tition Crl No 850 of 1982 Under article 32 of the Constitution of India SB Malik and KB Rohtagi for the Petitioner
Harbans Singh and DD Sharma for the Respondents
The Judgment of the Court was delivered by TULZAPURKAR J
By this writ petition under article 32 of the Constitution the petitioner Naib Singh is challenging his continued detention in jail and is seeking an order in the nature of habeas corpus claiming that he has justly served more than the maximum sentence of imprisonment prescribed under law and should therefore be released
The petitioner was originally sentenced to death on 1811969 by the learned Sessions Judge Ferozepore for committing an offence of murder under section 302 Indian Penal Code
Later on a mercy petition preferred by him his death sentence was commuted by the Governor of Punjab to imprisonment for life which he has been undergoing in the Central Jail at Bhatinda
Excluding the period spent by him as an under trial prisoner in respect whereof no life convict is entitled to the benefit of a set off under section as interpreted by this Court in Kartar Singh s 1 case the petitioner appears to have undergone a total imprisonment of 22 years 2 months and 17 days inclusive of remissions as under Yrs
months days ____________________________________________________________ a actual rigorous imprisonment after conviction
11 5 10 b Jail remissions 2 3 6 c Govt
remissions 8 6 1 _____________________________ Total 22 2 17 ________________________________ Admittedly neither his sentence has been remitted fully nor commuted for imprisonment for a term not exceeding 14 years either 775 under section 55 IPC or section 433b Cr
PC 1973 by the appropriate Government with the result that he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse s1 case
However on the basis of the aforesaid particulars which are not disputed the petitioner s case is that he has positively undergone more than 14 years of sentence including remissions and since through the Officer in Charge of jail the Government got executed his sentence in jail custody in the form of rigorous imprisonment that is by subjecting him to hard labour and also by awarding him remissions the Government must be deemed to have commuted his sentence to 14 years either under section 55 IPC or section 433b Cr
PC 1973 notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith
Counsel for the petitioner elaborated the petitioner s case thus Section 53 IPC prescribes five or six distinct categories of punishment to which offenders are liable under the Indian Penal Code
Prior to its amendment by section 117 of the Code of Criminal Procedure Amendment Act 26 of 1955 that section prescribed the punishment of Transportation  at item Secondly  but that was substituted by Imprisonment for life  by the said Amending Act 26 of 1955 with effect from January 1 1956
According to counsel though persons who commit the offence of murder have been made liable to the newly substituted punishment of Imprisonment for life  instead of the earlier sentence of transportation for life  under section 302 IPC read with secondly  of section 53 IPC this new sentence of Imprisonment for life  either awarded originally by the Sessions Court or by way of commutation of death sentence by the appellate Court or the appropriate Government or authority has not been made legally executable  in jail under either the Code of Criminal Procedure 1898 or 1973 or any other law or under any writ order or warrant of the Court by the Officer in Charge of jail and like sentence of transportation for life  imprisonment for life  remains executable by way of banishment or exile to the places  envisaged under section 32 of the Prisoners Act 3 of 1900 and the Officer in Charge of the jail is merely mandated to keep this convict person in intermediate custody only and is required to deliver him over  to appropriate authority and custody for the purpose of removal to the places  aforesaid for executing or carrying out the sentence and in this behalf reliance was placed on 776 the prescribed Forms of Warrant of Commitment under sections 383 and 386 of the Cr
PC 1898 as also under section 418 of the Cr
PC 1973 and therefore the detention in jail of a person under Imprisonment for life  is unlawful
Counsel further urged that the Amending Act 26 of 1955 did not change the nature of punishment formerly known as transportation for life  by calling it imprisonment for life  and the latter like the former remains distinct from the punishment of rigorous or simple imprisonment  enlisted at item Fourthly  in section 53 IPC and it is only the punishment enlisted at item Fourthly  which must mean imprisonment for a term that can be executed in a jail either in rigorous manner or simple depending upon the Court s direction contained in the Warrant of commitment in other words the two punishments namely imprisonment for life  and imprisonment for a term rigorous or simple  are distinct punishments as regards their nature the place and the mode of their execution and the Officers executing them
In substance counsel s contention has been that in regard to the sentence of life imprisonment the place where it has to be executed or carried out has not been appointed under section 32 of the Prisoners Act 1900 nor has its nature been prescribed that is to say it is not necessarily rigorous
In support of the latter aspect regarding the nature of the punishment counsel relied upon the fact that even the Law commission in its 39th Report dated 4th July 1968 on The Punishment of Imprisonment for Life under the IPC had recommended a suitable amendment in the IPC by inserting a specific provision to the effect Imprisonment for life shall be rigorous and that the said recommendation was reiterated by it in its 42nd Report which suggests that the existing Law on this aspect is not clear
Counsel therefore urged that since the sentence of imprisonment for life  like the sentence of transportation for life  can be executed only by the convict being removed to the place or places  required to be appointed by the State Government under section 32 of the Prisoners Act 1900 and since no such place or places  have been appointed under the aforesaid provision by the State Government the executing authorities are obliged by the present State of law to execute  or carry out  the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under section 55 IPC or section 433b Cr
PC 1973
In other words according to counsel in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail custody his detention in such jail custody will have to be regarded as illegal and unlawful or alternatively it should be held that on his being made to undergo 777 rigorous imprisonment in jail for a period of 14 years inclusive of remissions he would be entitled to be released from jail as on the expiry of the aforesaid period his continued detention would be illegal
It was on the basis of the aforesaid reasoning that counsel contended that although no formal order of commutation either under section 55 IPC or section 433 b Cr PC has been passed in the case of the petitioner the petitioner having been subjected to rigorous imprisonment for a period of more than 14 years inclusive of remissions the State Government should be deemed to have passed such an order and the petitioner was entitled to be released forthwith
On the other hand counsel for the respondents seriously disputed that either the old sentence of transportation for life  or the new sentence of imprisonment for life  substituted by the Amending Act 26 of 1955 was or is executable only by way of banishment or exile of the convicts to overseas penal settlements or that the Officers in Charge of jails could not or cannot confine them in the jails within the country for executing or carrying out the sentences imposed upon them
Counsel emphatically denied that either the old sentence of transportation for life  or the newly substituted sentence of imprisonment for life  either awarded originally or by way of commutation of death sentence had not been or has not been made legally executable in jails in the country and contended that there was and is ample legal authority warranting the execution or carrying out of such sentences in the jails through the Officers in Charge thereof and in that behalf reliance was placed on sections 383 384 of the old Cr
PC 1898 as well as sections 418 419 of the present Cr
PC 1973 read with ss3 7 15 16 29 and 32 of the Prisoners Act No 3 of 1900 and certain executive or administrative orders or directions issued from time to time by State Governments in particular reference was made to Paragraphs 719 and 726A of the Punjab Jail Munual whereunder transportation prisoners who would include life convicts could be made to undergo their sentences in certain jails in the country such jails being constituted the place  for their confinement under section 32 of Act 3 of 1900 and counsel urged that accordingly the petitioner herein has been undergoing his sentence of life imprisonment in the Central Jail Bhatinda
Further on the aspect of the nature of the punishment counsel contended that having regard to the insertion of a new section section 53 A in the Indian Penal Code by the Amending Act 26 of 1955 which is in the nature of an Interpretation Clause it would be clear that Parliament intended that a sentence of imprisonment for life  should be equivalent to rigorous imprisonment for life
It was pointed out that on both the aspects touching 778 the punishment of imprisonment for life  namely the place of its executability as well as its nature the contentions urged on behalf of the petitioner have been concluded by two well known judicial pronouncements one of the Privy Council in Pandit Kishori Lal s 1 case and the other of this Court in Gopal Godse s case supra and the position in law on both the aspects having been settled by those decisions the recommendation made by the Law Commission in its 39th Report as well as 42nd report will be of no avail to the petitioner and will have to be regarded as having been made only for the purpose of removal of doubts and clarifying or declaring the existing legal position
If therefore the sentence of imprisonment for life  is nothing but rigorous imprisonment for life  and can be and is being legally executed or carried out in one of the jails in the country in the case of the petitioner there will be no question of releasing him forthwith simply because he has served 14 years of rigorous imprisonment inclusive of remissions in the absence of an order of commutation passed by the State Government either under section 55 of the IPC or section 433 b of the Cr
PC 1973
The petitioner is therefore not entitled to the relief sought by him
From the rival contentions urged by counsel on either side as summarised above it will appear clear that the entire edifice of the petitioner s claim for immediate release from jail custody is based on two premises  a inexcusability of the sentence of life imprisonment formerly called transportation for life in jail through the Officer in Charge thereof under the existing law and b undefined nature of punishment to be suffered under the sentence of life imprisonment which is not necessarily rigorous but because he was made to undergo his sentence of life imprisonment in jail and that too in rigorous manner for more than 14 years inclusive of remissions his sentence should be deemed to have been commuted by the State Government either under section 55 IPC or under section 433 b Cr
PC 1973 without a formal order in that behalf and he be released forthwith
The question is whether the two premises on which his claim to immediate release rests are valid  On the question whether a sentence of transportation for life could be executed in jails within the country or the same was executable only beyond the seas the position in our view has been clearly enunciated by the Privy Council in Pt
Kishori Lal s case supra
After considering the history of the sentence of transportation the relevant provisions of the Indian Penal Code the Code of 779 Criminal Procedure and the Prisoners Act the Privy Council came to the conclusion that the said provisions clearly showed that a sentence of transportation was not necessarily executable beyond the seas
It observed at Page 66 of the Report thus  These sections make it plain that when a sentence of transportation has been passed it is no longer necessarily a sentence of transportation beyond the seas
Nowhere is any obligation imposed on the Government either of India or of the Provinces to provide any places overseas for the reception of prisoners
It appears that for many years the only place to which they have been sent is the Andaman Islands are now in Japanese occupation
Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are and are not regarded as fit subjects for transportation thereto and showing also that nowadays only such of those prisoners sentenced to transportation as may volunteer to undergo transportation overseas are sent to those islands  
But at the present day transportation is in truth but a name given in India to a sentence for life and in a few special cases for a lesser period just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards 
So in India a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners   However Counsel for the petitioner made a brave attempt of course in all humility to submit that the provisions of law referred to by the Privy Council for basing its aforesaid conclusion do not warrant the said conclusion and with a view to canvas his submission he elaborately dealt with and took us through the various provisions of the Penal Code Criminal Procedure Code and the Prisoners Act
On giving our careful and anxious consideration to the matter we have come to the conclusion that it is difficult to accept counsel s submission
Counsel pointed out that great reliance was placed by the Privy council on section 58 of the Indian Penal Code which was in force then since repealed by Amending Act 26 of 1955 but urged that 780 that section merely provided for the temporary or transitory detention and treatment of the offender in local jail pending his deportation beyond the seas and therefore that provision could not be relied upon for coming to the conclusion that transportation prisoners could be confined in local jails for undergoing their entire sentences
It must however be pointed out that the Privy Council has not solely relied upon section 58 IPC for reaching its aforesaid conclusion
In fact in that behalf it has observed  Were these sections 53 55 and 58 IPC the only statutory provisions dealing with the matter there would be much force in the argument that section 58 should be read as providing merely for the temporary or transitory detention and treatment of an offender while arrangements were being made for his transportation beyond the seas and has not merely gone into the history of the sentence but also indicated the other provisions of Criminal Procedure Code 1898 and the Prisoners Act 1900 which supported its conclusion
In other words it realised the fact that section 58 IPC
made provision for a transitory period but taken along with other statutory provisions it helped to reach the conclusion that transportation prisoners were not necessarily required to be sent beyond the seas and in that behalf it relied upon section and particularly certain provisions like sections 29 31 and 32 of the Prisoners Act 1900 as amended in 1903 which in its opinion were decisive on the point
As we shall point out presently the other statutory provisions read with the orders of administrative character issued from time to time by the State Governments to which a reference has also been made in the judgment do support the conclusion reached by it
It may be pointed out and this was not even disputed by the counsel for the petitioner that even prior to the coming into force of the Amending Act 26 of 1955 ie prior to 111956 all prisoners sentenced to transportation for a term of years or for life were not invariably deported to the over seas penal settlement in the Andamans but transportation prisoners were divided into two categories namely those who were eligible for deportation and those who were not who generally included convicts suffering from specified diseases or infirmities and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under sec
32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order under sec
55 IPC or sec
402 Cr
PC 1898 which was within the discretion of the State Government
Reference in 781 this behalf may be made to sec
32 of the Prisoners Act 1900 and Paragraph 719 of Punjab Jail Manual
Section 32 of Act III of 1900 which specifically deals with Persons Under Sentence of Transportation now applicable to persons sentenced to imprisonment for life runs thus  32
Appointment of places for confinement of persons under sentence of transportation and removal thereto 1 The State Government may appoint places within the State to which persons under sentence of transportation shall be sent and the State Government or some officer duly authorised in this behalf by the State Government shall give orders for the removal of such persons to the places so appointed except when sentence of transportation is passed on a person already undergoing transportation under a sentence previously passed for another offence
2 In any case in which the State Government is competent under sub section
1 to appoint places within the States and to order the removal thereto of persons under sentence of transportation the State Government may appoint such places in any other State by agreement with the State Government of that State and may be like agreement give orders or duly authorise some officer to give orders for the removal thereto of such person
 Under this provision the State Government has been empowered to appoint places within the State and places in other States with their consent where transportation prisoners could be lodged for undergoing their sentences
It is obvious that the expression confinement  occurring in the marginal note of the section means the prisoners  detention in the places for the purpose of executing or carrying out their sentence
Counsel for the petitioner strenuously urged that the places  envisaged for confinement of transportation prisoners under sec
32 of the Prisoners Act 1900 could not be the places in the jails but must be some place or places outside the jails
In other words the contention was that under the power for confinement of transportation prisoners the State Government cannot appoint jails as the 782 places  for their confinement
We fail to appreciate as to why such a qualification or limitation on the power of the State Government under sec
32 should be read into with section
Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the places for confinement of transportation prisoners
Counsel relied upon two decisions of Lahore High Court in Kundan Lal and others vs Emperor1 and in Re
Khairati Ram 2 to support his contention but in our view neither of these decisions lays down anything as suggested by Counsel
In both the cases the court was concerned with the question as to where should an approver to whom dardon has been tendered under sec
337 of Cr
PC 1898 should be kept during an inquiry or trial and all that the Lahore High Court has held is that he must be detained in judicial custody in prison which includes a judicial lock up and not in custody of the police and in both the cases a direction issued by the local Government under sec
514 1 of Cr
PC 1898 for keeping such approvers in Lahore Fort under police control was declared illegal and ultra vires
Neither of these decisions is an authority for the proposition that in the exercise of the power conferred under sec
32 of Prisoners Act 1900 the State Government cannot constitute or appoint jails within its territory as the places for confinement for transportation prisoners
Moreover as we shall point out later Paragraph 719 of the Punjab Jail Manual clearly shows that by several Notifications or Orders issued by the Punjab Government certain local jails within the Province have been constituted the places under sec
32 of the Act for confinement of transportation prisoners
It is thus clear that under sec
32 of Act III of 1900 a sentence of transportation either for a term or for life could be and a sentence of life imprisonment can be made executable in local jails by constituting such jails as the places  within the meaning of sec
32 under orders of the State Governments
Apart from sec
32 of the Prisoners Act sec 383 of Cr
PC 1898 and sec
418 of Cr P C 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails
Both the sections appear in a Chapter dealing with Execution of Sentences  under the respective codes and are identically worded and each one 783 provides that where the accused is sentenced to imprisonment for life the Court passing the sentence shall forthwith forward the warrant to the Jail or other place in which he is or is to be confined and unless the accused is already confined in such jail or other place shall forward him to such jail or other place with the warrant
It is obvious that the confinement  of the convict in the jail pursuant to the Court s warrant issued under the sections is for the purpose of executing or carrying out of the sentence
The proviso to sub sec
1 of sec
418 and sub sec
2 of sec
418 make this position abundantly clear that the expression confinement  has been used in the sense of execution or carrying out of the sentence
Some argument based on the concerned forms of Warrant of Commitment prescribed under both the Codes of 1898 and 1973 was made by Counsel for the petitioner but it is obvious that nonprescription of appropriate forms of Warrant of Commitment would not affect the legality of the detention in local jails so long as the requisite legal authority and power in that behalf is vested in the Criminal Court
Moreover the forms prescribed under the Codes cannot be regarded as exhaustive and an appropriate Warrant of Commitment directing the execution or carrying out of sentence of life imprisonment in jail could be adopted and issued by the Court so long as in law the requisite authority and power in that behalf is vested in the court
Paragraph 719 of the Punjab Jail Manual as published in 1916 ran thus 719
Places of confinement for transportation prisoners Every prisoner sentenced to transportation for a term or for life if ineligible for deportation to the Andamans shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportation prisoners within the Punjab under section 32 of Act III of 1900 namely The Lahore Borstal Central Jail and the Central Jails and Lahore Montgomery and Multan the District Jails at Ambala and Multan and the Lahore Female Jail
 In the margin reference has been given to several Notifications of Punjab Government specifying the jails named in the Paragraph
It appears that Paragraph 719 itself was amended some time later when it was done Counsel was unable to state but presumably 784 before transportation for life  was substituted by imprisonment for life  and the words if ineligible for deportation to the Andamans were deleted for the amended Para 719 as appearing in Punjab Jail Manual published in 1975 runs thus  719
Places of Confinement for transportation Prisoners Every prisoner sentenced to transportation for a term of years or for life shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportation prisoners within the Punjab under section 32 of Act III of 1900 namely The Central Jails at Ambala and Ferozepur the Borstal Institution and Juvenile Jail Faridkot women s section District Jail Ludhiana in the case of women prisoners and District Jail Delhi
Here also in the margin reference is given to various Government Notifications specifying the Jails named in the Paragraph
It will thus appear clear that since after the deletion of the words if ineligible for deportation to Andamans in the Paragraph 719 so far as the Punjab is concerned no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails which were the appointed places envisaged under sec
32 of Act III of 1900
It is thus clear that in course of time the sentence of transportation either for a term or for life became executable in jails within the country and the same position must obtain in regard to persons sentenced to imprisonment for life on and after 1 1 1956 in view of sec
53A IPC inserted by the Amending Act 26 of 1955
The first premise on which the petitioner s claim to immediate release rests is thus not valid
As regards the nature of punishment required to be suffered under the sentence of imprisonment for life  substituted for transportation  by the Amending Act 26 of 1955 Counsel for the petitioner urged that its nature not having been defined anywhere it cannot be equated to rigorous imprisonment for life 
The argument was that the Amending Act 26 of 1955 did not change the nature of the punishment required to be suffered under either and like the sentence of transportation for life 
the sentence of imprisonment for life  remains distinct from the punishment of rigorous or simple imprisonment  enlisted at item Fourthly  in section 53 IPC
Counsel pointed out that both in the Indian Penal 785 Code as well as the Criminal Procedure Codes of 1898 as well as of 1973 a distinction has been maintained between imprisonment for life  and imprisonment for a term  and it is only the latter which can be either rigorous  or simple  depending upon the Court s direction given at the time of sentencing the accused under section 60 IPC and there is nothing either in the Penal Code or Procedure Codes which indicates that imprisonment for life  is or would be necessarily rigorous
It is not possible to accept this contention for the reasons which we shall presently indicate
In the first place implicit in the argument so advanced by counsel for the petitioner is the acceptance of the position that the earlier sentence of transportation for life  and the substituted sentence of imprisonment for life  are similar as regards the nature of punishment required to be suffered by the convict under either
If therefore there is sufficient statutory material or material having the force of law to show that the sentence of transportation either for life or for a term involved exaction of hard labour from the convict while undergoing the sentence the contention must obviously fail
It is well known that transportation to overseas penal settlement always implied hard labour for the concerned convicts and hence deportation beyond the seas popularly called Black water  was the most dreaded punishment in India not without reason
Section 59 of the Prisons Act 9 of 1894 an enactment made for amending the law relating to prisons with a view to prescribe uniform system of prison management in India initially conferred power on the Governer General in Council and later since 1937 confers power on the State Governments to make rules consistent with the Act in regard to the various matters inter alia under cl
14 thereof rules could be made for classifying and prescribing the forms of labour and regulating the periods of rest from labour and it appears that requisite rules in that behalf have been made by the authorities on whom the power had been or has been conferred
Counsel for the respondent has referred us to Andaman and Nicobar Manual  a Government of India Publication of the year 1908 which contains several rules regulations and orders governing the Management and Control of the Penal Settlement at Port Blair and Nicobar Islands
Section 1 2 of the Manual states that the Penal Settlements of Port Blair and Nicobar Islands have been specially appointed as the places  within the meaning of s33 of Prisoners Act 5 of 1871 which is equivalent to section 32 of Prisoners Act 3 of 1900 and term as well as life convicts are permitted to be transported to them while section 1 3 states that 786 the barracks and other places used for the confinement of prisoners at Port Blair have also been declared prisons for the confinement of convicts sentenced to penal servitude
Chapter II deals with classification of convicts and section 17 is very important which runs thus 17 1 By section 34 Act V of 1871 the Governor General in Council may from time to time prescribe rules as to the classification of transported convicts
2 The rules so sanctioned by the Government of India for the classification of convicts are comprised in the following orders 3 Transportation entails hard labour under strict discipline with only such food as is necessary for health
Any mitigation of the above is an indulgence which may at any time be withdrawn in whole or in parts
Sub cl
3 of section 17 in substance gives the interpretation of the expression transportation  and in terms states that transportation means hard labour under strict discipline subject to such indulgence as may be granted or withdrawn from time to time
Sections 24 and 25 provide for classification and grades of prisoners on their arrival in the penal Settlement
Section 146 which prescribes hours of labour says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily including the time of going to and returning from work as far as practicable
These provisions of the Andaman and Nicobar Jail Manual clearly bring out the fact that the sentence of transportation either for life or for a term inexorably mean rigorous imprisonment in the sense of exaction of hard labour from the convict
This position has been judicially noticed and accepted by the Privy Council in Pandit Kishori Lal s case supra where while elaborately dealing with the history of the sentence of transportation the Privy council has clearly observed that both in England and in India transportation prisoners when deported beyond the seas were subjected to conditions of hard labour under strict discipline
Relying on section 58 IPC and other statutory provisions the Privy Council also concluded that even when it was made to suffer inside a local jail within the country transportations meant rigorous imprisonment
Therefore on counsel s own argument the two being similar in nature the sentence of imprisonment for life must mean rigorous imprisonment for life
787 Secondly by the Amending Act 26 of 1955 a new section 53 A has been added to the IPC which in our view clinches the matter beyond any doubt because sub section
2 read with sub section
1 thereof affords a clear indication by necessary implication that a sentence of imprisonment for life  must be regarded as equivalent to rigorous imprisonment for life 
It is obvious that section 53A is in the nature of an Interpretation Clause  for in terms it deals with how a sentence of transportation for life or for a term  should be construed in penal jurisprudence
Sub section
1 provides that any reference to transportation for life  in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed shall be construed as a reference to imprisonment for life 
Sub section
2 runs thus 2 In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure Amendment Act 1955 the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term
Under this provision Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term
If transportation for a term has been equated to rigorous imprisonment for the same term by necessary implication the sentence of transportation for life  now substituted by imprisonment life  which is awardable for more serious or more grave or more heinous crimes must mean rigorous imprisonment for life that is to say it cannot be anything but rigorous
Counsel for the petitioner however pointed out that sub section
2 only deals with a sentence of transportation for a term and not with transportation or imprisonment for life and that the provision is applicable to only sentences of transportation for a term awarded prior to 111956
This is undoubtedly true but that would not affect the question whether the provision gives the requisite guidance on the nature of punishment intended to be inflicted on the convicts sentenced to imprisonment for life and such guidance is clear by necessary implication
In our view the legislative intent has been clearly spelt out and expressed that the nature of punishment required to be suffered under a sentence of imprisonment for life  awardable on and after 111956 is rigorous imprisonment
788 That this is how section 53 A 2 of IPC was construed by this Court is clear from the decision in Gopal Godse s case supra
Facts of that case shortly stated were these Gopal Godse was sentenced to transportation for life by a Judge of the Special Court Red Fort Delhi on 10th February 1949
After undergoing 20 years rigorous imprisonment together with the remissions he challenged the legality of his continued detention claiming that he had served his sentence and was therefore entitled to be released
One of the questions posed by the Court for its determination was Whether the petitioner Gopal Godse who was sentenced to transportation for life and whose sentence had not been commuted under section 55 of the IPC or under section 402 1 Cr
PC could be dealt legally as if he were a person sentenced to rigorous imprisonment After approving the Privy Council in decision Pandit Kishori Lal s case supra which was based on section 58 IPC and other statutory provisions this Court answered the question in the affirmative solely basing its conclusion on the provisions contained in section 53 A 2 a provision added by the Amending Act 26 of 1955 with effect from 111956
After setting out the provisions the court observed thus Whatever justification there might have been for the contention that a person sentenced to transportation could not be legally made to undergo rigorous imprisonment in a jail in India except temporarily till he was so transported subsequent to the said amendment there is non under that section a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term  It may significantly be pointed out that Gopal Godse s sentence of transportation for life had been passed on 10th February 1949 ie prior to the coming into force of the Amending Act 26 of 1955 and the question had come up for consideration before this Court in January 1961 long after the Amending Act had come into force whereunder the sentence of imprisonment for life had been substituted for transportation with the result that this Court had to and did rely on section 53A 2 for its conclusion
In other words this Court in that case equated the sentence of transportation for life which continued as imprisonment for life on and after 111956 to rigorous imprisonment for life
It may be pointed out that even thereafter there is no dearth of judicial precedents where in the matter of nature of punishment 789 imprisonment for life has been regarded as equivalent to rigorous imprisonment for life
In State of Madhya Pradesh vs Ahmadulla1 this Court after reversing the judgment of acquittal recorded by the High Court on a charge of murder imposed the following sentence But taking into account the fact that the accused has been acquitted by the Sessions Judge an order which was affirmed by the High Court we consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life
Again in the celebrated case of KM Nanavati vs State of Maharastra2 second Nanavati case the Bombay High Court had sentenced the accused expressly to rigorous imprisonment for life and this Court while dismissing the appeal upheld the sentence as being correctly awarded
During the hearing our attention was invited to a decision of the Kerala High Court in Mathammal Saraswathi vs The State3 where that High Court has taken the view that while passing the sentence of imprisonment for life a Criminal
Court should keep in view the provisions of section 60 of IPC and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused and went on to clarify the position by stating that the imprisonment for life in that case shall be simple imprisonment and not rigorous
It is not possible to sustain the aforesaid view of the Kerala High Court
In the first place a distinction between imprisonment for life  and imprisonment for a term  has been maintained in the Penal Code in several of its provisions
Secondly by its very terms section 60 is applicable to a case where an offender is punishable with imprisonment which may be of either description and it is only in such case that it is competent for the court to direct that such imprisonment shall be either wholly rigorous or wholly simple or that any part of such imprisonment shall be rigorous and the rest simple
And it is clear that whenever an offender is punishable with imprisonment for life he is not punishable with imprisonment which may be of either description in other worns section 60 would be inapplicable
790 However for the reasons discussed above and in view of the authoritative pronouncements made by the Privy Council and this Court in Pandit Kishori Lal s case and Gopal Godse s case respectively it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life
In this view of the matter the recommendation of the Law Commission contained in its 39th and 42nd Reports suggesting a suitable amendment in the Indian Penal Code will have to be regarded as having been made only for a purpose of removal of doubts and clarifying or declaring the existing legal position
Presumably for that reason the suggested amendment has not been regarded as absolutely necessary and therefore not put through so far
Having regard to the aforesaid discussion none of the ground on which the petitioner s claim to immediate release rest can be held to be valid and therefore in the absence of any order of commutation having been passed either under section 55 IPC or section 433 b of Cr P C 1973 the petitioner is not entitled to be released
Rule is therefore discharged
HLC Petition dismissed


Summary:
The petitioner had been originally sentenced to death under section 302 IPC but on a mercy petition preferred by him the sentence had been commuted to imprisonment for life 
He had undergone actual rigorous imprisonment of 11 years 5 months and 10 days but inclusive of remissions the total imprisonment worked out to 22 years 2 months and 17 days
In support of the claim that the petitioner should be released forthwith it was contended i The detention in jail  of a person under imprisonment for life  is unlawful because after the enactment of section 117 of the Cr
PC Amendment Act 26 of 1955 though persons who commit murder have been made liable to the newly substituted punishment of imprisonment for life  instead of the earlier sentence of transportation for life  under section 302 IPC read with Secondly  of section 53 IPC this new sentence has not been made legally executable in jail and like the sentence of transportation for life  it remains executable by way of banishment or exile to the places  envisaged 771 under section 32 of the Prisoners Act 1900 ii The Amending Act 26 of 1955 did not change the nature of punishment formerly known as transportation for life  by calling it imprisonment for life  and the latter like the former remains distinct from the punishment of rigorous or simple imprisonment  enlisted at item Fourthly  in section 53 IPC and it is only the punishment enlisted at item Fourthly  which must mean imprisonment for a term  that can be executed in jail either in rigorous manner or simple iii Since the sentence of imprisonment for life  can be executed only by the convict being removed to the place or places  required to be appointed under section 32 of the Prisoners Act 1900 and since no such place or places  have been appointed under the aforesaid provision by the State Government the executing authorities are obliged by the present state of the law to execute  or carry out  the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under section 55 IPC or section 433 b Cr PC 1973 and iv Although no such formal order of commutation had been passed in the case the petitioner having been subjected to rigorous imprisonment for a period of 14 years the State Government should be deemed to have passed such an order
Counsel for respondents contended 1 that on both the aspects touching the punishment of imprisonment for life  namely the place of its executability as well as its nature the contentions urged on behalf of the petitioners have been concluded by Pandit Kishori Lal s and Gopal Godse s cases ii that since the sentence of imprisonment for life  can be legally executed in jails within the country there is no question of releasing the petitioner forthwith in the absence of an order of commutation passed by the State Government either under section 55 IPC or section 433 b Cr PC 1973 simply because he has served 14 years  of rigorous imprisonment
Dismissing the Petition  HELD 1
Since the petitioner s sentence has not been commuted for imprisonment for a term not exceeding 14 years either under section 55 IPC or section 433 b Cr
PC 1973 by the appropriate Government he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godse s case
790 D Gopal Godse s case   referred to
The sentence of transportation  either for a term or for life was executable in jails within the country
The same position must obtain in regard to persons sentenced to imprisonment for life  on or after January 1 1956
784 F 1 The law on the point has been clearly enunciated in Pandit Kishori Lal s case where the Privy Council held that a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners
There is no force in the contention that the provisions of law referred to by the Privy Council for basing this conclusion did not warrant the said conclusion778 H 779G Pandit Kishori Lal s case AIR 1945 PC 64 referred to
ii Even prior to the coming into force of the Amending Act 26 of 1955 ieprior to January 1 1956 all prisoners sentenced to transportation for a 772 term of years or for life were not invariably deported to the overseas penal settlement in the Andamans
Transportation prisoners were divided into two categories namely those who were eligible for deportation and those who were not who generally included convicts suffering from specified diseases or infirmities and only the former were deported to Andamans while the latter were transferred to and confined in one or the other jails within the country under section 32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order section 55 IPC or section 780 F H iii Under section 32 of the Prisoners Act 1900 the State Government has been empowered to appoint places within the State and places in other States with their consent where transportation prisoners could be lodged for undergoing their sentences
It is obvious that the expression confinement  occurring in the marginal note of the section means the prisoners  detention in the place for the purpose of executing or carrying out their sentence
Having regard to the unqualified and clear language of the section there is no reason why the State Governments cannot appoint jails as the places  for confinement of transportation prisoners
A sentence of transportation  either for a term or for life could be and a sentence of imprisonment for life can be made executable in local jails by constituting such jails as the places  within the meaning of section 32 under orders of the State Governments
781 F 782 F Kundan Lal  Ors
vs Emperor AIR 1931 Lahore 353 and Re Khairati Ram AIR 1931 Lahore 476 distinguished
iv Paragraph 719 of the Punjab Jail Manual as published in 1916 provided that every prisoner sentenced to transportation for a term or for life if ineligible for deportation to the Andamans shall be transferred to and confined in one or other of the jails specified therein which were constituted places  for the detention of transportation prisoners within the Punjab under section 32 of the Prisoners Act 1900
This paragraph was amended some time later and the words if ineligible for deportation to the Andamans were deleted as is evident from the amended Para 719 appearing in the Punjab Jail Manual published in 1975
It is therefore clear that since then so far as Punjab is concerned no transportation prisoner was deported overseas and all transportation prisoners were detained and confined in local jails
783 F 784 E v Section and section also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails
Both the sections appear in a chapter dealing with Execution of Sentences  under the respective Codes and are identically worded
It is obvious that the confinement  of the convict in jail pursuant to the Court s warrant issued under the sections is for the purpose of executing or carrying out the sentence
The proviso to sub section
1 of section 418 and sub section
2 of section 418 make the position abundantly clear that the expression confinement  has been used in the sense of execution or carrying out of the sentence
782 G 783 C 773 3
The position in law as regards the nature of punishment involved in a sentence of imprisonment for life  is well settled
The sentence of imprisonment for life has to be equated with rigorous imprisonment for life
790 B i Transportation to overseas penal settlement always implied hard labour for the concerned convicts
Sub section
3 of section 17 of the Andaman and Nicobar Manual  a Government of India publication of the year 1908 states that transportation means hard labour under strict discipline
Section 146 says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily
These provisions clearly bring out the fact that the sentence of transportation either for life or for a term inexorably ment rigorous imprisonment in the sense of exaction of hard labour from the convict
This position has been judicially noticed in Pandit Kishori Lal s case
Therefore on Counsel s own argument the sentences of transportation for life  and imprisonment for life  being similar in nature the sentence of imprisonment for life  must mean rigorous imprisonment for life 
786 E H Pandit Kishori Lal s case AIR 1945 PC 64 referred to
ii Sub section
1 of section 53 A provides that any reference to transportation for life  in any other law for the time being in force or in any instrument or order having effect by virtue of any such law or of any enactment repealed shall be construed as a reference to imprisonment for life 
Under sub section
2 of section 53 A IPC Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term
If transportation for a term has been equated to rigorous imprisonment for the same term by necessary implication the sentence of transportation for life  now substituted by imprisonment for life  which is awardable for more serious or more grave or more heinous crimes must mean rigorous imprisonment for life
787 A F Gopal Godse s ease   State of Madhya Pradesh vs Ahmadulla   and KM Nanavati vs State of Maharashtra  referred to
It is not possible to sustain the view that while passing the sentence of imprisonment for life a criminal court should keep in view the provisions of s60 IPC and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused
In the first place a distinction between imprisonment for life  and imprisonment for a term  has been maintained in the Penal Code in several of its provisions
Secondly by its very terms section 60 is applicable to a case where an offender is punishable with imprisonment which may be of either description
And it is clear that whenever an offender is punishable with imprisonment for life he is not punishable with imprisonment which may be of either description in other words section 60 would be inapplicable
789 D H Mathammal Saraswathi vs The State AIR 1957 Kerala 102 overruled