself into the question of competency of
a particular legislature to enact a particular law.
If
872
the legislature is competent to pass a particular
law, the motives which impelled it to act are
really irrelevant. On the other hand, if the
legislature lacks competency, the question of
motive does not arise at all. Whether a statute is
constitutional or not is thus always a question of
power.”
Thus the whole doctrine resolves itself into a question of
competency of the concerned legislature to enact the
impugned legislation. If the legislature has transgressed
the limits of its powers and if such transgression is
indirect, covert or disguised, such a legislation is
described as colourable in legal parlance. The idea
conveyed by the use of the said expression is that although
apparently a legislature in passing the statute purported to
act within the limits of its powers, it had in substance and
reality transgressed its powers, the transgression being
veiled by what appears on close scrutiny to be a mere
pretence or disguise. In other words if in pith and
substance the legislation does not belong to the subject
falling within the limits of its power but is outside it,
the mere form of the legislation will not be determinate of
the legislative competence. In Sonapur Tea Co. Ltd. v.
Must. Mazirunnessa, [1962] 1 SCR 724 it was reiterated
relying on Gajapati’s case that the doctrine of colourable
legislation really postulates that legislation attempts to
do indirectly what it cannot do directly. Such is not the
case before us. It is no body’s contention that Parliament
was not competent to amend the Criminal Procedure Code by
which section 433A was inserted. Whether or not the
connecting Indian Penal Code (Amendment) Bill ought to have
been cleared or not was a matter left to the wisdom of the
Lok Sabha. Merely because the Criminal Procedure Bill was
made law and the Indian Penal Code (Amendment) Bill was
passed by the Rajya Sabha did not obligate the Lok Sabha to
clear it. The Lok Sabha to clear it. The Lok Sabha could
have its own views on the proposed Indian Penal Code
amendments. It may agree with the executive’s policy
reflected in the Bill, with or without modifications, or not
at all. Merely because in the subsequent instructions
issued by the letter of July 10, 1979 and the accompanying
note (Annex. II) the Joint-Secretary had interlinked the two
Bills, the Lok Sabha was under no obligation to adopt the
measure as such representation could not operate as estoppel
against it. Even the indirect attempt on the part of the
High Court of Himachal Pradesh in the ragging case to force
the State Government to legislate, State of Himachal Pradesh
v. A Parent of a student of Medical College, Simla, [1985] 3
SCC 169 was disapproved by this Court as a matter falling,
outside the functions and duties of the judiciary. It is,
therefore, obvious that no question of mala fides on the
part of the legislature was involved in the enactment of one
legislation and failure to
873
enact another. There is no question of `legislative fraud’
or `colourable legislation’ involved in the backdrop of the
legislative history of section 433A of the Code as argued on
behalf of the petitioner.
Counsel for the Petitioner, However, tried to seek
support form the Privy Council decision in W.R. Moram v.
Deputy Commissioner of Taxation for N.S.W., [1940] AC 838
Wherein the question to be considered was whether the
legislative scheme was a colourable one forbidden by section
5(ii) of the Australian Constitution. There was no attempt
to disguise the scheme as it was fully disclosed. The Privy
Council, while holding that the scheme was not a colourable
legislation, observed that `where there is admittedly a
scheme of proposed legislation, it seems to be necessary
when the `pith and substance’ or `scope and effect’ of any
one of the Acts is under consideration, to treat them
together and to see how they interact’. But that was a case
where the scheme was carried out through enactments passed
by the concerned legislatures. It is in that context that
the above observations must be read and understood. In the
present case also if both the Bills had become law, counsel
would perhaps have been justified in demanding that in
understanding or construing one legislation or the other,
the scheme common to both must be kept in view and be
permitted to interact. But where the linkage does not exist
on account of the Indian Penal Code (Amendment) Bill not
having become law we are unable to appreciate how section
433A can be read down to apply to only those classes of
capital offences to which it would have applied had the said
Bill been passed by the Lok Sabha in the terms in which it
was approved by the Rajya Sabha. The language of section
433A is clear and unambiguous and does not call for
extrinsic aid for its interpretation. To accept the
counsel’s submission to read down or interpret section 433A
of the Code with the aid of the change proposed by the
Indian Penal Code (Amendment) Bill would tantamount to
treating the provisions of the said Bill as forming part of
the Indian Penal Code which is clearly impermissible. To
put such an interpretation with the aid of such extrinsic
material would result in violence to the plain language of
section 433A of the Code. We are, therefore, unable to
accept even this second limb of the contention.
The law governing suspension, remission and commutation
of sentence is both statutory and constitutional. The stage
for the exercise of this power generally speaking is post-
judicial, i.e., after the judicial process has come to an
end. The duty to judge and to award the appropriate
punishment to the guilty is a judicial function which
culminates by a judgment pronounced in accordance with law.
After
874
the judicial function thus ends the executive function of
giving effect to the judicial verdict commences. We first
refer to the statutory provisions. Chapter III of IPC deals
with punishments. The punishments to which the offenders
can be liable are enumerated in section 53, namely, (i)
death (ii) imprisonment for life (iii) imprisonment of
either description, namely, rigorous or simple (iv)
forfeiture of property and (v) fine. Section 54 empowers the
appropriate government to commute the punishment of death
for any other punishment. Similarly section 55 empowers the
appropriate government to commute the sentence of
imprisonment for life for imprisonment of either description
for a term not exceeding 14 years. Chapter XXXII of the
Code, to which section 433A was added, entitled `Execution,
Suspension, Remission and Commutation of sentences’ contains
sections 432 and 433 which have relevance; the former
confers power on the appropriate government to suspend the
execution of an offender’s sentence or to remit the whole or
any part of the punishment to which he has been sentenced
while the latter confers power on such Government to commute
(a) a sentence of death for any other punishment (b) a
sentence of imprisonment for life, for imprisonment for a
term not exceeding 14 years of for fine (c) a sentence of
rigorus imprisonment for simple imprisonment or for fine and
(d) a sentence of simple imprisonment for fine. It is in
the context of the aforesaid provisions that we must read
section 433A which runs as under:
“433A. Restriction on powers of remission or
commutation in certain cases-Notwithstanding
anything contained in Section 432, where a sentence
of imprisonment for life is imposed on conviction
of a person for an offence for which death is one
of the punishments provided by law, or where a
sentence of death imposed on a person has been
commutted under section 433 into one of
imprisonment for life, such person shall not be
released from prison unless he had served at least
fourteen years of imprisonment.”
The section begins with a non-obstante clause
notwithstanding anything contained in section 432 and
proceeds to say that where a person is convicted for an
offence for which death is one of the punishments and has
been visited with the lesser sentence of imprisonment for
life or where the punishment of an offender sentenced to
death has been commuted under section 433 into one of
imprisonment for life, such offender will not be released
unless he has served at least 14 years of imprisonment. The
reason which impelled the legislature to insert this
provision has been stated earlier. Therefore, one who could
have been
875
visited with the extreme punishment of death but on account
of the sentencing court’s generosity was sentenced to the
lesser punishment of imprisonment for life and another who
actually was sentenced to death but on account of executive
generosity his sentence was commutted under section 433(a)
for imprisonment for life have been treated under section
433A as belonging to that class of prisoners who do not
deserve to be released unless they have completed 14 years
of actual incarceration. Thus the effect of section 433A is
to restrict the exercise of power under sections 432 and 433
by the stipulation that the power will not be so exercised
as would enable the two categories of convicts referred to
in section 433A to freedom before they have completed 14
years of actual imprisonment. This is the legislative
policy which is clearly discernible from the plain language
of section 433A of the Code. Such prisoners constitute a
single class and have, therefore, been subjected to the
uniform requirement of suffering atleast 14 years of
internment.
Counsel for the petitioner next submitted that after
this court’s decision in Bhagirath’s case permitting the
benefit of set off under section 428 in respect of the
detention period as an undertrial, the ratio of the decision
in Godse’s case must be taken as impliedly disapproved. We
see no basis for this submission. In Godse’s case the
convict who was sentenced to transportation for life had
earned remission for 2963 days during his internment. He
claimed that in view of section 57 read with section 53A,
IPC, the total period of his incarceration could not exceed
20 years which he had completed, inclusive of remission,
and, therefore, his continued detention was illegal.
Section 57, IPC reads as follows:
“57. Fractions of terms of punishment-In
calculating fractions of terms of punishment,
imprisonment for life shall be reckoned as
equivalent to imprisonment for twenty years.”
The expression `imprisonment for life’ must be read in the
context of section 45, IPC. Under that provision the word
`life’ denotes the life of a human being unless the contrary
appears from the context. We have seen that the punishments
are set out in section 53, imprisonment for life being one
of them. Read in the light of section 45 it would
ordinarily mean imprisonment for the full or complete span
of life. Does section 57 convey to the contrary? Dealing
with this contention based on the language of section 57,
this Court observed in Godse’s case at pages 444-45 as
under:
876
“Section 57 of the Indian Penal Code has no real
bearing on the question raised before us. For
calculating fractions of terms of punishment the
section provides that transportation for life shall
be regarded as equivalent to imprisonment for
twenty years. It does not say that transportation
for life shall be deemed to be transportation for
twenty years for all purposes; nor does the amended
section which substitutes the words “imprisonment
for life” for “transportation for life” enable the
drawing of any such all embracing fiction. A
sentence of transportation for life or imprisonment
for life must prima facie be treated as
transportation or imprisonment for the whole of the
remaining period of the convicted person’s natural
life.”
This interpretation of section 57 gets strengthened if we
refer to sections 65, 116, 120 and 511, of the Indian Penal
Code which fix the term of imprisonment thereunder as a
fraction of the maximum fixed for the principal offence. It
is for the purpose of working out this fraction that it
became necessary to provide that imprisonment for life shall
be reckoned as equivalent to imprisonment for 20 years. If
such a provision had not been made it would have been
impossible to work out the fraction of an in-definite term.
In order to work out the fraction of terms of punishment
provided in sections such as those enumerated above, it was
imperative to lay down the equivalent term for life
imprisonment.
The second contention urged before the Court in Godse’s
case was based on the Bombay Rules governing the remission
system framed in virtue of the provisions contained in the
Prisons Act, 1894. This Court pointed out that the Prisons
Act did not confer on any authority a power to commute or
remit sentences. The Remission Rules made thereunder had,
therefore, to be confined to the scope and ambit of that
statute and could not be extended to other statutes. Under
the Bombay Rules three types of remissions for good conduct
were allowed and for working them out transportation for
life was equated to 15 years of actual imprisonment.
Dealing with Godse’s plea for premature release on the
strength of these rules this Court observed at page 447 as
under:
“The rules framed under the Prisons Act enable such
a person to remission ordinary, special and State-
and the said remissions will be given credit
towards his term of imprisonment. For the purpose
of working out the remis-
877
sions the sentence of transportation for life is
ordinarily equated with a definite period, but it
is only for that particular purpose and not for any
other purpose. As the sentence of transportation
for life or its prison equivalent the life
imprisonment is one of indefinite duration, the
remissions so earned do not in practice help such a
convict as it is not possible to predicate the time
of his death. That is why the rules provide for a
procedure to enable an appropriate Government to
remit the sentence under section 401 (now section
432) of the Code of Criminal Procedure on a
consideration of the relevant factors including the
period of remissions earned. The question of
remission is exclusively within province of the
appropriate Government; and in this case it is
admitted that though the appropriate Government
made certain remissions under section 401 of the
Code of Criminal Procedure, it did not remit the
entire sentence.”
On this line of reasoning the submission of counsel that if
the Court were to take the view that transportation for life
or imprisonment for life enures till the last breath of the
convict passes out, the entire scheme of remissions framed
under the Prisons Act or any like statute and the whole
exercise of crediting remissions to the account of the
convict would collapse, was spurned. This Court came to the
conclusion that the Remission Rules have a limited scope and
in the case of a convict undergoing sentence of
transportation for life or imprisonment for life it acquires
significance only if the sentence is commuted or remitted,
subject to section 433A of the Code or in exercise of
constitutional power under Articles 72/161.
In Maru Ram’s case the Constitution Bench reaffirmed
the ratio of Godse’s case and held that the nature of a
life sentence is incarceration until death; judicial
sentence for imprisonment for life cannot be in jeopardy
merely because of long accumulation of remissions. Release
would follow only upon an order under section 401 of the
Criminal Procedure Code, 1898 by the appropriate Government
or on a clemency order in exercise of power under Articles
72/161 of the Constitution. At page 1220 the Constitution
Bench expressed itself thus:
“Ordinary where a sentence is for a definite term,
the calculus of remissions may benefit the prisoner
to instant release at that point where the
substraction result is zero.
878
Here, we are concerned with life imprisonment and
so we come upon another concept bearing on the
nature of sentence which has been highlighted in
Godse’s case. Where the sentence is indeterminate
or of uncertain duration, the result of
substraction from an uncertain quantity is still an
uncertain quantity and release of the prisoner
cannot follow except on some fiction of
quantification of a sentence of uncertain
duration.”
Referring to the facts of Godse’s case and affirming the
view that the sentence of imprisonment for life enures upto
the last breath of the convict, this Court proceeded to
estate as under:
“Since death was uncertain, deduction by way of
remission did not yield any tangible date for
release and so the prayer of Godse was refused.
The nature of a life sentence is incarceration
until death, judicial sentence of imprisonment for
life cannot be in jeopardy merely because of the
long accumulation of remissions.”
It is, therefore, clear from the aforesaid observations that
unless the sentence for life imprisonment is commuted or
remitted as stated earlier by the appropriate authority
under the provisions of the relevant law, a convict is bound
in law to serve the entire life term in prison; the rules
framed under the Prisons Act or like statute may enable such
a convict to earn remissions but such remissions will not
entitle him to release before he has completed 14 years of
incarceration in view of section 433A of the Code unless of
course power has been exercised under Article 7/161 of the
Constitution.
It will thus be seen from the ratio laid down in the
aforesaid two cases that where a person has been sentenced
to imprisonment for life the remissions earned by him during
his internment in prison under the relevant remission rules
have a limited scope and must be confined to the scope and
ambit of the said rules and do not acquire significance
until the sentence is remitted under section 432, in which
case the remission would be subject to limitation of section
433A of the Code, or constitutional power has been exercised
under Article 72/161 of the Constitution. In Bhagirath’s
case the question which the Constitution Bench was required
to consider was whether a person sentenced to imprisonment
for life can claim the benefit of section 428 of the Code
which, inter alia provides for setting off the period of
detention undergone by the accused as an undertrial against
the sentence of
879
imprisonment ultimately awarded to him. Referring to section
57, IPC, the Constitution Bench reiterated the legal
position as under:
“The provision contained in Section 57 that
imprisonment for life has to be reckoned as
equivalent to imprisonment for 20 years is for the
purpose of calculating fractions of terms in
punishment. We cannot press that provision into
service for a wider purpose.”
These observations are consistent with the ratio laid down
in Godse and Maru Ram’s cases. Coming next to the question
of set off under section 428 of the Code, this Court held:
“The question of setting off the period of
detention undergone by an accused as an undertrial
prisoner against the sentence of life imprisonment
can arise only if an order is passed by the
appropriate authority under section 432 of section
433 of the Code. In the absence or such order,
passed generally or specially, and apart from the
provisions, if any of the relevant Jail Manual,
imprisonment for life would mean, according to the
rule in Gopal Vinayak Godse, imprisonment for the
remainder of life.”
We fail to see any departure from the ratio of Godse’s case;
on the contrary the afore-quoted passage clearly shows
approval of that ratio and this becomes further clear from
the final order passed by the Court while allowing the
appeal/writ petition. The Court directed that the period of
detention undergone by the two accused as undertrial
prisoners would be set off against the sentence of life
imprisonment imposed upon them, subject to the provisions
contained in section 433A and, `provided that orders have
been passed by the appropriate authority under section 433
of the Code of Criminal Procedure’. These directions make
it clear beyond any manner of doubt that just as in the case
of remissions so also in the case of set off the period of
detention as undertrial would enure to the benefit of the
convict provided the appropriate Government has chosen to
pass an order under sections 432/433 of the Code. The ratio
of Bhagirath’s case, therefore, does not run counter to the
ratio of this Court in the case of Godse or Maru Ram.
Under the Constitutional Scheme the President is the
Chief Executive of the Union of India in whom the executive
power of the Union vests. Similarly, the Governor is the
Chief Executive of the
880
concerned State and in him vests the executive power of that
State. Articles 72 and 161 confer the clemency power of
pardon, etc., on the President and the State Governors,
respectively. Needless to say that this constitutional
power would override the statutory power contained in
sections 432 and 433 and the limitation of section 433A of
the Code as well as the power conferred by sections 54 and
55, IPC. No doubt, this power has to be exercised by the
President/Governor on the advice of his Council of
Ministers. How this power can be exercised consistently
with Article 14 of the Constitution was one of the Questions
which this Court was invited to decide in Maru Ram’s case.
In order that there may not be allegations of arbitrary
exercise of this power this Court observed at pages 1243-44
as under:
“The proper thing to do, if Government is to keep
faith with the founding fathers, is to make rules
for its own guidance in the exercise of the pardon
power keeping, ofcourse, a large residuary power to
meet special situations or sudden developments.
This will exclude the vice of discrimination such
as may arise where two persons have been convicted
and sentenced in the same case for the same degree
of guilt but one is released and the other refused,
for such irrelevant reasons as religion, caste,
color or political loyalty.”
Till such rules are framed this Court thought that extant
remission rules framed under the Prisons Act or under any
other similar legislation by the State Governments may
provide effective guidelines of a recommendatory nature
helpful to the Government to release the prisoner by
remitting the remaining term. It was, therefore, suggested
that the said rules and remission schemes be continued and
benefit thereof be extended to all those who come within
their purview. At the same time the Court was aware that
special cases may require different considerations and `the
wide power of executive clemency cannot be bound down even
by self-created rules’. Summing up its findings in
paragraph 10 at page 1249, this Court observed:
“We regard it as fair that until fresh rules are
made in keeping with the experience gathered,
current social conditions and accepted penological
thinking-a desirable step, in our view-the present
remissions and release schemes may usefully be
taken as guidelines under ARticles 72/161 and
orders for release passed. We cannot fault the
Government, if in some intractably savage
delinquents, section
881
433A is itself treated as a guideline for exercise
of Articles 72/161. These observations of ours are
recommendatory to avoid a hiatus, but it is for
Government, Central or State, to decide whether and
why the current Remission Rules should not survive
until replaced by a more wholesome scheme.”
It will be obvious from the above that the observations were
purely recommendatory in nature.
In Kehar Singh’s case on the question of laying down
guidelines for the exercise of power under Article 72 of the
Constitution this Court observed in paragraph 16 as under:
“It seems to us that there is sufficient indication
in the terms of Article 72 and in the history of
the power enshrined in that provision as well as
existing case-law, and specific guidelines need not
be spelled out. Indeed, it may not be possible to
lay down any precise, clearly defined and
sufficiently channelised guidelines, for we must
remember that the power under Article 72 is of the
widest amplitude, can contemplate a myriad kind of
and categories of cases with facts and situations
varying from case to case, in which the merits and
reasons of State may be profoundly assisted by
prevailing occasion and passing time. And it is of
great significance that the function itself enjoys
high status in the constitutional scheme.”
These observations do indicate that the Constitution Bench
which decided Kehar Singh’s case was of the view that the
language of Article 72 itself provided sufficient
guidelines for the exercise of power and having regard to
its wide amplitude and the status of the function to be
discharged thereunder, it was perhaps unnecessary to spell
out specific guidelines since such guidelines may not be
able to conceive of all myraid kinds and categories of cases
which may come up for the exercise of such power. No doubt
in Maru Ram’s case the Constitution Bench did recommend the
framing of guidelines for the exercise of power under
Articles 72/161 of the Constitution. But that was a mere
recommendation and not a ratio decidendi having a binding
effect on the Constitution Bench which decided Kehar Singh’s
case. Therefore, the observation made by the Constitution
Bench in Kehar Singh’s case does not upturn any ratio laid
down in Maru Ram’s case. Nor has the Bench in Kehar Singh’s
case said anything with regard to using the
882
provisions of extent Remission Rules as guidelines for the
exercise of the clemency powers.
It is true that Articles 72/161 make use of two
expressions `remissions’ with regard to punishment and
`remit’ in relation to sentence but we do not think it
proper to express any opinion as to the content and
amplitude of these two expressions in the abstract in the
absence of a fact-situation. We, therefore, express no
opinion on this question formulated by the learned counsel
for the petitioner.
Lastly the learned counsel for the petitioner raised a
hypothetical question whether it was permissible in law to
grant conditional premature release to a life convict even
before completion of 14 years of actual imprisonment, which
release would tantamount to the prisoner serving time for
the purpose of section 433A of the Code? It is difficult
and indeed not advisable to answer such a hypothetical
question without being fully aware of the nature of
conditions imposed for release. We can do no better than
quote the following observations made at page 1247 in Maru
Ram’s case:
“……..the expression `prison’ and `imprisonment’
must receive a wider connotation and include any
place notified as such for detention purposes.
`Stone-walls and iron bars do not a prison-make’:
nor are `stone walls and iron bars’ a sine qua non
to make a jail. Open jails are capital instances.
any life under the control of the State whether
within high-walled or not may be a prison if the
law regards it as such. House detentions, for
example, Palaces, where Gandhiji was detained were
prisons. Restraint on freedom under the prison law
is the test. Licencsed where instant re-capture is
sanctioned by the law and likewise parole, where
the parole is not free agent, and other categories
under the invisible fetters of the prison law may
legitimately be regarded as imprisonment. This
point is necessary to be cleared even for
computation of 14 years under section 433A.
Therefore, in each case, the question whether the grant of
conditional premature release answers the test laid down by
this Court in the afore-quoted passage, would depend on the
nature of the conditions imposed and the circumstances in
which the order is passed and is to be executed. No general
observation can be made and we make none.
883
In paragraph 10 of the memorandum of the Writ
petition., three reasons have been assigned for invoking
this Court’s jurisdiction under Article 32 of the
Constitution, viz., (i) the questions involved in this
petition will affect the right of a large body of life
convicts seeking premature release; (ii) this Court’s
judgment in Bhagirath’s case deviated from the ratio laid
down in Godse’s case and, therefore, the entire law of
remissions needed a review; and (iii) the High Court of
Rajasthan had refused to examine the merits of the various
important questions of law raised before it. It is on
account of the fact that this petition was in the nature of
a representative petition touching the rights of a large
number of convicts of the categories referred to in section
433A of the Code, that we have dealt with the various
questions of law in extenso. Otherwise the petition could
have been disposed of on the narrow ground that even though
in view of sections 433A of the Code, premature release
could not be ordered under sections 432/433 of the Code read
with the 1958 Rules until the petitioner had completed 14
years of actual imprisonment, his release could be
considered in exercise of powers under Articles 72/161 of
the Constitution treating the 1958 Rules guidelines, if
necessary.
The relief claimed in the petition is two-fold, namely,
(a) to grant a mandamus to the appropriate Government for
the premature release of the petitioner by exercising
constitutional power with the aid of 1958 Rules and (b) to
declare the petitioner’s continued detention as illegal and
void. The petitioner has not completed 14 years of actual
incarceration and as such he cannot invoke sections 432 and
433 of the Code. His continued detention is consistent with
section 433A of the Code and there is nothing on record to
show that it is otherwise illegal and void. The outcome of
his clemency application under the constitution is not put
in issue in the present proceedings if it has been rejected
and if the same is pending despite the directive of the High
Court it would be open to the petitioner to approach the
High Court for the compliance of its order. Under the
circumstance no mandamus can issue. The writ petition must,
therefore, fail. It is hereby dismissed. Rule discharged.
G.N. Petition dismissed.
884
