{"id":228618,"date":"1991-07-10T00:00:00","date_gmt":"1991-07-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-alias-golu-vs-union-of-india-and-ors-on-10-july-1991"},"modified":"2018-04-15T10:50:57","modified_gmt":"2018-04-15T05:20:57","slug":"ashok-kumar-alias-golu-vs-union-of-india-and-ors-on-10-july-1991","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-alias-golu-vs-union-of-india-and-ors-on-10-july-1991","title":{"rendered":"Ashok Kumar Alias Golu vs Union Of India And Ors on 10 July, 1991"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ashok Kumar Alias Golu vs Union Of India And Ors on 10 July, 1991<\/div>\n
Equivalent citations: 1991 SCR (2) 858, \t 1991 SCC (3) 498<\/div>\n
Author: Ahmadi<\/div>\n
Bench: Ahmadi, A.M. (J)<\/div>\n
           PETITIONER:\nASHOK KUMAR ALIAS GOLU\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT10\/07\/1991\n\nBENCH:\nAHMADI, A.M. (J)\nBENCH:\nAHMADI, A.M. (J)\nSAWANT, P.B.\nAGRAWAL, S.C. (J)\n\nCITATION:\n 1991 SCR  (2) 858\t  1991 SCC  (3) 498\n JT 1991 (3)\t46\t  1991 SCALE  (2)17\n\n\nACT:\n     Constitution of India, 1950: Articles 14 and 21, 245  &\n246-Insertion\tof  S.\t433A  into  the\t Code  of   Criminal\nProcedure,  1973-Validity of-Colourable legislation  fraud-\nMeaning of-Doctrine of pith and substance-Applicability of.\n     Articles 72, 161: Clemency-Powers of-Sections 54 and 55\nIPC-Section 433A Cr. P.C. and provisions of Remission Rules-\nWhether subject to the overriding powers of clemency.\n     Indian  Penal Code, 1860: Sections 45, 54, 55  and\t 57-\nFixing\tterms  of  imprisonment-`Life  imprisonment'-Whether\nimprisonment for full span of life.\n     Sections  54  and\t55: Whether  subject  to  overriding\npowers of Articles 72\/161 of the Constitution of India.\n     Criminal  Procedure Code, 1973: Section  433A-Insertion\nof-Whether a colourable legislation-Constitutional  validity\nof-IPC\t(Amendment)  bill  not passed  by  Lok\tSabha  while\npassing\t Cr. P.C. (Amendment) Bill-Government claiming\tthat\nboth  the  bills were interlinked-Effect on  the  Amendment\nBill  passed, inserting S. 433A-Prisoners covered under\t the\nSection-Prisoners who were sentenced to death by Courts, but\nwhose  sentence commuted to life imprisonment  by  executive\nclemency-Whether forms a distinct and separate class.\n     Sections 432, 433 and 433A: Release of prisoners  under\nRemission  Rules-Remittance  of sentence-Exercise  of  power\nunder sections 432 and 433-Whether restricted by S.433A.\n     Rajasthan\tPrisons\t (Shortening  of  Sentences)  Rules,\n1950:  Premature  release of  Prisoners-Whether\t subject  to\noverriding powers of Sections 432, 433 and 433A Cr. P.C. and\nArticles 72\/161 of the Constitution of India, 1950.\n     Statutory\tConstruction:  External\t aid-Language  of  a\nprovision\n\t\t\t\t\t\t       859\nplain and clear-Reading down the same with the aid of a Bill\nwhich had not become an enactment-Whether could be  resorted\nto.\n\n\n\nHEADNOTE:\n     The  petitioner was convicted for murder and  sentenced\nto life imprisonment, which was confirmed by the High Court.\nLater  he  filed a Writ Petition before the High  Court\t for\npremature  release  on the plea that he was entitled  to  be\nconsidered   for   release  under  the\t Rajasthan   Prisons\n(Shortening  of Sentences) Rules, 1958\tnotwithstanding\t the\ninsertion of Section 433A in the Code of Criminal Procedure,\n1973  with effect from 18.12.1978, just two days before\t his\nconviction.   It  was contended that Section 433A  Cr.\tP.C.\nwhich  places  an embargo of 14\t years\timprisonment  before\npremature release could not curtail the constitutional power\nvested\tin  the\t Governor by virtue of Article\t161  of\t the\nConstitution.\tThe High Court, dismissed the Writ  Petition\non  the ground that the petitioner's representations to\t the\nGovernment   and   State   Home\t  Minister   were    pending\nconsideration.\t However, the High Court directed  that\t the\ntwo representations of the petitioner should be disposed  of\nwithin one month.\n     Unable  to\t secure his release from the High  Court  as\nalso  from  the State Government, the petitioner  filed\t the\npresent\t Write Petition before this Court,  contending\tthat\nthe  insertion\tof  Section 433A in  the  Code\tof  Criminal\nProcedure  was\tinvalid; that in the absence  of  guidelines\nunder  Arts. 72\/161 of Constitution, Section 433A  Cr.\tP.C.\ncould not apply to life convicts; that the Rajasthan Prisons\n(Shortening  of\t Sentences) Rules, 1958 would  prevail\tover\nSection 433A Cr. P.C., and that the constitutional guarantee\nunder Articles 14 and 21 was violated.\n     Dismissing the Writ Petition, this Court\n     HELD:  1.1. It is only when a legislature which has  no\npower  to legislate frames a legislation so camouflaging  it\nas to appear to be within its competence when it knows it is\nnot,  it  can  be said that the legislation  so\t enacted  is\ncolourable  legislation.   If  in  pith\t and  substance\t the\nlegislation  does not belong to the subject  falling  within\nthe limits of its power but is outside it, the mere form  of\nthe  legislation will not be determinate of the\t legislative\ncompetence. [871C; 872C]\n     1.2.  It is not a case of legislative  incompetence  to\nenact\tsection\t 433A.\t No  such  contention  was   raised.\nBesides\t the question of vires of section 433A of  the\tCode\nhas been determined by the Constitution Bench of this  Court\nin  Maru  Ram's case.  This Court Repelled all\tthe  thrusts\naimed at challenging the constitutional validity of  section\n433A. [871A]\n\t\t\t\t\t\t       860\n     1.3. It is no body's contention that Parliament was not\ncompetent  to  amend the Criminal Procedure  Code  by  which\nsection\t 433A was inserted.  Whether or not  the  connecting\nIndian Penal Code (Amendment)  Bill ought to have cleared or\nnot was matter left to the wisdom of the Lok Sabha.   Merely\nbecause\t the  Criminal Procedure Bill was made law  and\t the\nIndian\tPenal Code (Amendment) Bill was passed by the  Rajya\nSabha  did not obligate the Lok Sabha to clear it.  The\t Lok\nSabha could have its own views on the proposed Indian  Penal\nCode  amendments.  It may agree with the executive's  policy\nreflected in the Bill, with or without modifications, or not\nat  all.   Merely  because in  the  subsequent\tinstructions\nissued\tby the letter of July 10, 1979 and the\taccompanying\nnote, the Joint-Secretary had interlinked the two Bills, the\nLok  Sabha was under no obligation to adopt the\t measure  as\nsuch  representation could not operate as  estoppel  against\nit.   It  is obvious that no question of mala fides  on\t the\npart of the legislature was involved in the enactment of one\nlegislation  and  failure  to enact another.   There  is  no\nquestion of `legislative fraud' or `colourbale\tlegislation'\ninvolved  in  the backdrop of the  legislative\t history  of\nsection\t 433A  of the Code of Criminal\tProcedure.  [872D-H;\n873A]\n     1.4.  In the present case if both the Bills had  become\nlaw, then in understanding or construing one legislation  or\nthe  other, the scheme common to both would be kept in\tview\nand  be permitted to interact.\tBut where the  linkage\tdoes\nnot  exist on account of the Indian Penal  Code\t (Amendment)\nBill  not  having  become law, section 433A cannot  be\tread\ndown  to apply to only those classes of capital offences  to\nwhich it would have applied had the said Bill been passed by\nthe Lok Sabha in the terms  in which it was approved by\t the\nRajya  Sabha.  The  language of section 433A  is  clear\t and\nunambiguous  and  does not call for extrinsic  aid  for\t its\ninterpretation.\t  To read down or interpret section 433A  of\nthe Code with the aid of the changes proposed by the  Indian\nPenal Code (Amendment) Bill would tantamount to treating the\nsaid  Bills forming part of the Indian Penal Code, which  is\nclearly\t impermissible.\t To put such an interpretation\twith\nthe aid of such extrinsic material would result in  violence\nto the plain language of section 433A of the Code. [873D-F]\n     Maru  Ram\tv.  Union  of  India,  [1981]  1  SCR  1196,\nfollowed.\n     K.C.  Gajapati Narayan Deo v. State of  Orissa,  [1954]\nSCR 1 and Sonapur Tea Co. Ltd.\tv. Must Mariruznessa,<\/a> [1962]\n1 SCR 724, relied on.\n\t\t\t\t\t\t       861\n     State  of Himachal Pradesh v. A Parent of<\/a> a student  of\nMedical\t College, Simla, [1985] 3 SCC 169 and W.R. Moram  v.\nDeputy\tCommissioner of Taxation for N.S.W., [1940] AC\t838,\nreferred to.\n     2.1.  The\tlaw  governing\tsuspension,  remission\t and\ncommutation    of   sentence   is   both    statutory\t and\nconstitutional.\t  The stage for the exercise of\t this  power\ngenerally   speaking  is  post-judicial,  i.e.,\t after\t the\njudicial process has come to an end.  The duty to judge\t and\nto award appropriate punishment to the guilty is a  judicial\nfunction  which\t culminates  by\t a  judgment  pronounced  in\naccordance with law.  After the judicial function thus\tends\nthe  executive\tfunction of giving effect  to  the  judicial\nverdict commences. [873G-H; 874A]\n     2.2.  One who could have been visited with the  extreme\npunishment  of\tdeath  but  on\taccount\t of  the  sentencing\ncourt's generosity was sentenced to the lesser punishment of\nimprisonment for life and another who actually was sentenced\nto  death  but\ton  account  of\t executive   generosity\t his\nsentence was commuted under section 433(a) for\timprisonment\nfor  life have been treated under section 433A as  belonging\nto that class of prisoners who do not deserve to be released\nunless\t they\thave   completed   14\tYears\t of   actual\nincarceration.\t Thus,\tthe  effect of section\t433A  is  to\nrestrict the exercise of power under sections 432 and 433 by\nthe  stipulation that the power will not be so exercised  as\nwould  enable the two categories of convicts referred to  in\nsection 433A to freedom before they have completed 14  years\nof  actual  imprisonment.  This is  the\t legislative  policy\nwhich  is  clearly discernible from the\t plain\tlanguage  of\nsection\t 433A  of  the Code.  Such  prisoners  constitute  a\nsingle\tclass  and have, therefore, been  subjected  to\t the\nuniform\t requirement  of  suffering  atleast  14  years\t  of\ninternment. [874G-H; 875A-C]\n     3.\t The expression `life imprisonment' must be read  in\nthe context of section 45 IPC.\tRead so, it would ordinarily\nmean  imprisonment  for the full or complete span  of  life.\nSection\t 65, 116, 120 and 511 of the Indian Penal  Code\t fix\nthe  term  of imprisonment thereunder as a fraction  of\t the\nmaximum\t fixed\tfor the principal offence.  It\tis  for\t the\npurpose\t of  working  out  this\t fraction  that\t it   became\nnecessary to provide under section 57 that imprisonment\t for\nlife shall be reckoned as equivalent to imprisonment for  20\nyears.\tIf such a provision had not been made it would\thave\nbeen  impossible to work out the fraction of  an  indefinite\nterm.\tIn  order  to  work out the  fraction  of  terms  of\npunishment provided in the above sections it was  imperative\nto  lay\t down  the equivalent term  for\t life  imprisonment.\n[875G; 876C-E]\n\t\t\t\t\t\t       862\n     Gopal Goads v. State of Maharashtra,<\/a> [1961] 3 SCR\t440;\naffirmed.\n     4.1  Unless  the  sentence\t for  life  imprisonment  is\ncommuted or remitted by the appropriate authority under\t the\nprovisions of the relevant law, a convict is bound in law to\nserve the entire life term in prison; the rules framed under\nthe  Prisons Act or life statute may enable such  a  convict\nto earn remissions but such remissions will not entitle\t him\nto release before he has completed 14 years of incarceration\nin  view of section 433A of the Code unless of course  power\nhas been exercised under Article 72\/161 of the Constitution.\nWhere  a person has been sentenced to imprisonment for\tlife\nthe remissions earned by him during his internment in prison\nunder the relevant remission rules have a limited scope\t and\nmust  be confined to the scope and ambit of the\t said  rules\nand  do\t not  acquire significance  until  the\tsentence  is\nremitted  under\t section 432, in which\tcase  the  remission\nwould be subject to limitation of section 433A of the  Code,\nor  constitutional power has been exercised  under  Articles\n72\/161 of the Constitution. [878D-E]\n     4.2.  Articles 72 and 161 confer the clemency power  of\npardon,\t etc.,\ton the President and  the  State  Governors,\nrespectively.  This constitutional power would override\t the\nstatutory  power contained in sections 432 and 433  and\t the\nlimitation of section 433A of the Code as well as the  power\nconferred  by sections 54 and 55 IPC. No doubt,\t this  power\nhas to be exercised by the President\/Governor on the  advice\nof his Council of Ministers. [880A-B]\n     4.3. Though in Maru Ram's case, this Court\t recommended\nthe  framing of guidelines for the exercise of\tpower  under\nArticles  72\/161  of the Constitution of India,\t it  had  no\nbinding effect on the Constitution Bench which decided Kehar\nSingh's\t case.\t Nor has this Court said anything  in  Kehar\nSingh's\t case with regard to using the provisions of  extent\nRemission  Rules as guidelines for the exercise of  clemency\npowers.\t [881H; 882A]\n     Maru  Ram v. Union of India, [1981] 1 SCR\t1196;  Kehar\nSingh  v.  Union of India, [1989] 1 SCC\t 204;  Bhagirath  v.\nDelhi  Administration,<\/a> [1985] 3 SCR 743 and Gopal  Godse  v.\nState of Maharashtra,<\/a> [1961] 3 SCR 440, affirmed.\n     5.\t It  is true that Articles 72\/161 make\tuse  of\t two\nexpressions  `remissions'  with\t regard\t to  punishment\t and\n`remit'\t in  relation to sentence but it is  not  proper  to\nexpress any opinion as to the content and amplitude of these\ntwo  expressions in the abstract, in the absence of a  fact-\nsituation. [882B]\n\t\t\t\t\t\t       863\n     6.1   The\t hypothetical  question\t  whether   it\t was\npermissible in law to grant conditional premature release to\na life convict even before\ncompletion of 14 years of actual imprisonment, which release\nwould  tantamount  to the  prisoner  serving  time  for\t the\npurpose\t of  section  433A Cr. P.C., need  not\tbe  answered\nwithout\t being\tfully aware of the  conditions\timposed\t for\nrelease.   In each case, the question whether  the grant  of\nconditional premature release answers the test laid down  by\nthis Court in Maru Ram's case, would depend on the nature of\nthe  conditions imposed and the circumstances in  which\t the\norder  is  passed  and\tis  to\tbe  executed.\tNo   general\nobservation can be made. [882C-H]\n     Maru Ram v. Union of India, [1981] 1 SCR 1196; referred\nto.\n     7. In the instant case, petitioner has not completed 14\nyears  of actual incarceration and as such he cannot  invoke\nsections 43 and 433 of the Code of Criminal Procedure.\t His\ncontinued  detention is consistent with section 433A of\t the\nCode  and  there  is nothing on record to show\tthat  it  is\notherwise  illegal  and void.  The outcome of  his  clemency\napplication  under the Constitution is not put in  issue  in\nthe present proceedings if it has been rejected, and if\t the\nsame  is pending despite the directive of the High Court  it\nwould  be open to the petitioner to approach the High  Court\nfor the compliance of its order. [883E-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
     ORIGINAL  JURISDICTION: Writ (Crl.) Petition No. 96  of
\n1989.\n<\/p>\n
     (Under Article 32 of the Constitution of India).
\n     Nand  Lal,\t S.K.  Bagga and Mrs.  S.K.  Bagga  for\t the
\nPetitioner.\n<\/p>\n
     V.C.  Mahajan  Mrs. Indra Sawhney, Ms.  A.\t Subhashini,
\nAruneshwar  Gupta,  Surya  Kant\t and   I.  Makwana  for\t the
\nRespondents.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     AHMADI,  J.  Liberty is the life line  of\tevery  human
\nbeing.\tLife without liberty is `lasting’ but not  `living’.
\nLiberty\t is, therefore, considered one of the most  precious
\nand cherished possessions of a human being.  Any attempt  to
\ntake liberties with the liberty of a human being is  visited
\nwith resistance.  Since no human being can tolerate  fetters
\non  his\t personal  liberty it is  not  surprising  that\t the
\npetitioner Ashok Kumar alias Golu continues to struggle\t for
\nhis  liberty, premature release, not fully content with\t the
\nenunciation of the law in this behalf
\n\t\t\t\t\t\t       864<\/span>
\nby  this Court in Maru Ram v. Union of India, {1981]  1\t SCR
\n1196.\n<\/p>\n
     The questions of law which are raised in this  petition
\nbrought\t under\tArticle 32 of the  Constitution\t arise\tupon
\nfacts of which we give an abridged statement.  On the  basis
\nof  a  FIR lodged on October 21, 1977,\tthe  petitioner\t was
\narrested  on  the  next day and he  along  with\t others\t was
\nchargesheeted  for  the\t murder of  one\t Prem  Nagpal.\t The
\npetitioner  was tried and convicted for murder\ton  December
\n20,  1978  in Sessions Case No. 32 of 1978  by\tthe  learned
\nSessions  Judge,  Ganganagar,  and  was\t ordered  to  suffer
\nimprisonment  for life.\t His appeal, Criminal Appeal No.  40
\nof 1979, was dismissed by the High Court of Rajasthan. Since
\nthen he is serving time.  It appears that he filed a  Habeas
\nCorpus\tWrit Petition No. 2963 of 1987 in the High Court  of
\nRajasthan at Jodhpur for premature release on the plea\tthat
\nhe was entitled to be considered for such release under\t the
\nrelevant   rules   of  Rajasthan  Prisons   (Shortening\t  of
\nSentences) Rules, 1958, (hereinafter alluded to as `the 1958
\nRules’) notwithstanding the insertion of Section 433A in the
\nCode  of Criminal Procedure, 1973 (hereinafter\tcalled\t`the
\nCode’)\twith  effect from December 18, 1978, just  two\tdays
\nbefore his conviction.\tHis grievance was that he was  being
\ndenied\tthe  benefit of early release under the\t 1958  Rules
\nunder  the  garb  of the newly added Section  433A,  on\t the
\nground\tthat  it  places a  statutory  embargo\tagainst\t the
\nrelease\t of such a convict `unless he has served atleast  14
\nyears\tof  imprisonment’.   He\t contended  that  the\tsaid
\nprovision could not curtail the constitutional power  vested
\nin the Governor by virtue of Article 161 of the Constitution
\nwhich  had to be exercised on the advice of the\t Council  of
\nMinisters  which  advice  could be based  on  a\t variety  of
\nconsiderations\tincluding the provisions of the 1958  Rules.
\nThe writ petition was, however, dismissed by the High  Court
\non  October  31, 1988, on the ground that it  was  premature
\ninasmuch as the petitioner’s two representations, one to the
\nGovernor  and  another\tto  the State  Home  Minister,\twere
\npending\t consideration.\t The High Court directed  that\tthey
\nshould be disposed of within one month.\t In this view of the
\nmatter the High Court did not deem it necessary to  consider
\nthe  various  questions\t of law raised in  the\tpetition  on
\nmerits.\t  After\t the rejection of his writ petition  by\t the
\nHigh  Court, the petitioner through his counsel addressed  a
\nletter dated November 28, 1988 to the Governor inviting\t his
\nattention  to  the earlier representation dated\t August\t 29,
\n1988 and requesting him to take a decision thereon within  a
\nmonth as observed by the High Court.  Failing to secure\t his
\nearly\trelease\t notwithstanding  the  above  efforts,\t the
\npetitioner  has\t invoked the extraordinary  jurisdiction  of
\nthis Court under Article 32 of the Constitution.\n<\/p>\n
\t\t\t\t\t\t       865<\/span><\/p>\n
     The  petitioner’s case in a nutshell is that under\t the
\nprovisions  of the 1958 Rules, a `lifer’ who has  served  an
\nactual sentence of about 9 years and 3 months is entitled to
\nbe  considered for premature release if the  total  sentence
\nincluding  remissions  works  out  to 14  years\t and  he  is
\nreported  to be of good behaviour.  However, the  petitioner
\ncontends,  his case for premature release is not  considered
\nby the concerned  authorities  in view of  the\tnewly  added
\nsection\t 433A  of  the Code on the  interpretation  that  by
\nvirtue of the said provision the case of a `lifer’ cannot be
\nconsidered  for\t early release unless he  has  completed  14
\nyears  of actual incarceration, the provisions\tof  sections
\n432  and  433  of  the\tCode  as  well\tas  the\t 1958  Rules
\nnotwithstanding.   According to him, even if the  provisions
\nof  sections 432 and 433 of the Code do not come  into\tplay
\nunless\t a  convict  sentenced\tto  life  imprisonment\t has
\ncompleted  actual incarceration for 14 years as required  by
\nsection\t 433A, the authorities have failed to  realise\tthat
\nsection\t 433A  cannot  override\t the  constitutional   power
\nconferred  by Articles 72 and 161 of the  Constitutional  on
\nthe President and the Governor, respectively, and the  State
\nGovernment i.e., the Council of Ministers, could advise\t the
\nGovernor  to exercise power under Article 161  treating\t the
\n1958 Rules as guidelines.  Since the petitioner had  already
\nmoved the Governor under Article 161 of the Constitution  it
\nwas  incumbent\ton  the State  Government  to  consider\t his
\nrequest for early release, notwithstanding section 433A, and
\nfailure\t to  do\t so entitled  the  petitioner  to  immediate
\nrelease\t as his continued detention was, wholly illegal\t and
\ninvalid.   In support of this contention the petitioner\t has
\nplaced reliance on the ratio of Maru Ram’s decision.\n<\/p>\n
     The petitioner brands section 433A of the Code to be  a
\n`legislative  fraud’ inasmuch as the said provision was\t got
\napproved  by the Parliament on the assurance that  the\tsaid
\nprovision   is\tcomplementary  to  the\tvarious\t  amendments
\nproposed in the Indian Penal Code.  In the alternative it is
\ncontended that in any case this Court should by a process of
\ninterpretation\tlimit the scope of section 433A of the\tCode
\nto those cases only to which it would have been limited\t had
\nthe  legislation  proposing amendments in the  Indian  Penal
\nCode  gone through.  In any case after the decision of\tthis
\nCourt  in Maru Ram’s case, the efficacy of section  433A  is
\nconsiderably reduced and the petitioner is entitled to early
\nrelease by virtue of the power contained in ARticle 161 read
\nwith  the 1958 Rules even if guidelines are  not  formulated
\nnotwithstanding\t the  subsequent decision of this  Court  in
\nKehar  Singh  v. Union of India, [1989] 1 SCC  204.  Counsel
\nsubmitted that after the decision of this Court in Bhagirath
\nv.  Delhi Administration,<\/a> [1985] 3 SCR 743  whereunder\tthis
\nCourt extended the benefit of section 428 of the Code even
\n\t\t\t\t\t\t       866<\/span>
\nto  life  convicts,  the ratio in Gopal Godse  v.  State  of
\nMaharashtra,<\/a>  [1961] 3 SCR 440 had undergone a\tchange.\t  On
\nthis broad approach, counsel for the petitioner,  formulated
\nquestions of law which may be stated as under:\n<\/p>\n
\t 1.  Whether  the insertion of section 433A  in\t the
\n\t Code  was  a  legislative  fraud  inasmuch  as\t the
\n\t connected  legislation,  namely, the  Indian  Penal
\n\t Code (Amendment) Bill XLII of 1972 did\t not  become
\n\t law  although passed by the Rajya Sabha as the\t IPC
\n\t (Amendment) Act, 1978, on November 23, 1978?\n<\/p>\n
\t 2. Whether on the ration of Maru Ram’s decision, in
\n\t the  absence  of any guidelines formulated  by\t the
\n\t State under Article 72 of 161 of the  Constitution,
\n\t section  433A of the Code would not apply  to\tlife
\n\t convicts  and the 1958 Rules will prevail  for\t the
\n\t purpose  of exercise of power under Article  72  of
\n\t 161 of the Constitution?\n<\/p>\n
     Inter-connected  with this question, the  following  .l
\nquestions were raised:\n<\/p>\n
\t a) Whether Maru Ram’s decision is in conflict\twith
\n\t Kehar Singh’s Judgment on the question of necessity
\n\t or  otherwise\tof guidelines for  the\texercise  of
\n\t power under Article 7 and 161 of the constitution?\n<\/p>\n
\t b)  Whether the use of two expressions\t “remission”
\n\t and  “remit”  in  Articles 72 and  161\t convey\t two
\n\t different meanings and if yes, whether the  content
\n\t f power in the two expressions is different?\n<\/p>\n
\t c) Whether the persons sentenced to death by Court,
\n\t whose\tdeath  sentence has been  commuted  to\tlife
\n\t imprisonment by executive clemency, form a distinct
\n\t and  separate class for the purpose of\t application
\n\t of  section  433A of the Code as well\tas  for\t the
\n\t purpose  of  necessity (or not) of  guidelines\t for
\n\t premature  release  in\t exercise  of  power   under
\n\t Articles  72 and 161, from the persons who  at\t the
\n\t initial   stage  itself  were\tsentenced  to\tlife
\n\t imprisonment  by court verdict? And whether in\t the
\n\t latter case guidelines are mandatory under  Article
\n\t 72 and 161 and a well designed scheme of  remission
\n\t must be formulated if the constitutional  guarantee
\n\t under Articles 14 and 21 is to be preserved?\n<\/p>\n
\t d)  Whether the whole law of remission needs to  be
\n\t reviewed after Bhagirath’s case wherein this  Court
\n\t held that imprisonment
\n\t\t\t\t\t\t       867<\/span>
\n\t for  life  is also an imprisonment for a  term\t and
\n\t that  a life convict is entitled to set  off  under
\n\t section 428 Cr. P.C.?\n<\/p>\n
\t e)  Whether  it  is permissible  in  law  to  grant
\n\t conditional  premature\t release to a  life  convict
\n\t even  before  completion  of  14  years  of  actual
\n\t imprisonment  notwithstanding section 433A  of\t the
\n\t Code? If yes, whether the grant of such conditional
\n\t release  will be treated as the  prisoner  actually
\n\t serving time for the purpose of section 433A of the
\n\t Code?\n<\/p>\n
     First the legislative history.  The Law Commission\t had
\nin  its\t 42nd  Report  submitted  in  June,  1971  suggested
\nnumerous  changes in the Indian Penal Code  (IPC).  Pursuant
\nthereto an Amendment Bill No. XLII of 1972 was introduced in
\nthe  Rajya Sabha on December 11, 1972 proposed wide  ranging
\nchanges\t in the IPC.  One change proposed was  to  bifurcate
\nsection\t 302, IPC into two parts, the first  part  providing
\nthat  except  in  cases specified in the  second  part,\t the
\npunishment for murder will be imprisonment for life  whereas
\nfor  the  more heinous crimes enumerated in clauses  (a)  to\n<\/p>\n
(c),  of  sub-section  (2) the punishment may  be  death  or
\nimprisonment  for life.\t A motion for reference of the\tBill
\nto  the Joint Committee of both the Houses was moved in\t the
\nRajya  Sabha  on December 14, 1972 by the then\tMinister  of
\nState in the Ministry of Home Affairs and was adopted on the
\nsame  day.   The Lok Sabha concurred in the  motion  of\t the
\nRajya  Sabha on December 21, 1972.  The Joint  Parliamentary
\nCommittee presented its report to the Rajya Sabha on January
\n29,  1976  recommending changes in several  clauses  of\t the
\nBill.\tWhile  retaining the amendment proposed\t in  section
\n302,  IPC, it recommended inclusion of one more\t clause\t (d)
\nafter clause (c) in sub-section (2) thereof and at the\tsame
\ntime  recommended  deletion  of section 303,  IPC.  It\talso
\nrecommended substitution of the existing section 57, IPC, by
\na  totally new section, the proviso whereto  has  relevance.
\nThe proposed proviso was as under:\n<\/p>\n
\t “Provided that where a sentence of imprisonment for
\n\t life  is  imposed on conviction of a person  for  a
\n\t capital  offence,  or\twhere a\t sentence  of  death
\n\t imposed  on a person has been commuted into one  of
\n\t imprisonment  for  life, such person shall  not  be
\n\t released from prison unless he had served at  least
\n\t fourteen years of imprisonment.”\n<\/p>\n
The  reason  which impelled the Committee to  introduce\t the
\nabove proviso was “That sometimes due to grant of  remission
\neven  murderers sentenced or commuted to  life\timprisonment
\nwere released at the end
\n\t\t\t\t\t\t       868<\/span>
\nof 5 to 6 years.” The Committee, therefore, felt that such a
\nconvict should not be released unless he has served  atleast
\n14 years of imprisonment.  It is evident from the scheme  of
\nthe aforesaid recommendations that the proviso was  intended
\nto  apply  to only those convicts who were convicted  for  a
\ncapital offence (this expression was defined by clause 15 of
\nthe  Bill recommending substitution of section 40,  IPC,  as
\n`an  offence  for  which death is  one\tof  the\t punishments
\nprovided  by law’) or whose sentence of death  was  commuted
\ninto one of imprisonment for life and not to those who\twere
\ngoverned by the first part of the proposed section 302, IPC.
\nIt  was\t pointed out by counsel that similar  benefit  would
\nhave  accrued  to offenders convicted for  offences  covered
\nunder section 305, 307 or 396 if the proposed sections\t305,
\n307(b)\tand 396(b) had come into being.\t That, contends\t the
\npetitioner’s counsel, would have considerably narrowed\tdown
\nthe  scope of the proposed proviso to section 57,  IPC,\t and
\nconsequently  the  rigour of the said provision\t would\thave
\nfallen\ton a tiny minority of offenders guilty of a  capital
\noffence.   Pursuant  to\t the  recommendations  made  by\t the
\nCommittee,  two\t bills, namely, the  IPC  (Amendment)  Bill,
\n1978,  came  to be introduced, the former  was\tpassed\twith
\nchanges\t by the Rajya Sabha on November 23, 1978  while\t the
\nlatter was introduced in the Lok Sabha on November 8,  1978,
\nand in the Rajya Sabha on December 5, 1978.  The proposal to
\nadd  a proviso to the proposed section 57, IPC did not\tfind
\nfavour\tas  it\twas thought that  the  said  subject  matter
\nappropriately  related\tto  Chapter XXXII of  the  Code\t and
\naccordingly  the  said provision was introduced\t as  section
\n433A  in the Code.  While the amendments to the Code  became
\nlaw with effect from December 18, 1978, the IPC\t amendments,
\nthough\tpassed by the Rajya Sabha could not be\tgot  through
\nthe Lok-Sabha and lapsed.  It may here be mentioned that the
\nIPC  Bill  as  approved by the\tRajya  Sabha  contained\t the
\nproposal  to divide section 302 into two parts, in  fact  an
\nadditional clause was sought to be introduced in the  second
\npart thereof and sections 305, 307 and 396 were also  sought
\nto  be amended as proposed by the Committee.  This in  brief
\nis the legislative history.\n<\/p>\n
     In\t the  backdrop\tof  the\t said  legislative  history,
\ncounsel\t for the petitioner argued that a legislative  fraud
\nwas  practised\tby  enacting section 433A of  the  Code\t and
\nfailing\t to carry out the corresponding changes in  sections
\n302,  305,  307, 396, etc., assured by the  passing  of\t the
\nIndian Penal Code (Amendment) Act, 1978, by the Rajya  Sabha
\non  November 23, 1978.\tAccording to him it is evident\tfrom
\nthe scheme of the twin Amendment Bills that the\t legislative
\nintent\twas to apply the rigour of section 433A of the\tCode
\nto a small number of heinous
\n\t\t\t\t\t\t       869<\/span>
\ncrimes\twhich  fell  within the meaning\t of  the  expression
\ncapital\t offence.   It was to achieve  this  objective\tthat
\nsection\t 302,  IPC was proposed to be bifurcated so  that  a
\nlarge number of murders would fall within the first part  of
\nthe  proposed provision which prescribed the  punishment  of
\nlife  imprisonment  only and thus fell beyond  the  mischief
\nof section 433A of the Code. To buttress his submission\t our
\nattention  was invited to Annexure II to the petition  which
\nis a copy of the letter dated July 10, 1979, written by\t the
\nJoint-Secretary\t in  the Ministry of Home  Affairs  to\tHome
\nSecretaries   of   all\tthe  concerned\t State\t Governments
\nexplaining  the\t purport of the newly  added  section  433A.
\nAfter explaining that section 57, IPC, had a limited  scope,
\nnamely, calculating fractions of terms of imprisonment only,
\nhe proceeds to state in paragraph 3 of the letter as under:
\n\t “The  restrictions imposed by section 433A  applies
\n\t only  to those life convicts who are convicted\t for
\n\t offences for which death is one of the\t punishments
\n\t prescribed  by\t law.\tIn  the\t Indian\t Penal\tCode
\n\t (Amendment) Bill, 1978 as passed by the Rajya Sabha
\n\t and  now pending in the Lok Sabha, section  302  is
\n\t proposed  to be amended so as to provide  that\t the
\n\t normal punishment for murder shall be\timprisonment
\n\t for  life  and\t that  only  in\t certain  cases\t  of
\n\t aggravating  circumstances  will  the\tcourt\thave
\n\t discretion to award death sentences.”\n<\/p>\n
     Then in paragraph 4 he proceeds to clarify as under:
\n\t “Even\tregarding  these  convicts  the\t restriction
\n\t imposed  by section 433A is not absolute  for,\t the
\n\t Constitutional power of the Governor under  Article
\n\t 161   to  commute  and\t remit\t sentences   remains
\n\t unaffected  and  can be exercised in each  case  in
\n\t which\tthe  exercise of this  power  is  considered
\n\t suitable.”\n<\/p>\n
     Then in paragraph 4 he proceeds to clarify as under:
\n\t “Even\tregarding  these  convicts  the\t restriction
\n\t imposed  by section 433A is not absolute  for,\t the
\n\t Constitutional power of the Governor under  Article
\n\t 161   to  commute  and\t remit\t sentences   remains
\n\t unaffected  and  can be exercised in each  case  in
\n\t which\tthe  exercise of this  power  is  considered
\n\t suitable.”\n<\/p>\n
In  paragraph  6 of the detailed note appended to  the\tsaid
\nletter, the legal position was explained thus:
\n\t “It  may  be  pointed\tout  that  the\t restriction
\n\t introduced  by section 433A does not apply  to\t all
\n\t life convicts.\t It applies only to those  prisoners
\n\t who  are  convicted of a capital  offence  i.e.  an
\n\t offence  for which death is one of the\t punishments
\n\t prescribed  by\t law.  Once the\t Indian\t Penal\tCode
\n\t (Amendment)   Bill  becomes  the   law,   offenders
\n\t sentenced
\n\t\t\t\t\t\t       870<\/span>
\n\t under\tproposed section 302(i) will not be  covered
\n\t by  this  provision as the offence will  not  be  a
\n\t capital  offence.  Thus in future  the\t restriction
\n\t introduced  by section 433A will not be  applicable
\n\t to  them  and will, in effect, cover  only  a\tvery
\n\t small\tnumber of cases.  Even in this small  number
\n\t of  cases the restriction will not in any way\tcurb
\n\t the  Constitutional  power to grant  remission\t and
\n\t commutation vested in the President or the Governor
\n\t by virtue of Articles 72 and 161.”\n<\/p>\n
There  can be no doubt that by this letter it was  clarified
\nthat  section  433A  of the Code will apply  to\t only  those
\nconvicted of a capital offence and not to all life convicts.
\nIt is equally clear that the said provision was expected  to
\napply  to exceptionally heinous offences falling within\t the
\ndefinition  of `capital offence’ once the Indian Penal\tCode
\n(Amendment)  Bill became law. Section 433A  was,  therefore,
\nexpected  to  deny premature release  before  completion  of
\nactual\t14  years  of incarceration to\tonly  those  limited
\nconvicts   convicted   of  a  capital  offence,\t  i.e.,\t  an
\nexceptionally heinous crime specified in the second part  of
\nthe  proposed  section 302, IPC. Lastly\t it  clarifies\tthat
\nsection\t 433A  cannot  and does not in any  way\t affect\t the
\nconstitutional\tpower  conferred on  the  President\/Governor
\nunder  ARticle\t72\/161\tof  the\t Constitution.\t It  cannot,
\ntherefore,  be denied that this letter and the\taccompanying
\nnote does give an impression that certain provisions of\t the
\nIndian\tPenal  Code (Amendment) Boll were  interlinked\twith
\nsection 433A of the Code.\n<\/p>\n
     Assuming  the Criminal Procedure Code (Amendment)\tBill
\nand the Indian Penal Code (Amendment) Bill were intended  to
\nprovide an integrated scheme of legislation, can it be\tsaid
\nthat  the failure on the part of the Lok Sabha to  pass\t the
\nletter renders the enactment of the former by which  section
\n433A  was introduced in the Code, `a legislative  fraud’  as
\ncounsel\t had  liked  to call it or to use  a  more  familiar
\nexpression  `colourable\t exercise  of  legislative   power’?
\nCounsel\t submitted that section 433A was got  introduced  on
\nthe statute book by deception, in that, when the former Bill
\nwas  made  law\tan  impression\twas  given  that  the\ttwin
\nlegislation  which  had already been cleared  by  the  Rajya
\nSabha on November 23, 1978 would in due course be cleared by
\nthe  Lok Sabha also so that the application of section\t433A
\nwould be limited to capital offences only and would have  no
\napplication  to\t a  large number of `lifers’.\tIt  must  be
\nconceded that such would have been the impact if the  Indian
\nPenal  Code (Amendment) Bill was passed by the Lok Sabha  in
\nthe form in which the Rajya and approved it.\n<\/p>\n
\t\t\t\t\t\t       871<\/span><\/p>\n
     This is not a case of legislative incompetence to enact
\nsection\t 433A.\tNo  such submission was\t made.\tBesides\t the
\nquestion  of  vires  of section 433A of the  Code  has\tbeen
\ndetermined  by the Constitution Bench of this Court in\tMaru
\nRam’s  case.  This Court repelled all the thrusts  aimed  at
\nchallenging the constitutional validity of section 433A. But
\ncounsel\t submitted that the question was not  examined\tfrom
\nthe   historical  perspective  of  the\ttwin   legislations.
\nCounsel for the State submitted that it was not\t permissible
\nfor  us to reopen the challenge closed by  the\tConstitution
\nBench  on  the specious plea that a particular\targument  or
\nplea  was  not\tcanvassed or made before  that\tBench.\t The
\nobjection  raised  by counsel for the  State  Government  is
\nperhaps not without substance but we do not propose to\tdeal
\nwith  it  because  even otherwise we see  no  merit  in\t the
\nsubmission  of the petitioner’s counsel.  It is only when  a
\nlegislature  which  has\t no  power  to\tlegislate  frames  a
\nlegislation so camouflaging it as to appear to be within its
\ncompetence when it knows it is not, it can be said that\t the
\nlegislation  so enacted is colourable legislation.  In\tK.C.
\nGajapati  Narayan  Deo v. State of Orissa, [1954]  SCR 1 the
\nOrissa\tAgricultural Income-tax (Amendment) Act,  1950,\t was
\nchallenged  on\tthe ground of colourable  legislation  or  a
\nfraud on the Constitution as its real purpose was to  effect
\na  drastic reduction in the amount of  compensation  payable
\nunder  the  Orissa Estates Abolition Act, 1952.\t  The  facts
\nwere that a Bill relating to the Orissa Abolition Act,\t1952
\nwas  published\tin  the\t Gazette on  January  3,  1950.\t  It
\nprovided  that any sum payable for  agricultural  income-tax
\nfor  the  previous year should be deducted  from  the  gross
\nasset  of  an estate for working out the net income  on\t the
\nbasis whereof compensation payable to the estate owner could
\nbe  determined.\t  Thereafter on January 8, 1950, a  Bill  to
\namend\tthe  Orissa  Agricultural  Income-tax,\t 1947,\t was
\nintroduced  to enhance the highest rate of tax from 3  annas
\nto  4 annas in a rupee and to reduce the highest  slab\tfrom
\nRs. 30,000 to Rs. 20,000. The next Chief Minister,  however,
\ndropped this Bill and introduced a fresh Bill enhancing\t the
\nhighest rate to 12 annas 6 pies in a rupee and reducing\t the
\nhighest\t slab to rs. 15,000 only.  On the same becoming\t law
\nit was challenged on the ground that the real purpose of the
\nlegislation  was  to  drastically  reduce  the\tcompensation
\npayable to the estate owners.  Mukherjea, J., who spoke\t for
\nthe Court observed as under:\n<\/p>\n
\t “It  may  be  made clear at  the  outset  that\t the
\n\t doctrine of colourable legislation does not involve
\n\t any  question\tof bona fides or mala fides  on\t the
\n\t part  of  the\tlegislature.   The  whole   doctrine
\n\t resolves itself into the question of competency  of
\n\t a particular legislature to enact a particular law.
\n\t If
\n\t\t\t\t\t\t       872<\/span>
\n\t the  legislature is competent to pass a  particular
\n\t law,  the  motives  which impelled it\tto  act\t are
\n\t really\t irrelevant.   On  the other  hand,  if\t the
\n\t legislature  lacks  competency,  the  question\t  of
\n\t motive does not arise at all.\tWhether a statute is
\n\t constitutional or not is thus always a question  of
\n\t power.”\n<\/p>\n
Thus  the whole doctrine resolves itself into a question  of
\ncompetency  of\tthe  concerned\tlegislature  to\t enact\t the
\nimpugned  legislation.\tIf the legislature has\ttransgressed
\nthe  limits  of\t its powers and\t if  such  transgression  is
\nindirect,  covert  or  disguised,  such\t a  legislation\t  is
\ndescribed  as  colourable  in  legal  parlance.\t  The\tidea
\nconveyed by the use of the said expression is that  although
\napparently a legislature in passing the statute purported to
\nact within the limits of its powers, it had in substance and
\nreality\t transgressed  its powers, the\ttransgression  being
\nveiled\tby  what  appears on close scrutiny  to\t be  a\tmere
\npretence  or  disguise.\t  In  other words  if  in  pith\t and
\nsubstance  the\tlegislation does not belong to\tthe  subject
\nfalling\t within the limits of its power but is\toutside\t it,
\nthe mere form of the legislation will not be determinate  of
\nthe  legislative  competence.  In Sonapur Tea  Co.  Ltd.  v.
\nMust.  Mazirunnessa,<\/a>  [1962]  1 SCR 724\t it  was  reiterated
\nrelying\t on Gajapati’s case that the doctrine of  colourable
\nlegislation  really postulates that legislation attempts  to
\ndo  indirectly what it cannot do directly.  Such is not\t the
\ncase before us.\t It is no body’s contention that  Parliament
\nwas  not competent to amend the Criminal Procedure  Code  by
\nwhich  section\t433A  was  inserted.   Whether\tor  not\t the
\nconnecting Indian Penal Code (Amendment) Bill ought to\thave
\nbeen  cleared or not was a matter left to the wisdom of\t the
\nLok  Sabha.  Merely because the Criminal Procedure Bill\t was
\nmade  law  and the Indian Penal Code  (Amendment)  Bill\t was
\npassed by the Rajya Sabha did not obligate the Lok Sabha  to
\nclear it.  The Lok  Sabha to clear it.\tThe Lok Sabha  could
\nhave  its  own\tviews  on the  proposed\t Indian\t Penal\tCode
\namendments.   It  may  agree  with  the\t executive’s  policy
\nreflected in the Bill, with or without modifications, or not
\nat  all.   Merely  because in  the  subsequent\tinstructions
\nissued\tby the letter of July 10, 1979 and the\taccompanying
\nnote (Annex. II) the Joint-Secretary had interlinked the two
\nBills,\tthe Lok Sabha was under no obligation to  adopt\t the
\nmeasure as such representation could not operate as estoppel
\nagainst\t it.  Even the indirect attempt on the part  of\t the
\nHigh Court of Himachal Pradesh in the ragging case to  force
\nthe State Government to legislate, State of Himachal Pradesh
\nv. A Parent of<\/a> a student of Medical College, Simla, [1985] 3
\nSCC  169 was disapproved by this Court as a matter  falling,
\noutside\t the functions and duties of the judiciary.  It\t is,
\ntherefore,  obvious  that no question of mala fides  on\t the
\npart of the legislature was involved in the enactment of one
\nlegislation and failure to
\n\t\t\t\t\t\t       873<\/span>
\nenact another.\tThere is no question of `legislative  fraud’
\nor `colourable legislation’ involved in the backdrop of\t the
\nlegislative history of section 433A of the Code as argued on
\nbehalf of the petitioner.\n<\/p>\n
     Counsel  for  the Petitioner, However,  tried  to\tseek
\nsupport\t form  the Privy Council decision in W.R.  Moram  v.
\nDeputy\tCommissioner of Taxation for N.S.W., [1940]  AC\t 838
\nWherein\t the  question\tto be  considered  was\twhether\t the
\nlegislative scheme was a colourable one forbidden by section
\n5(ii) of the Australian Constitution.  There was no  attempt
\nto disguise the scheme as it was fully disclosed.  The Privy
\nCouncil, while holding that the scheme was not a  colourable
\nlegislation,  observed\tthat `where there  is  admittedly  a
\nscheme\tof  proposed legislation, it seems to  be  necessary
\nwhen  the `pith and substance’ or `scope and effect’ of\t any
\none  of\t the  Acts is under  consideration,  to\t treat\tthem
\ntogether and to see how they interact’.\t But that was a case
\nwhere  the scheme was carried out through  enactments passed
\nby  the concerned legislatures.\t It is in that context\tthat
\nthe above observations must be read and understood.  In\t the
\npresent case also if both the Bills had become law,  counsel
\nwould  perhaps\thave  been justified in\t demanding  that  in
\nunderstanding  or construing one legislation or\t the  other,
\nthe  scheme  common  to both must be kept  in  view  and  be
\npermitted to interact.\tBut where the linkage does not exist
\non  account  of the Indian Penal Code (Amendment)  Bill\t not
\nhaving\tbecome law we are unable to appreciate\thow  section
\n433A  can  be read down to apply to only  those\t classes  of
\ncapital offences to which it would have applied had the said
\nBill  been passed by the Lok Sabha in the terms in which  it
\nwas  approved by the Rajya Sabha.  The language\t of  section
\n433A  is  clear\t and  unambiguous  and\tdoes  not  call\t for
\nextrinsic  aid\tfor  its  interpretation.   To\taccept\t the
\ncounsel’s submission to read down or interpret section\t433A
\nof  the\t Code  with the aid of the change  proposed  by\t the
\nIndian\tPenal  Code  (Amendment) Bill  would  tantamount  to
\ntreating the provisions of the said Bill as forming part  of
\nthe  Indian Penal Code which is clearly\t impermissible.\t  To
\nput  such an interpretation with the aid of  such  extrinsic
\nmaterial  would result in violence to the plain language  of
\nsection\t 433A  of the Code.  We are,  therefore,  unable  to
\naccept even this second limb of the contention.\n<\/p>\n
     The law governing suspension, remission and commutation
\nof sentence is both statutory and constitutional.  The stage
\nfor  the exercise of this power generally speaking is  post-
\njudicial,  i.e., after the judicial process has come  to  an
\nend.   The  duty  to  judge and\t to  award  the\t appropriate
\npunishment  to\tthe  guilty is\ta  judicial  function  which
\nculminates by a judgment pronounced in accordance with\tlaw.
\nAfter
\n\t\t\t\t\t\t       874<\/span>
\nthe  judicial function thus ends the executive\tfunction  of
\ngiving\teffect to the judicial verdict commences.  We  first
\nrefer to the statutory provisions.  Chapter III of IPC deals
\nwith  punishments.  The punishments to which  the  offenders
\ncan  be\t liable are enumerated in section  53,\tnamely,\t (i)
\ndeath  (ii)  imprisonment  for life  (iii)  imprisonment  of
\neither\t description,  namely,\trigorous  or   simple\t(iv)
\nforfeiture of property and (v) fine. Section 54 empowers the
\nappropriate  government to commute the punishment  of  death
\nfor any other punishment.  Similarly section 55 empowers the
\nappropriate   government   to  commute\t the   sentence\t  of
\nimprisonment for life for imprisonment of either description
\nfor  a\tterm not exceeding 14 years.  Chapter XXXII  of\t the
\nCode, to which section 433A was added, entitled\t `Execution,
\nSuspension, Remission and Commutation of sentences’ contains
\nsections  432  and  433 which  have  relevance;\t the  former
\nconfers\t power on the appropriate government to suspend\t the
\nexecution of an offender’s sentence or to remit the whole or
\nany  part of the punishment to which he has  been  sentenced
\nwhile the latter confers power on such Government to commute\n<\/p>\n
(a)  a\tsentence  of death for any other  punishment  (b)  a
\nsentence  of imprisonment for life, for imprisonment  for  a
\nterm  not exceeding 14 years of for fine (c) a\tsentence  of
\nrigorus imprisonment for simple imprisonment or for fine and\n<\/p>\n
(d)  a sentence of simple imprisonment for fine.  It  is  in
\nthe  context of the aforesaid provisions that we  must\tread
\nsection 433A which runs as under:\n<\/p>\n
\t “433A.\t  Restriction  on  powers  of  remission  or
\n\t commutation   in   certain    cases-Notwithstanding
\n\t anything contained in Section 432, where a sentence
\n\t of  imprisonment for life is imposed on  conviction
\n\t of  a person for an offence for which death is\t one
\n\t of  the  punishments provided by law,\tor  where  a
\n\t sentence  of  death imposed on a  person  has\tbeen
\n\t commutted   under   section   433   into   one\t  of
\n\t imprisonment  for  life, such person shall  not  be
\n\t released from prison unless he had served at  least
\n\t fourteen years of imprisonment.”\n<\/p>\n
The    section\t begins\t  with\t a    non-obstante    clause
\nnotwithstanding\t anything  contained  in  section  432\t and
\nproceeds  to  say that where a person is  convicted  for  an
\noffence\t for which death is one of the punishments  and\t has
\nbeen  visited with the lesser sentence of  imprisonment\t for
\nlife  or  where the punishment of an offender  sentenced  to
\ndeath  has  been  commuted under section  433  into  one  of
\nimprisonment  for life, such offender will not\tbe  released
\nunless he has served at least 14 years of imprisonment.\t The
\nreason\twhich  impelled\t the  legislature  to  insert\tthis
\nprovision has been stated earlier.  Therefore, one who could
\nhave been
\n\t\t\t\t\t\t       875<\/span>
\nvisited with the extreme punishment of death but on  account
\nof the\tsentencing court’s generosity was sentenced  to\t the
\nlesser\tpunishment of imprisonment for life and another\t who
\nactually was sentenced to death but on account of  executive
\ngenerosity  his sentence was commutted under section  433(a)
\nfor  imprisonment for life have been treated  under  section
\n433A  as  belonging to that class of prisoners\twho  do\t not
\ndeserve\t to be released unless they have completed 14  years
\nof actual incarceration.  Thus the effect of section 433A is
\nto restrict the exercise of power under sections 432 and 433
\nby  the stipulation that the power will not be so  exercised
\nas  would enable the two categories of convicts referred  to
\nin  section  433A to freedom before they have  completed  14
\nyears  of  actual  imprisonment.  This\tis  the\t legislative
\npolicy which is clearly discernible from the plain  language
\nof  section  433A of the Code. Such prisoners  constitute  a
\nsingle\tclass  and have, therefore, been  subjected  to\t the
\nuniform\t requirement  of  suffering  atleast  14  years\t  of
\ninternment.\n<\/p>\n
     Counsel  for the petitioner next submitted\t that  after
\nthis  court’s  decision in Bhagirath’s case  permitting\t the
\nbenefit\t of  set  off under section 428 in  respect  of\t the
\ndetention period as an undertrial, the ratio of the decision
\nin Godse’s case must be taken as impliedly disapproved.\t  We
\nsee  no\t basis\tfor this submission.  In  Godse’s  case\t the
\nconvict\t who  was sentenced to transportation for  life\t had
\nearned\tremission for 2963  days during his internment.\t  He
\nclaimed\t that in view of section 57 read with  section\t53A,
\nIPC, the total period of his incarceration could not  exceed
\n20  years  which he had completed, inclusive  of  remission,
\nand,   therefore,  his\tcontinued  detention  was   illegal.
\nSection 57, IPC reads as follows:\n<\/p>\n
\t “57.\tFractions   of\t terms\t of    punishment-In
\n\t calculating  fractions\t of  terms  of\t punishment,
\n\t imprisonment\tfor  life  shall  be   reckoned\t  as
\n\t equivalent to imprisonment for twenty years.”
\nThe  expression `imprisonment for life’ must be read in\t the
\ncontext\t of section 45, IPC. Under that provision  the\tword
\n`life’ denotes the life of a human being unless the contrary
\nappears from the context.  We have seen that the punishments
\nare  set out in section 53, imprisonment for life being\t one
\nof  them.   Read  in  the  light  of  section  45  it  would
\nordinarily  mean imprisonment for the full or complete\tspan
\nof  life.  Does section 57 convey to the  contrary?  Dealing
\nwith  this contention based on the language of\tsection\t 57,
\nthis  Court  observed  in Godse’s case at  pages  444-45  as
\nunder:\n<\/p>\n
\t\t\t\t\t\t       876<\/span><\/p>\n
\t “Section  57 of the Indian Penal Code has  no\treal
\n\t bearing  on  the question raised  before  us.\t For
\n\t calculating  fractions of terms of  punishment\t the
\n\t section provides that transportation for life shall
\n\t be  regarded  as  equivalent  to  imprisonment\t for
\n\t twenty years.\tIt does not say that  transportation
\n\t for  life shall be deemed to be transportation\t for
\n\t twenty years for all purposes; nor does the amended
\n\t section  which substitutes the words  “imprisonment
\n\t for life” for “transportation for life” enable\t the
\n\t drawing  of  any  such\t all embracing\tfiction.   A
\n\t sentence of transportation for life or imprisonment
\n\t for   life   must  prima  facie   be\ttreated\t  as
\n\t transportation or imprisonment for the whole of the
\n\t remaining period of the convicted person’s  natural
\n\t life.”\n<\/p>\n
This  interpretation of section 57 gets strengthened  if  we
\nrefer to sections 65, 116, 120 and 511, of the Indian  Penal
\nCode  which  fix  the term of imprisonment thereunder  as  a
\nfraction of the maximum fixed for the principal offence.  It
\nis  for\t the purpose of working out this  fraction  that  it
\nbecame necessary to provide that imprisonment for life shall
\nbe reckoned as equivalent to imprisonment for 20 years.\t  If
\nsuch  a\t provision  had not been made  it  would  have\tbeen
\nimpossible to work out the fraction of an in-definite  term.
\nIn  order  to work out the fraction of terms  of  punishment
\nprovided in sections such as those enumerated above, it\t was
\nimperative  to\tlay  down  the\tequivalent  term  for\tlife
\nimprisonment.\n<\/p>\n
     The second contention urged before the Court in Godse’s
\ncase  was based on the Bombay Rules governing the  remission
\nsystem\tframed in virtue of the provisions contained in\t the
\nPrisons Act, 1894.  This Court pointed out that the  Prisons
\nAct  did not confer on any authority a power to\t commute  or
\nremit  sentences.  The Remission Rules made thereunder\thad,
\ntherefore,  to\tbe confined to the scope and ambit  of\tthat
\nstatute\t and could not be extended to other statutes.  Under
\nthe Bombay Rules three types of remissions for good  conduct
\nwere  allowed  and for working them out\t transportation\t for
\nlife  was  equated  to\t15  years  of  actual  imprisonment.
\nDealing\t with  Godse’s plea for premature   release  on\t the
\nstrength  of these rules this Court observed at page 447  as
\nunder:\n<\/p>\n
\t “The rules framed under the Prisons Act enable such
\n\t a person to remission ordinary, special and  State-
\n\t and  the  said\t remissions  will  be  given  credit
\n\t towards his term of imprisonment.  For the  purpose
\n\t of working out the remis-\n<\/p>\n
\t\t\t\t\t\t       877<\/span><\/p>\n
\t sions\tthe sentence of transportation for  life  is
\n\t ordinarily  equated with a definite period, but  it
\n\t is only for that particular purpose and not for any
\n\t other\tpurpose.  As the sentence of  transportation
\n\t for   life  or\t its  prison  equivalent  the\tlife
\n\t imprisonment  is  one of indefinite  duration,\t the
\n\t remissions so earned do not in practice help such a
\n\t convict as it is not possible to predicate the time
\n\t of his death.\tThat is why the rules provide for  a
\n\t procedure  to enable an appropriate  Government  to
\n\t remit\tthe sentence under section 401 (now  section\n<\/p>\n
\t 432)  of  the\tCode  of  Criminal  Procedure  on  a
\n\t consideration of the relevant factors including the
\n\t period\t of  remissions\t earned.   The\tquestion  of
\n\t remission  is\texclusively within province  of\t the
\n\t appropriate  Government;  and in this\tcase  it  is
\n\t admitted  that\t though the  appropriate  Government
\n\t made  certain remissions under section 401  of\t the
\n\t Code  of Criminal Procedure, it did not  remit\t the
\n\t entire sentence.”\n<\/p>\n
On this line of reasoning the submission of counsel that  if
\nthe Court were to take the view that transportation for life
\nor imprisonment for life enures till the last breath of\t the
\nconvict\t passes out, the entire scheme of remissions  framed
\nunder  the  Prisons Act or any like statute  and  the  whole
\nexercise  of  crediting\t remissions to the  account  of\t the
\nconvict would collapse, was spurned.  This Court came to the
\nconclusion that the Remission Rules have a limited scope and
\nin   the   case\t of  a\tconvict\t  undergoing   sentence\t  of
\ntransportation for life or imprisonment for life it acquires
\nsignificance  only if the sentence is commuted or  remitted,
\nsubject\t to  section  433A of the Code\tor  in\texercise  of
\nconstitutional power under Articles 72\/161.\n<\/p>\n
     In\t Maru Ram’s case the Constitution  Bench  reaffirmed
\nthe  ratio  of Godse’s case and held that the  nature  of  a
\nlife   sentence\t is  incarceration  until  death;   judicial
\nsentence  for  imprisonment for life cannot be\tin  jeopardy
\nmerely because of long accumulation of remissions.   Release
\nwould  follow  only upon an order under section 401  of\t the
\nCriminal Procedure Code, 1898 by the appropriate  Government
\nor  on a clemency order in exercise of power under  Articles
\n72\/161\tof the Constitution.  At page 1220 the\tConstitution
\nBench expressed itself thus:\n<\/p>\n
\t “Ordinary where a sentence is for a definite  term,
\n\t the calculus of remissions may benefit the prisoner
\n\t to   instant  release\tat  that  point\t where\t the
\n\t substraction result is zero.\n<\/p>\n
\t\t\t\t\t\t       878<\/span><\/p>\n
\t Here,\twe are concerned with life imprisonment\t and
\n\t so  we\t come upon another concept  bearing  on\t the
\n\t nature\t of sentence which has been  highlighted  in
\n\t Godse’s case.\tWhere the sentence is  indeterminate
\n\t or   of   uncertain   duration,   the\t result\t  of
\n\t substraction from an uncertain quantity is still an
\n\t uncertain  quantity  and release  of  the  prisoner
\n\t cannot\t  follow   except   on\t some\tfiction\t  of
\n\t quantification\t  of   a   sentence   of   uncertain
\n\t duration.”\n<\/p>\n
Referring  to  the facts of Godse’s case and  affirming\t the
\nview that the sentence of imprisonment for life enures\tupto
\nthe  last  breath of the convict, this\tCourt  proceeded  to
\nestate as under:\n<\/p>\n
\t “Since\t death\twas uncertain, deduction by  way  of
\n\t remission  did\t not  yield any\t tangible  date\t for
\n\t release  and  so the prayer of Godse  was  refused.
\n\t The  nature  of a life\t sentence  is  incarceration
\n\t until death, judicial sentence of imprisonment\t for
\n\t life  cannot be in jeopardy merely because  of\t the
\n\t long accumulation of remissions.”\n<\/p>\n
It is, therefore, clear from the aforesaid observations that
\nunless\tthe  sentence for life imprisonment is\tcommuted  or
\nremitted  as  stated earlier by\t the  appropriate  authority
\nunder the provisions of the relevant law, a convict is bound
\nin  law to serve the entire life term in prison;  the  rules
\nframed under the Prisons Act or like statute may enable such
\na  convict to earn remissions but such remissions  will\t not
\nentitle\t him to release before he has completed 14 years  of
\nincarceration in view of section 433A of the Code unless  of
\ncourse\tpower has been exercised under Article 7\/161 of\t the
\nConstitution.\n<\/p>\n
     It\t will thus be seen from the ratio laid down  in\t the
\naforesaid  two cases that where a person has been  sentenced
\nto imprisonment for life the remissions earned by him during
\nhis internment in prison under the relevant remission  rules
\nhave  a limited scope and must be confined to the scope\t and
\nambit  of  the said rules and do  not  acquire\tsignificance
\nuntil  the sentence is remitted under section 432, in  which
\ncase the remission would be subject to limitation of section
\n433A of the Code, or constitutional power has been exercised
\nunder  Article 72\/161 of the Constitution.   In\t Bhagirath’s
\ncase the question which the Constitution Bench was  required
\nto  consider was whether a person sentenced to\timprisonment
\nfor  life can claim the benefit of section 428 of  the\tCode
\nwhich,\tinter  alia provides for setting off the  period  of
\ndetention undergone by the accused as an undertrial  against
\nthe sentence of
\n\t\t\t\t\t\t       879<\/span>
\nimprisonment ultimately awarded to him. Referring to section
\n57,  IPC,  the\tConstitution  Bench  reiterated\t the   legal
\nposition as under:\n<\/p>\n
\t “The\tprovision  contained  in  Section  57\tthat
\n\t imprisonment  for  life  has  to  be  reckoned\t  as
\n\t equivalent to imprisonment for 20 years is for\t the
\n\t purpose  of  calculating  fractions  of  terms\t  in
\n\t punishment.   We cannot press that  provision\tinto
\n\t service for a wider purpose.”\n<\/p>\n
These  observations are consistent with the ratio laid\tdown
\nin Godse and Maru Ram’s cases.\tComing next to the  question
\nof set off under section 428 of the Code, this Court held:
\n\t “The\tquestion  of  setting  off  the\t period\t  of
\n\t detention undergone by an accused as an  undertrial
\n\t prisoner against the sentence of life\timprisonment
\n\t can  arise  only  if  an order\t is  passed  by\t the
\n\t appropriate authority under section 432 of  section
\n\t 433  of  the Code.  In the absence or\tsuch  order,
\n\t passed\t generally or specially, and apart from\t the
\n\t provisions,  if  any of the relevant  Jail  Manual,
\n\t imprisonment for life would mean, according to\t the
\n\t rule  in Gopal Vinayak Godse, imprisonment for\t the
\n\t remainder of life.”\n<\/p>\n
We fail to see any departure from the ratio of Godse’s case;
\non  the\t contrary  the afore-quoted  passage  clearly  shows
\napproval  of that ratio and this becomes further clear\tfrom
\nthe  final  order  passed by the Court\twhile  allowing\t the
\nappeal\/writ petition.  The Court directed that the period of
\ndetention  undergone  by  the  two  accused  as\t  undertrial
\nprisoners  would  be set off against the  sentence  of\tlife
\nimprisonment  imposed upon them, subject to  the  provisions
\ncontained  in section 433A and, `provided that\torders\thave
\nbeen  passed by the appropriate authority under section\t 433
\nof  the Code of Criminal Procedure’.  These directions\tmake
\nit clear beyond any manner of doubt that just as in the case
\nof  remissions so also in the case of set off the period  of
\ndetention  as undertrial would enure to the benefit  of\t the
\nconvict\t provided the appropriate Government has  chosen  to
\npass an order under sections 432\/433 of the Code.  The ratio
\nof Bhagirath’s case, therefore, does not run counter to\t the
\nratio of this Court in the case of Godse or Maru Ram.\n<\/p>\n
     Under  the Constitutional Scheme the President  is\t the
\nChief Executive of the Union of India in whom the  executive
\npower  of the Union vests.  Similarly, the Governor  is\t the
\nChief Executive of the
\n\t\t\t\t\t\t       880<\/span>
\nconcerned State and in him vests the executive power of that
\nState.\t Articles  72 and 161 confer the clemency  power  of
\npardon,\t etc.,\ton the President and  the  State  Governors,
\nrespectively.\tNeedless  to say  that\tthis  constitutional
\npower  would  override\tthe  statutory\tpower  contained  in
\nsections  432 and 433 and the limitation of section 433A  of
\nthe  Code as well as the power conferred by sections 54\t and
\n55,  IPC.  No doubt, this power has to be exercised  by\t the
\nPresident\/Governor   on\t the  advice  of  his\tCouncil\t  of
\nMinisters.   How  this power can be  exercised\tconsistently
\nwith Article 14 of the Constitution was one of the Questions
\nwhich  this Court was invited to decide in Maru Ram’s  case.
\nIn  order  that there may not be  allegations  of  arbitrary
\nexercise of this power this Court observed at pages  1243-44
\nas under:\n<\/p>\n
\t “The  proper thing to do, if Government is to\tkeep
\n\t faith\twith the founding fathers, is to make  rules
\n\t for its own guidance in the exercise of the  pardon
\n\t power keeping, ofcourse, a large residuary power to
\n\t meet  special\tsituations or  sudden  developments.
\n\t This  will exclude the vice of discrimination\tsuch
\n\t as may arise where two persons have been  convicted
\n\t and sentenced in the same case for the same  degree
\n\t of guilt but one is released and the other refused,
\n\t for  such  irrelevant reasons as  religion,  caste,
\n\t color or political loyalty.”\n<\/p>\n
Till  such rules are framed this Court thought\tthat  extant
\nremission  rules framed under the Prisons Act or  under\t any
\nother  similar\tlegislation  by the  State  Governments\t may
\nprovide\t effective  guidelines of  a  recommendatory  nature
\nhelpful\t to  the  Government  to  release  the\tprisoner  by
\nremitting the remaining term.  It was, therefore,  suggested
\nthat  the said rules and remission schemes be continued\t and
\nbenefit\t thereof  be extended to all those who\tcome  within
\ntheir  purview.\t At the same time the Court was\t aware\tthat
\nspecial cases may require different considerations and\t`the
\nwide  power of executive clemency cannot be bound down\teven
\nby   self-created  rules’.   Summing  up  its  findings\t  in
\nparagraph 10 at page 1249, this Court observed:
\n\t “We  regard it as fair that until fresh  rules\t are
\n\t made  in  keeping  with  the  experience  gathered,
\n\t current social conditions and accepted\t penological
\n\t thinking-a desirable step, in our view-the  present
\n\t remissions  and  release schemes  may\tusefully  be
\n\t taken\tas  guidelines\tunder  ARticles\t 72\/161\t and
\n\t orders\t for  release passed.  We cannot  fault\t the
\n\t Government,   if   in\t some\tintractably   savage
\n\t delinquents, section
\n\t\t\t\t\t\t       881<\/span>
\n\t 433A is itself treated as a guideline for  exercise
\n\t of Articles 72\/161.  These observations of ours are
\n\t recommendatory\t to  avoid a hiatus, but it  is\t for
\n\t Government, Central or State, to decide whether and
\n\t why the current Remission Rules should not  survive
\n\t until replaced by a more wholesome scheme.”
\nIt will be obvious from the above that the observations were
\npurely recommendatory in nature.\n<\/p>\n
     In\t Kehar Singh’s case on the question of\tlaying\tdown
\nguidelines for the exercise of power under Article 72 of the
\nConstitution this Court observed in paragraph 16 as under:
\n\t “It seems to us that there is sufficient indication
\n\t in  the terms of Article 72 and in the\t history  of
\n\t the  power enshrined in that provision as  well  as
\n\t existing case-law, and specific guidelines need not
\n\t be spelled out.  Indeed, it may not be possible  to
\n\t lay   down   any  precise,  clearly   defined\t and
\n\t sufficiently  channelised guidelines, for  we\tmust
\n\t remember that the power under Article 72 is of\t the
\n\t widest amplitude, can contemplate a myriad kind  of
\n\t and  categories of cases with facts and  situations
\n\t varying from case to case, in which the merits\t and
\n\t reasons  of  State may be  profoundly\tassisted  by
\n\t prevailing occasion and passing time.\tAnd it is of
\n\t great significance that the function itself  enjoys
\n\t high status in the constitutional scheme.”
\nThese  observations do indicate that the Constitution  Bench
\nwhich  decided Kehar Singh’s case was of the view  that\t the
\nlanguage   of\tArticle\t 72  itself   provided\t  sufficient
\nguidelines  for the exercise of power and having  regard  to
\nits  wide  amplitude and the status of the  function  to  be
\ndischarged  thereunder, it was perhaps unnecessary to  spell
\nout  specific  guidelines since such guidelines may  not  be
\nable to conceive of all myraid kinds and categories of cases
\nwhich may come up for the exercise of such power.  No  doubt
\nin Maru Ram’s case the Constitution Bench did recommend\t the
\nframing\t of  guidelines\t for the  exercise  of\tpower  under
\nArticles  72\/161 of the Constitution.  But that was  a\tmere
\nrecommendation\tand not a ratio decidendi having  a  binding
\neffect on the Constitution Bench which decided Kehar Singh’s
\ncase.\tTherefore, the observation made by the\tConstitution
\nBench  in Kehar Singh’s case does not upturn any ratio\tlaid
\ndown in Maru Ram’s case.  Nor has the Bench in Kehar Singh’s
\ncase said anything with regard to using the
\n\t\t\t\t\t\t       882<\/span>
\nprovisions  of extent Remission Rules as guidelines for\t the
\nexercise of the clemency powers.\n<\/p>\n
     It\t is  true  that\t Articles 72\/161  make\tuse  of\t two
\nexpressions  `remissions’  with\t regard\t to  punishment\t and
\n`remit’\t in  relation  to sentence but we do  not  think  it
\nproper\tto  express  any  opinion  as  to  the\tcontent\t and
\namplitude  of these two expressions in the abstract  in\t the
\nabsence\t of  a fact-situation.\tWe,  therefore,\t express  no
\nopinion\t on this question formulated by the learned  counsel
\nfor the petitioner.\n<\/p>\n
     Lastly the learned counsel for the petitioner raised  a
\nhypothetical  question whether it was permissible in law  to
\ngrant  conditional premature release to a life convict\teven
\nbefore completion of 14 years of actual imprisonment,  which
\nrelease\t would tantamount to the prisoner serving  time\t for
\nthe  purpose of section 433A  of the Code? It  is  difficult
\nand  indeed  not  advisable to answer  such  a\thypothetical
\nquestion  without  being  fully\t aware\tof  the\t nature\t  of
\nconditions  imposed for release.  We can do no\tbetter\tthan
\nquote  the following observations made at page 1247 in\tMaru
\nRam’s case:\n<\/p>\n
\t “……..the expression `prison’ and `imprisonment’
\n\t must  receive a wider connotation and\tinclude\t any
\n\t place\tnotified  as such  for\tdetention  purposes.
\n\t `Stone-walls  and iron bars do not a  prison-make’:
\n\t nor are `stone walls and iron bars’ a sine qua\t non
\n\t to  make a jail. Open jails are capital  instances.
\n\t any  life  under the control of the  State  whether
\n\t within\t high-walled or not may be a prison  if\t the
\n\t law  regards  it as such.   House  detentions,\t for
\n\t example, Palaces, where Gandhiji was detained\twere
\n\t prisons.  Restraint on freedom under the prison law
\n\t is the test.  Licencsed where instant re-capture is
\n\t sanctioned  by the law and likewise  parole,  where
\n\t the parole is not free agent, and other  categories
\n\t under\tthe invisible fetters of the prison law\t may
\n\t legitimately  be  regarded as\timprisonment.\tThis
\n\t point\t is  necessary\tto  be\tcleared\t  even\t for
\n\t computation of 14 years under section 433A.
\nTherefore,  in each case, the question whether the grant  of
\nconditional premature release answers the test laid down  by
\nthis Court in the afore-quoted passage, would depend on\t the
\nnature\tof the conditions imposed and the  circumstances  in
\nwhich the order is passed and is to be executed.  No general
\nobservation can be made and we make none.\n<\/p>\n
\t\t\t\t\t\t       883<\/span><\/p>\n
     In\t  paragraph  10\t of  the  memorandum  of  the\tWrit
\npetition.,  three  reasons have been assigned  for  invoking
\nthis   Court’s\t jurisdiction  under  Article  32   of\t the
\nConstitution,  viz.,  (i)  the questions  involved  in\tthis
\npetition  will\taffect\tthe right of a large  body  of\tlife
\nconvicts  seeking  premature  release;\t(ii)  this   Court’s
\njudgment  in Bhagirath’s case deviated from the\t ratio\tlaid
\ndown  in  Godse’s  case and, therefore, the  entire  law  of
\nremissions  needed  a review; and (iii) the  High  Court  of
\nRajasthan  had refused to examine the merits of the  various
\nimportant  questions  of  law raised before it.\t  It  is  on
\naccount of the fact that this petition was in the nature  of
\na  representative  petition touching the rights of  a  large
\nnumber of convicts of the categories referred to  in section
\n433A  of  the  Code, that we have  dealt  with\tthe  various
\nquestions  of law in extenso.  Otherwise the petition  could
\nhave been disposed of on the narrow ground that even  though
\nin  view  of sections 433A of the  Code,  premature  release
\ncould not be ordered under sections 432\/433 of the Code read
\nwith  the 1958 Rules until the petitioner had  completed  14
\nyears\tof  actual  imprisonment,  his\trelease\t  could\t  be
\nconsidered  in exercise of powers under Articles  72\/161  of
\nthe  Constitution  treating the 1958  Rules  guidelines,  if
\nnecessary.\n<\/p>\n
     The relief claimed in the petition is two-fold, namely,\n<\/p>\n
(a)  to grant a mandamus to the appropriate  Government\t for
\nthe  premature\trelease\t of  the  petitioner  by  exercising
\nconstitutional power with the aid of 1958 Rules and  (b)  to
\ndeclare the petitioner’s continued detention as illegal\t and
\nvoid.\tThe petitioner has not completed 14 years of  actual
\nincarceration and as such he cannot invoke sections 432\t and
\n433 of the Code.  His continued detention is consistent with
\nsection\t 433A of the Code and there is nothing on record  to
\nshow that it is otherwise illegal and void.  The outcome  of
\nhis  clemency application under the constitution is not\t put
\nin issue in the present proceedings if it has been  rejected
\nand if the same is pending despite the directive of the High
\nCourt  it  would be open to the petitioner to  approach\t the
\nHigh  Court  for  the compliance of its\t order.\t  Under\t the
\ncircumstance no mandamus can issue.  The writ petition must,
\ntherefore, fail.  It is hereby dismissed.  Rule discharged.\n<\/p>\n
G.N.\t\t\t\t\t Petition dismissed.\n\t\t\t\t\t\t       884<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ashok Kumar Alias Golu vs Union Of India And Ors on 10 July, 1991 Equivalent citations: 1991 SCR (2) 858, 1991 SCC (3) 498 Author: Ahmadi Bench: Ahmadi, A.M. (J) PETITIONER: ASHOK KUMAR ALIAS GOLU Vs. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT10\/07\/1991 BENCH: AHMADI, A.M. (J) BENCH: AHMADI, […]<\/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-228618","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nAshok Kumar Alias Golu vs Union Of India And Ors on 10 July, 1991 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashok-kumar-alias-golu-vs-union-of-india-and-ors-on-10-july-1991\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashok Kumar Alias Golu vs Union Of India And Ors on 10 July, 1991 - 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