445 A

kARTAR StNGH ANO OTHERS

STATE OF HARYANA THROUGH INSPECTOR

GENERAL QF PRISON, CHANDIGARH

August 26, 1982'

[V.D. TULZAPURKAR, BAHARUL lsLAM AND

R.B. MISRA, JJ.]

Criminal Procedure Code-s. 428-App/icability to persons sentenced to imprisonment for life-construction of .

Under s. 428. Cr. P.C., an accused perSQn sentenced to imprisonment for

a term is entitled to set oft' bis under-trial period of detention against the sen- D tence imposed upon him.

The petitioners were life-convicts undergoing sentence in different Jails in Haryana. Under _para 516-B of the Punjab/Haryalla Jail Manual they were entitled to be considered for premature release on their completing 8-1/2 years of substantive imprionment and 14 years of imprisonment including remissions.

According tri the petitioners, if.the period.of their unde_r-trial detention was added to their' total Period of imprisonment including remissions, the total detention would exceed 14 years and thCir continued deteritionwould be illegal. In Maru Ram v: Union of India and Anr., [1981] 1 _S.C.R. 1196 it bad been held that the mandatory minimum of 14 years' actual imprisonment specified ins. 433-A, Cr.

P.C., would not '.operate against those 'lifers' 'YhoSe conviction by the court of first instance had been entered prior to 18th December," 1978, and that they woula bO entitled to consideration by Government f0r premature release on the strength of the remissions earned under the relevant rules. The Government ofHaryana had bY its Order dated 2nd "February, 1981, decided that the benefit of the period of under-trial detention should not be given to lire-convicts who had been convicted before 18th December, 1978. The petitioners submittCd that .the said order was invalid for the reason that it wrongfully .. denied to the1n the benefit of the set oO: contemplated under s. 428, Cr. P.C.

Counsel for the petitioners contended that cases of life-convicts would fal1 within the terms of s. 428 as :

(i) persons sentenced to imprisonment for life could be said to have been sentenced to their lifeterm which under the provisions of the Penal Code and Jail Manual was regard"ed as eqwivalent to 20 years or !4ye!ll'81

SU~REMil COURT Rffi; oRTS (1983] l s.c.ii. . . .

(ii) . when remissions are actually granted to life-convicts their sentences become imprisonments for. a term;

• (iii) when convicts other than lifeconvicts were entitled to the benefit of the set off contemplated under the section there was ho reaSon why lifeconvicts should be denied that advantage.

Dismissing the petition,

HELD: On a plain reading of s. 428, Cr. P.C., it is clear that the cases of the petitioners, who have been sentenced to imprisonment for life, would not fall within the section, for, the section applies to an accused person whohas on conviction been sentenced to imprisonment for. a tem. [450 H; 451 A]

(b) A perusal .of Several sections of the Indian Penal Code as well as Criminal Procedure Code would show that both the Codes make and maintain a clear distinction between HjmprisoD.me.nt for life'' and "imprisonment for a term"; in -fact, the two expressions "imprisonment _for life" and "impi:isonment for a term" have been used in, contradistinction with each other in one and the satne section, where the former must mean imprisonment for the remainder of the natural life of the convict and latter must mean imprisonment for a definite or fixed period: Having regard to such distinction which is being maintained in botbthe Codes; it will be diffictilt to slur over the distinction on the basis that life-convicts should be regarded as having been sentenced to a life. term or to say that the two could be understood as irlterchangeable expressions because, basically, the life-term of any accused 'is uncertain. Section 57. I.P.C. or the Remission Rules contained in Jail Manuals are irrelevanl in this context.

It is weJI settfed that a Sentence for imprisonment for life must be treated as imprisonment for the whole of the remaining period of the convicted person's natural life. [4_51 F-H; 452 D-E; 452 G; 453 A]

Kishori Lal v. Emperor; A.LR. [1945] P.C. 64; Gopal Vinayak Godse v.

The State of Maharashtra [1961] 3 S.C.R. 440; Maru Ram v. The Union of India and Anr. [1981] l S.C.R. 1196; and State of Madhya Pradesh v. Ratan Singh & Ors .• [1976] Supp. S.C.R. 552, referred to. ·

(c) An order nf remisSioo passed by the State Government or:_ by the Jail Authorities does not interfere with either the conviction or sentence recorded by the court which remains intact; itmerely affects the execution of the sentence passed by the Court and frees the convicted. person from his liability to undergo the full term of imprisonment and it is for this reason that an accused person bas every right to press his appeal against the conviction. and sentenceimpo, ed upon hini, full I-emission notwithstanding. Moreover, S. 428, opens with the words "where an accused person has, on conviction, been sentenced to imprisonment for a term" and as such the section will,.come into play in cases where "imprisonmnt for a term 0 . is awarded on conviction by a .court and not where tbe convict's sentence becomes a sentence for a term on remission being granted by the Executive. [453 C-F]-

. , A j

P!fllawwa v. The State of Mysore: A.LR. 1959 Mysore 116, approved.

(d) The question is Dot whther the beneficent provisiOn should bC xtended to life-conv_icts on a priori reasoning or equitable consideration but whether on. true construction the section comprises life-convicts within its purview and on construction it is not possible to hold that it does. The objects and reasons for

iotr0dul;'.ing s. 428 anew in the Code, as set out by the'. Joint Committee in its

Report, clearly show 1hat cases of life-convicts were'never'itended to be covred

. B by the provision. [453-G; 454-A-B] - ' -

Ka/idas Vanmalibharv. State of Gujarat& ; lnr., (1980] 21 Gi- Law-Reporter, 7, overruled .

KQnthalot Karunan &others v. State of Kergla,(1915) K.L.T. 147: Rajahusein Gu/amhusein Lakhani v. The Sate of Maharashtra ,(1976) Crl. LJ. 1294; Rafiq Abdul Rehman v, The State of Maharashtra, (1978) Cr.I. L.J. 214 and Bhimsen

v. The State of Rajasthan 1977Crl. L.J, 696, approved.

ORIGINAL JuRiSDICTION: - Writ Petition (Cr!.) No. 3226 of 1981.

(Under Article .32 of the Constitution of India)

R.C. Kohli for the Petitioners.

KG. Bhagat and R.N. Poddar for the Respondent.

. The Judgent of th!' Court was delivered b_y

(I) [198lJ I SCR _1196.

' c

has held the section to be prospective in effect, that is to say, the mandatory minimum of 14 years' actual imprisonment specified therein will not operate against. those whose cases were decided by the trial court before 18th December, 1978 when the section came into force and that all 'lifers' whose conviction by the court of the • first instance was entered prior to that date would be entitled to consideration by Government for pre-mature release on the strength of the remissions earned under the relevant rules and according to them under Para 516-B of the Punjab/Haryana Jail Manual life convicts below the age of 20 at the da\e of their conviction arc entitled to be consiqered for pre-mature release on their completing 6 years of substantive imprisonment and 10 years of imprisonment including remissions while life convicts above the age of 20 at the date of their conviction's are entitled to be considered for premature releas, e on their completing 8lo,; years of substantive imprisonment and 14 years of imprisonment including remissions.

The petitioners say that their case falls in the second category and according to them they are entitled to be considered for premature release. if to their total period of imprisonment inclusive of remissions is added the period of their under-trial' detention (which in the case of the first two petitioners is 612 days and in the case of the third petitione"r is 2 years 1 month and 14 days) as on such reckoning tlie total detention exceeds 14 years and their continued detention is illegal ; but the Respondent State has issued an Order No. 1953/59/Gl/G 3/T-19

(II) dated 2nd February, 1981 to all Jail Superintendents ip the State whereunder instructions have been issued that for the purpose of considering cases of pre-mature release whiJe calculating 8-1/2 years substantive sentence and 14 years imprisonment including remissions the benefit of under-trial period is not to be given to life convicts who have been convicted before !8th.December, 1978. The petitioners have challenged the legality and/or validity of the said Order as being contrary to law and yiolative of Arts. 14 a_nd 21 of the Constitution. In substance the petitioners have contended that the said Order illegally and wrongfully denies to life convicts the • benefit of a set-off contemplated under sec. 421 Cr. P.C. and there fore the petitioners have sought a mandamus directing the Respondent State to consider their cases for release under Para -516-B of the · Punjab/Haryana Jail Mlnual after giving them the benefit of said set-off against their sentences.

' In the counter-affidavit filed on behalf of the Respondent State the legal position obtaining as a resul I of this Gourt's decisioq

, ,

in Maru Ram's case (supra) has been accepted; similarly the effect of Para 516-B of the Punjab/Haryana Jail Manual as set out by .te petitioners is also accepted. It is however, denied that the Order No. 1953/59/Gl/G.3/Tl9(11) dateq 2nd February,-1981 is illegal or invalid for any reason or is contrary to sec. 428, 9. P.C.

It has been ontended that the benefit of a set-off contemplated by sec. 428 Cr. P.C. is not available to life convicts bub is available to those convicts who have been S\lntenced to imprisonment for a term and therefore far from being .contrary to any law the impugned order is in accord with the provisions of sec. 428 Cr. P.C. and since the periods of (heir under-trial detention are not to be reckoned or set off against their sentences the petitioners' cases could not be said to have become ripe for consideration for pre-mature release. Even otherwise, according to the Respondent-State the petitioners' cases have not become ripe for such consideration because the periods of substantive or actual imprisonment, the. remissions earned and the periods of under-trial detention as set out by the petitioners are not correct.

According to the Respondent-State in the case of K:artar Singh the net period of substantive or actual imprisonment is 6 years 9 months and 11 days, the remissions earned by him amount to 4 years 5 months a!Jd 24 days, to which even if the period of undertrial -detention, which is 1 year 8 months and 4 days, is added the total comes to 12 years, 11 months and 9 days and not 14 years as required by Para 516-B of the Punjab/Haryana Jail Manual; in the case of Mukhtiar Singh the. net period of substantive or actual imprisonment is 7 years, zero month and six days, the remissions earned by him amount to 4 years, 7 months and JO days, to which even if the period of under-trial detention which is 1 year, 8 moriths and 4 days is added the totai comes to 13 years, 3 months and 20 qays and not 14 years as required by the said Para 516.-B; in the case of Baljit Singh the net substantive or actual imprisonment under gone by him is 4 years, 9 months and IO days, the re nissions earned by him amount to 3 years, 8 months, 11 days, to which even if the period of under-trial detention which is 2 years, 1 month and 13 days is added the total comes to IO years, 7 months and 4 days and not 14 years as required by the said Para 516-B. In any event, therefore, none of the petitioners is entitled to have his case considred for pre-mature release and therefore the petition is liable to be dismissed.

Since tlie legal question touching the proper construction c;>f

sec. 428 Cr. PC. was argued at length by counsel on either side at the Bar we have decided to address ourselves to that question without getting lost in the factual dispute as t.:i whether even after reckoning the periodsof their under trial detntfon the petitioners are or are not entitled to have their C!l; ses considered by the State Government for pre-mature release under Para 516-B of the Punjab/Haryana Jail Manual. In other words for the purpose of deciding the q'uestion we shall proceed on the assumption ihat factually if the periods of their under-trial detention are taken into acount the petitionrs would be entitled to have their cases considered for premature release. The question is whether even on such assumed factual basis the petitioners are in law_ e.ntitled to get a set dff of the said periods against their sente.nces under sec. 428 of the Cr. P.C. and if so, whether the impugned Order dated 2nd February, 198·1 issued by the

Respondent-State is il)egal or invalid.

At the outset it may be stated that the impugned Order dated 2nd February, 1981 is challenged as contravening sec. 428 but the constitutional validity of sec. 428 itself bas not been challenged.

Admittedly all the tliree petitioners have been convicted under sec. 302, IPC and have been sentenced to imprisonment for life and the question is whether sec. 428 Cr. P.C. is applicable to them. Sec. 428 runs thus: '

428. Period of detention undergone by the accused.to be set ofl against the sentence of imprisonment.'

 Where an accused person bas. on cpnviction, been sentenced to imprisonment for a term; the pefiod "of . detention; if any, undergone by him during the investigation, inquiry or trial of the same case and before the date-of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any of the term .of imprisonment imposed on him.

On a plain reading of the aforesaid provision it will be clear that the cases of the petitioners, who have been sentenced to imprisonment for life, would not fall within the sectio11, for, the section applies to an accused person who bas on conviclion, been sentenced to imprison-

-· i

'-.

ment for a term and it is only in cases of such persons who have. been sentenced t,;-imprisonnient for a term that the period of thir nndcr-trial detention has to be set off against tho term of tfie imprisonment imposed upon them and the .liability. of such persos to undergo imprisonment has to be restricted to the remainder, if any, imposed upon them. Counsel for the petitioners, however, raised a two fold cont, ntion. In the first place, he contended that persons sentenced to imprisonment.for life could be said to have been sentenced to their life term which under the pr9visions ohhe Penal Code ·(section 57) and Jail Manuals (Para 716-B) are regarded as equivalent to 20 yeas or 14 years and as sch cases of life convicts would fall Within the terms of sec: 428.

Secondly, in any event when remissions are act.ually granted by the State Government under sec. 432 Cr. P.C. or by the Jail Authorities under the relevant remission rules contained in Jail Manuals tp life convicts their cases should be treated as falling within the purview of sec. 428, inasmuch as on the grant of remissions their.sentences become imprisonments for a term and since in the instant case each .one of the petitioners has been granted remissions each is entitled , to have.the benefit of the set off mentioned in sec. 428 of the Cr. P.C. and consequently the impugned order of 2nd February, 1981 issued by the Respondent Sta:te would be illegal or il)valid as contravening the section. To 'support his

; ' contention Counsel relied upon a docision of the Gujarat High Court in the case of Kalidas Vanmalibhaio v. State of Gujarat and Anr.(1) where that.Court has taken the ¥iew that a beneficent provision like theone contained in sec. 428 er: P.C. should be made available to convicts sentenced to life imprisonment. It is not possible to accept the submissions of Counsel f<?r the reasons which we shall

presntly indicate. ·

\ .

I In the first place a perusal of several sections of the Indian' Penal Code as well as Criminal Procedure Code will show that both the Codes make and maintfin a clear distinction between imprisonment for life and imprisonment for a term; in fact, the t,,; o expres- . sions 'imprisonment for life' and '.imprisonment for a term' have been' used in contra-distinction with each.other in ne and the same section, where the former must mean imprison men! for the remain . der of the natural life of the convict (vi.de: definition' of 'life' in s. 45

l., P.C:.) and the latter must mean imprisonment for a def\nite of fixed

(!) (1980) 21 Giij. Law Reportr. '/,

~ '

period. For instance sec. 304 I.P.C. provides that punishment for culpable homicide not amounting to murder shall be imprisonment for life or imprisonment of either description for a term which may extend to ten years'; section 305 provides.that punishment for abetment of a suicide ofa child or insane person shall be 'death or imprisonment for life or imprisonment for a term not. exceeding ten years'; section.307 prdvides that punishment for an attempt to commit murder accompanied by actual hurt shall be imprisonment for life or imprisonment of either description which mayextend to ten years; so also, voluntarily causing hurt in committing robbery is punishable under sec. 394 with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years. Sec. 55 I.P.C. uses the two expres sions in contra-distinction with each other and says that an appropriate Government may in every case in which sentence of imprison-· ment for life shall have been passed commute the punishment for imprisonment of either description for a term not exceeding fourteen years; similarly, section 433(b) Cr. P.C. uses the two expressions in contra-distinction with one another. Having regard to such distinction which is being maintained in both the Codes it ill , be difficult to slur over the distinction on the basis that life convicts should be . regarded. as having been sentenced to life-term or to say that the two could be understood as interchangeable expressions }"cause basically the life term of any accused is uncertain.

Further, sec. 57 I.P.C. or ._the Remission Rules contained in. Jail Manuals (e.g. Para 516-B of

Punjab)Haryana Jail Manual) are irrelevant in this context. Section 57 I.P.C. provides that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years for the specific purpose mentioned therein, namely, for the purpose of calculating fractions of terms of punishment and not for all purposes; similarly Remissions Rules contained in Jail Manuals cannot override statutory provisions contained in the Penal Code and the sentence of imprisonment for life will have fo be regarded as a sentence for the remainder of the natural life of the convict. The Privy Council in Randit Kishori La/'s(') case and this Court in Gopa/ Godse's(') case. have settled this position once and for all by taking the view that a sentence for transportation for life or.imprisonment for life must be treated. as transportation or imprisonment for the whole of the

(I) A.LR. 1945 PC 64.

(2) AIR 1961 SC 600.~[196113 SQR, 44C,

ICARTAR SINGH v. iJAll\'ANA (Tulzapurkar, J.} 453

, remaining period of the, convicted person's.natural life. This view has been confirmed and followed by this Court in two subsequent

decisions-inRatan Singh's(') case and Maru Ram'! case (supra).

In this view of the matter life convicts would not fall within the purview of sec. 428, Cr. P.C.

The next submission that at least cases of life convicts who have been ac.tually granted remissions either by the State Government under sec. 432 Cr. P.C. or by Jail Authorities under the relevant Remission Rules should be treated as falling within the purview i>f sec. 428 because on the grant of remissions, their sentences become sentences of imprisonment for a term is also without any substance. The argument is fallacious for two reason~. In the first place, an order of remission passed by the State Government or by' the Jail Authorities does not interfere with either the conviction Or sentence . recorded by the Court which remains intact; it merely affects the execution 'of the sentence passed by the Court and frees the convicted person from his liabilhy to undergo the full term of imprisonment and it is for this reason that an accused person has every right to press his appeal against the conviction and sentence imposed upon him, full remissin notwithstanding. (Vide: Puttawwa v. The State of Mys01e( 2) secondly, sec. 428 opens with the words: "Where an accused peron has, on conviction, been sentenced to imprisonment for a term" and as such the section will come Into play in cases where 'imprisonment for a term' is awarded on conviction bY a court and not where the convict's sentence becomes a sentence for a terin on remission being granted by the Executive. In the latter case the section on its own terms would be inapplicable •

. -..

The last submission has been that if convicts other than life- F x.. convicts are entitled to the benefit of the set off under sec. 428, there ' is no reason why life convicts should be denied the advantage of this beneficial provision and in this behalf it was pointed out that such an argument has found favour with the Gujarat High Court in Ka/idas Vanmalibhqi's case (supra). In our view the question is nofwhether the beneficient provision should be extended to life- convicts on a priori reasoning or equitilble consideration but whether

U) (1976] Suppl. SCK 552.

(2) AIR 1959 Mysor~ 11~·.

SUPBEMB COURT REPORTS

(1983] I S.C.B.

on true construction the section comprises life convicts ithin its purview and on construction it is not possible to hold that they do.

Moreover, if the objects and reasons for introducing sec. 428 anew in the Code, .as set out by the Joint Committee in its Report are taken into account, it will appear clear that cases of life convicts were never intended. to be covered by the.provision. The Joint Comf mittee has stated the objects and reasons for introducing this provision in the Code thus :

"The Committee has noted the distressing fact that in many cases accused persons are kept in prisonfor a very long period a's upder-trial prisoners an~ in some cases the sentence of imprisonment ultimately awarded is a fraction of the period spent in Jail as under-trial prisoner. Indeed, there may even be cases where uch a person is acqui\ted. No doubt, sometimes courts do take into account the period of detention undergone as under-trial prisoner when passing

- sentence and occasionally the senrence of imprisonment is restricted to the period already undergone. But this is not always the case so that in many cases, the accused person is made to suffer jail life for a period out of all proportion to the gravity of the offence or even to the punishment provided in the statute. The Committee has also noted that a large number of persons in the overcrowded jails of today are under-trial prisoners. 'The new clause seeks to remedy this unsatisfactory state of affairs."

It is obvious that the mischief sought to be remedied has no relevance where gravity of offence requires the imposition' of imprion

ment for life.

Having regard to the above discussion, it is clear that the benefit of the set off contemplated by sec. 428 Cr. P.C. would n'ot be available to life convicis.

In our view, the decision of the Gujarat High Court in the case of Kalidas .Yanma/ibhai is erroneous and the contrary view taken by Kerala High Court in Kanthalot Karunan & others v. State of Kera/a(') by Bombay High Court in Rajahusein Gulamhusein Lakhani v. the State of Maharashtra,(') Rafiq Abdul •·

" .

(1) (1975) KLT 137.

IZ) (1978) CRL. t;.J. 214.

.) ,.

KARTAR SINGH v. HARYANA (Tu/zapurkar, J.) 455

Rehman v. The State of Maharashtra(') and by Rajasthan High Court in Bhimsen v. The State of Rajasthan( 2 ) is correct. in this view of the matter, the impugned order dated 2nd February, 1982 passed by the Respondent-State, being in conformity with sec. 428 Cr. P.c.; i~ perfectly legal and valid.

In the result, the writ ptition is dismissed. B

H.L.C.

Petitions dismissed.

(I) 0976) Cr. L.J. 1294.

(2) (1977) Cr. L.J. 696.

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