{"id":146132,"date":"2007-09-14T00:00:00","date_gmt":"2007-09-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/c-a-pious-vs-the-state-of-kerala-and-anr-on-14-september-2007"},"modified":"2015-01-28T18:38:38","modified_gmt":"2015-01-28T13:08:38","slug":"c-a-pious-vs-the-state-of-kerala-and-anr-on-14-september-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/c-a-pious-vs-the-state-of-kerala-and-anr-on-14-september-2007","title":{"rendered":"C.A. Pious vs The State Of Kerala And Anr on 14 September, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
C.A. Pious vs The State Of Kerala And Anr on 14 September, 2007<\/div>\n
Author: . A Pasayat<\/div>\n
Bench: Dr. Arijit Pasayat, D.K. Jain<\/div>\n
           CASE NO.:\nAppeal (crl.)  1222 of 2007\n\nPETITIONER:\nC.A. Pious\n\nRESPONDENT:\nThe State of Kerala and Anr\n\nDATE OF JUDGMENT: 14\/09\/2007\n\nBENCH:\nDr. ARIJIT PASAYAT & D.K. JAIN\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. ARIJIT PASAYAT, J.\n<\/p>\n
1.\tLeave granted.\n<\/p>\n
2.\tChallenge in this appeal is to the order passed by a
\nDivision Bench of the Kerala High Court dismissing the writ
\nappeal filed by the appellant.\n<\/p>\n
3.\tBackground facts in a nutshell are as follows:\n<\/p>\n
The appellant is suffering life imprisonment in Central Jail,
\nKannur in view of the conviction for offence punishable under
\nSection 302 of the Indian Penal Code, 1860 (in short the ‘IPC’).
\nHe made a claim before the State Government that the Kerala
\nPrison Rules, 1958 (in short ‘Rules’) provide for release on
\nprobation on completion of 8 years of custody.  According to
\nhim the period of study leave amounting to 6 years 10 months
\nand 13 days have to be reckoned while computing the period
\nof sentence undergone.  The prayer was rejected on the ground
\nthat the writ petitioner had not suffered 8 years of custodial
\nsentence and, in fact, he had undergone imprisonment for 6
\nyears, 3 months and 25 days to which the remand period of 1
\nmonth and 17 days is to be added making a total of 6 years 5
\nmonths and 10 days.  The High Court found substance in the
\nstand of the State Government with reference to Rule 225(2)
\nthat the writ petitioner was not entitled to any relief.  A writ
\nappeal was filed before the High Court.  The Division Bench by
\nthe impugned order held that the case of the writ petitioner
\ncould not have been placed before the committee as he has not
\nsuffered mandatory period of 8 years of sentence.\n<\/p>\n
4.\tLearned counsel for the appellant submitted that the
\nperiod of study has to be reckoned.  Reference is made to Rule\n<\/p>\n
461.  Learned counsel for the State on the other hand
\nsupported the order of the High Court.\n<\/p>\n
5.\tRule 280-A provides for suspension of sentence as
\nempowered under Section 432 (6) of the Code of  Criminal
\nProcedure, 1973 (in short ‘Cr.P.C.’) for the period of leave for
\nthe purpose of study. The special rules framed also is
\ncaptioned as “RULES FOR SUSPENSION OF SENTENCE OF
\nPRISONERS FOR THE PURPOSE OF STUDY”. On the other
\nhand, Chapter 26 of the Rules with respect to leave specifies
\nonly two kinds of leave i.e. emergency and ordinary. The above
\nrules do not contemplate suspension of sentence and it can
\nalso be seen from the same that the maximum period of
\nemergency leave at a stretch is only for a period of 15 days and
\nthe ordinary leave up to a maximum of 30 days at a time vide
\nRule 453. Rule 452B also provides that a prisoner once
\nreleased on leave of any kind will not be eligible for a
\nsubsequent release on leave until the completion of six months
\nof actual imprisonment to be counted from the date of his last
\nreturn from leave. Emergency leave in Rule 455 is an
\nexception to this as the same is confined to 15 days as noted
\nabove and the grounds are death or serious illness of a near
\nrelative. On the other hand, during the period of study leave,
\nthe sentence stands suspended. The result of suspension of
\nsentence as per Rule 225(2) is that the same is excluded from
\nthe period of sentence undergone.  Ipsissima verba  Rule 225
\nis as follows:\n<\/p>\n
“225. Procedure when sentence is suspended.
\n(1) When an appellate court directs that the
\nexecution of sentence or order appealed
\nagainst be suspended the appellant shall, if
\ndetained in jail pending the further orders of
\nsuch Appellate Court, be treated in all respects
\nas an under trial prisoner”.\n<\/p>\n
(2) Should the appellant be ultimately
\nsentenced to imprisonment the period during
\nwhich the original sentence was suspended
\nshall (a) if passed in jail, be included, and (b) if
\npassed out of Jail, be excluded in computing
\nthe term for which he is sentenced by the
\nAppellate Court”.\n<\/p>\n
6.\tRule 225 (2) makes the position very much explicit. Rule
\n461 i.e. the provision for treatment of the period of leave as the
\nsentence undergone cannot be made applicable to the study
\nleave period. The same is abundantly clear from the fact that
\nat the time of commencement of study leave, the sentence
\nstands suspended whereas for the emergency leave or ordinary
\nleave, the above suspension is not contemplated under
\nChapter 26 of the Rules. It is also seen from the concerned
\nRules as noted above, i.e. Rule 453 that the period of
\nemergency and ordinary leave are confined to a short period
\nand the same is not granted continuously and also that a gap
\nof six months is contemplated as per Rule 452(B) for further
\nrelease of a prisoner granting ordinary leave. Emergency leave
\nas already noted vide Rule 455 is limited to extreme situations
\nlike death or serious illness. But so far as study leave is
\nconcerned, it is seen that the same is granted somewhat
\nliberally. The appellant himself was outside the prison for
\nmore than six years. He was outside the prison more than the
\nperiod he spent inside.\n<\/p>\n
7.\tIt appears that the Government of Kerala had constituted
\na High Level Committee on the basis of the order passed in
\nsuo motu proceedings which was initiated as in several
\ninstances several convicts sentenced for serious offences were
\nreleased after undergoing short terms imprisonment.
\nGuidelines were framed by the Committee which were
\npromulgated by G.O.(P) 228\/03\/Home dated 18.10.2003.  In
\npara 3 of the guidelines of the State Government order, it is as
\nfollows:\n<\/p>\n
“The Committee will recommend premature
\nrelease of life convicts who have completed 8
\nyears of actual imprisonment including set off
\nif any ordered by a competent court and
\nexcluding remission of any kind considering
\nthe nature of offence committed by the
\nprisoners, nature of the crime, possible effects
\non the community, their conduct in a prison
\nand in whose cases the committee feels that
\npremature release would help in their social
\nreformation and rehabilitation”.\n<\/p>\n
8.\tStand of the appellant is clearly unsustainable.  In view
\nof the clear position emitting from Rule 225, the High Court’s
\njudgment does not suffer from any infirmity that, to be entitled
\nto benefit convict has to suffer at least 8 years of custody.\n<\/p>\n
9.\tIn Maru Ram v. Union of India and Ors. (1981 (1) SCC\n<\/p>\n
107) it was inter-alia held as follows:\n<\/p>\n
“28. Neither argument has force. The first one
\nfails because Section 302, IPC (or other like
\noffence) fixes the sentence to be life
\nimprisonment. 14 years’ duration is never
\nheavier than life term. The second submission
\nfails because a remission, in the case of life
\nimprisonment, ripens into a reduction of
\nsentence of the entire balance only when a
\nfinal release order is made. Godse is too
\nemphatic and unmincing to admit of a
\ndifferent conclusion. The haunting distance of
\ndeath which is the terminus ad quem of life
\nimprisonment makes deduction based on
\nremission indefinite enough not to fix the date
\nwith certitude. Thus, even if remissions are
\ngiven full faith and credit, the date of release
\nmay not come to pass unless all the unexpired,
\nuncertain balance is remitted by a government
\norder under Section 432. If this is not done,
\nthe prisoner will continue in custody. We
\nassume here that the constitutional power is
\nkept sheathed.\n<\/p>\n
29. Let us assume for the sake of argument
\nthat remissions have been earned by the
\nprisoner. In Murphy v. Commonwealth (172
\nMass 264) referred to by Cooley and cited
\nbefore us (infra), it has been held that earned
\nremissions may not be taken away by
\nsubsequent legislation. May be, direct effect of
\nsuch a privative measure may well cast a
\nheavier penalty. We need not investigate this
\nposition here.\n<\/p>\n
30. A possible confusion creeps into this
\ndiscussion by equating life imprisonment with
\n20 years’ imprisonment. Reliance is placed for
\nthis purpose on Section 55, IPC and on
\ndefinitions in various Remission Schemes. All
\nthat we need say, as clearly pointed out in
\nGodse is that these equivalents are meant for
\nthe limited objective of computation to help the
\nState exercise its wide powers of total
\nremissions. Even if the remissions earned have
\ntotalled up to 20 years, still the State
\nGovernment may or may not release the
\nprisoner and until such a release order
\nremitting the remaining part of the life
\nsentence is passed, the prisoner cannot claim
\nhis liberty. The reason is that life sentence is
\nnothing less than lifelong imprisonment.
\nMoreover, the penalty then and now is the
\nsame  life term. And remission vests no right
\nto release when the sentence is life
\nimprisonment. No greater punishment is
\ninflicted by Section 433-A than the law
\nannexed originally to the crime. Nor is any
\nvested right to remission cancelled by
\ncompulsory l4-year jail life once we realise the
\ntruism that a life sentence is a sentence for a
\nwhole life (see Sambha Ji Krishan Ji v. State of
\nMaharashtra (AIR<\/a> 1974 SC 147) and State of
\nM. P. v. Ratan Singh (1976 Supp SCR 552).\n<\/p>\n
31. Maybe, a difference may exist in cases of
\nfixed term sentences. Cooley lends support :\n<\/p>\n
Privilege existing at time of
\ncommission of offence (e.g. privilege
\nof earning a shortening of sentence
\nby good behaviour) cannot be taken
\naway by subsequent statute.\n<\/p>\n
\t\txxx\t\t\txxx\t\t\txxx\n<\/p>\n
72. We conclude by formulating our findings:\n<\/p>\n
(1) We repulse all the thrusts on the vires of
\nSection 433-A. Maybe, penologically the
\nprolonged term prescribed by the section is
\nsupererogative. If we had our druthers we
\nwould have negatived the need for a fourteen-
\nyear gestation for reformation. But ours is to
\nconstrue, not construct, to decode, not to
\nmake a code.\n<\/p>\n
(2) We affirm the current supremacy of Section
\n433-A over the Remission Rules and short-
\nsentencing statutes made by the various
\nStates.\n<\/p>\n
(3) We uphold all remissions and short-
\nsentencing passed under Articles 72 and 161
\nof the Constitution but release will follow, in
\nlife sentence cases, only on government
\nmaking in order en masse or individually, in
\nthat behalf.\n<\/p>\n
 (4) We hold that Section 432 and Section 433
\nare not a manifestation of Articles 72 and 161
\nof the Constitution but a separate, though
\nsimilar power, and Section 433-A, by nullifying
\nwholly or partially these prior  provisions does
\nnot violate or detract from the full operation of
\nthe constitutional   power to pardon, commute
\nand the like.\n<\/p>\n
(5) We negate the plea that Section 433-A
\ncontravenes Article 20(1) of the Constitution.\n<\/p>\n
(6) We follow Gopal Vinayak Godse  v. State of
\nMaharashtra<\/a> (1961 (3) SCR 440) to hold that
\nimprisonment for life lasts until the last
\nbreath, and whatever the length of remissions
\nearned, the prisoner can claim release only if
\nthe remaining sentence is remitted by
\ngovernment.\n<\/p>\n
(7) We declare that Section 433-A, in both its
\nlimbs (i.e. both types of life imprisonment
\nspecified in it), is prospective in effect. To put
\nthe position beyond doubt, we direct that the
\nmandatory minimum of 14 years’ actual
\nimprisonment will not operate against those
\nwhose cases were decided by the trial Court
\nbefore December 18, 1978 when Section 433-A
\ncame into force. All ‘Lifers’ whose conviction by
\nthe court of first instance was entered prior to
\nthat date are entitled to consideration by
\ngovernment for release on the strength of
\nearned remissions although a release can take
\nplace only if government makes an order to
\nthat effect. To this extent the battle of the
\ntenses is won by the prisoners. It follows, by
\nthe same logic, that short. sentencing
\nlegislations, if any, will entitle a prisoner to
\nclaim release there under if his conviction by
\nthe court of first instance was before Section
\n433-A was brought into effect.\n<\/p>\n
(8) The power under Articles 72 and 161 of the
\nConstitution can be exercised by the Central
\nand State Governments, not by the President
\nor Governor on their own. The advice of the
\nappropriate Government binds the Head of the
\nState. No separate order for each individual
\ncase is necessary but any general order made
\nmust be clear enough to identify the group of
\ncases and indicate the application of mind to
\nthe whole group.\n<\/p>\n
(9) Considerations for exercise of power under
\nArticles 72\/161 may be myriad and their
\noccasions protean, and are left to the
\nappropriate Government, but no consideration
\nnor occasion can be wholly irrelevant,
\nirrational, discriminatory or mala fide. Only in
\nthese rare cases will the court examine the
\nexercise.\n<\/p>\n
(10) Although the remission rules or short-
\nsentencing provisions proprio vigore may not
\napply as against Section 433-A, they will
\noverride Section 433-A if the government,
\nCentral or State, guides itself by the self-same
\nrules or schemes in the exercise of its
\nconstitutional power. We regard it as fair that
\nuntil fresh rules are made in keeping with
\nexperience gathered, current social conditions
\nand accepted penological thinking- a desirable
\nstep, in our view- the present remission and
\nrelease schemes may usefully be taken as
\nguide-lines under Articles 72\/161 and orders
\nfor release passed. We cannot fault the
\ngovernment, if in some intractably savage
\ndelinquents, Section 433-A is itself treated as a
\nguide-line for exercise of Articles 72\/161.
\nThese observations of ours are
\nrecommendatory to avoid a hiatus, but it is for
\nGovernment, Central or State, to decide
\nwhether and why the current Remission Rules
\nshould not survive until replaced by a more
\nwholesome scheme.\n<\/p>\n
(11) The U.P. Prisoners’ Release on Probation
\nAct, 1938, enabling limited enlargement under
\nlicence will be effective as legislatively
\nsanctioned imprisonment of a loose and liberal
\ntype and such licensed enlargement will be
\nreckoned for the purpose of the 14-year
\nduration. Similar other statutes and rules will
\nenjoy similar efficacy.\n<\/p>\n
(12) In our view, penal humanitarianism and
\nrehabilitative desideratum warrant liberal
\nparoles, subject to security safeguards, and
\nother humanizing strategies for inmates so
\nthat the dignity and worth of the human
\nperson are not desecrated by making mass
\njails anthropoid zoos. Human rights awareness
\nmust infuse institutional reform and search for
\nalternatives.\n<\/p>\n
(13) We have declared the law all right, but
\nlaw-in-action fulfils itself not by declaration
\nalone and needs the wings of communication
\nto the target community. So, the further
\ndirection goes from this Court that the last
\ndecretal part is translated and kept
\nprominently in each ward and the whole
\njudgment, in the language of the State, made
\navailable to the inmates in the jail library.\n<\/p>\n
(14) Section 433-A does not forbid parole or
\nother release within the 14-year span. So to
\ninterpret the section as to intensify inner
\ntension and intermissions of freedom is to do
\nviolence to language and liberty.”\n<\/p>\n
10.\tAs and when the appellant suffers actual custody of more
\nthan 8 years, let his case be considered in accordance with law
\nby the concerned authorities.\n<\/p>\n
11.\tWe make it clear that we have not expressed any opinion
\nin the acceptability of the plea of the appellant while
\nconsidering the case of the appellant. The parameters and
\nrequirements have to be kept in view while considering the
\ncase.\n<\/p>\n
12.\tThe appeal is dismissed with the aforesaid observations.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India C.A. Pious vs The State Of Kerala And Anr on 14 September, 2007 Author: . A Pasayat Bench: Dr. Arijit Pasayat, D.K. Jain CASE NO.: Appeal (crl.) 1222 of 2007 PETITIONER: C.A. Pious RESPONDENT: The State of Kerala and Anr DATE OF JUDGMENT: 14\/09\/2007 BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-146132","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nC.A. 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