BHAG!RATH & ORS

DELHI ADMINISTRATION

April 16, 1985

Code of Criminal Proccdurc1973. Section 428.

Persons sentenced to itn1nison111cnt for life-Whether e11tit/ed to set.Off 1heir under trial period of detentiun against their sentence.

Person sente11, ed to life [111prisonient-Whetlter sentenced to irnprison1ent fur 'ten11'.

lnterpertation of Statutes:

i\larginal note of Section-Use of in interpretation.

P11nishn1ent 110 longer retributory but reforniative.

Words & Phrases :

'Tem'-Meaning of-Crinfina/ Procedure Code 1973. Section 428.

The appellant filed a writ petition in the High Court, contending that his case b~ referred for the order of lh~ State Administration under Paragraph 516~ B of the Punjab Jail Manual,.on the ground that though sentenced t9 life impri sonment, he had unjergorn.: a p:riod of detention in Jail amouoting to 14 years together with the remission earned by him and that he should be released.

The aforesaid petition was rejected by a Single Jodge following the deci .. sion of this Court in Kartar Singh v. State of Haryana, [1983], 1 SCR 445 on the ground, lhat in colnputing the period of 14 years, the period spent by the con- G vict in the jail as an undertrial pri5oner cannot be taken into account because section 428 of the Code of Criminal Procedure which allowed such a set-off applied only when ; in ac..; u5ed had b.!n sentenced to 'imprisonment for a term/ and that th~ sentence of life imprisonment was not an 'imprisonment for a

term.

Jn the companion writ petition, the petitioner contended that the remis-

:H.

sions earned by him as a convict must be takert into account while computing the period of 14 years under paragraph 516-8 of the Punjab Jail Manual, ani:) that in any case, ht ought to be given the benefit of sections 432 and 433 of the Code of Criminal Procedure because. his case merits a fav Jurable consideration by the State Administration.

Allowing the Appeal and Writ Petition,

' HELD: 1. The period of detention undergone by the two accused as undertrial prisoners, shall be set-off against the sentence of life imprisonment in1posed upon them, subject to the proviion contained in section 433A an~, provided tha! orders have ben passed by the appropriate authority under se~ tion 432 or section 433 of the Code of Criminal Procedure. [753C-D]

2. The fact that the term of life is of an uncertain duration docs not justify the conclusion that the sentence of imprison1nent for life is not for a term. [752C]

3. There can possibly be no dispute that a person sentenced to life imprisonment is sentenced to imprisonment. The term to which such person ha.s been sentenced is the term of his life. Therefore a person who is 1entenced t? life imprisonn1cnt, is sentenced to imprisonment for.a term. (752C]

4. Under section 432 of the Code of Criminal Procedure, the appropriate Government has the power to remit the whole or any part of the punishment to which a person has been sentenced. Under section 433 of the Code, the appro' priate Government has the power to commute the sentence of impriwnment for life to imprisonment for a term not exceding fourteen year.s or to fine. The question of setting off the period of detention und(:rgone by an accused as an undertrial prioner against the eatence of life imprisonn1ent can arise only if a1) order is passed by the appropriate authority und::r section 432 or section 433 of the Cod;;-. In the absence of such an order passed g!nerally or specially, and apart from the provisions if any, of the rdevant Jail Manual, imprisonment for life would mCan imprisonment for remainder of life. [7500-F]

S. The assumption that the word •term' implies a concept of ascertain~ ability r conveys a sense of certainty is contrary to the letter of the law, as found in section 428. Even the marginal note to the section does not bear out that assun1ption. It rather belies it. [748F]

6. Marginal notes are now legislative and not editorial cx:ercises. The marginal note of section 428 shows that the object of the Legislature in enacting the particular provision was to provide that 'the p:!riod of detention undergony

by the accused' should be 'set o!T against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the section or in its marginal note which would justify restricting the plain and natural meaning of

BHAGIRATH ' DELHI ADMN. 745

the word 'term• so as to com)rchcnd only sentences which arc imposed for a A fixed or ascertainable period. [748F~G] •

1. To Sly that a sentence of life imprisonment imposed upon an accused is a sentence for the term of his life does offence neither. to grammar nor to the common understanding of the word 'term'. To say otherwise would offend not only against the language of the statute but against the spirit of the law, that is to say, the object with which the law was passed. A large number of cases in which the accused suffer long undertrial detentions are cases punihable

with imprisonment for life. Usually, those who are liable to be sentenced to imprisonment for life are not enlarged on bail. To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large n1ajority of cases in which such benefit would be needed and justified.

[748H; 748A-B)

8. Equity sustains law and the twain must m<:et. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of bericficient provisions, particularly in the field of criminal Jaw.

To exclude such considerations is to denude law's benevolence of its true and lasting content. [752FJ

9. Graver the crime, longer the sentence and, longer the sentences, greater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative. [752FJ

Kartar Singh v. State of Haryana (1983] 1 SCR 445 over-ruled,

Sukhlal Hansda v. State of West Bengal, Writ Petitions (Crl.) 1128-29 of E 1982, Gopal Vinayak Godse v. The State of Maharashtra, [1961]

3 SCR 440, 444 & Maru Ra111 v.Union of India [1981] 1SCR1196 referred.

CRIMINAL APPELLATE JURISDICTION : Criminal Appe; i] No. 754 of 1983

From the Judgment and Order dated 5-7-1983 of the High Court ,, f Delhi in Crl. Misc. (Main) No. 499 of 1983.

AND

Writ Petition (Cd.) No. 1266 of 1982.

(Under Article 32 of the Constitution of India)

Mukul Mudga/ for the Appellant in Crl. Appeal No. 754 of 1983.

R, K. /ain, R.P. Singh, Suman Kapoor, D.$.Me'1ra and Miss H

SUPREME COURT REPOHS

[1985) 3 S.(.:.R.

Si:ngeeta Agga~11•a/ for the Petitioner in W.P. No. 1266 of 1982.

M.S. Ci(iral, G.D. Gupta, R.N. Poodar and Miss Halida Khalun, for the Respondent.

The Judgment of the Court was delivered by

CHANDRACHUD, C.J.

We have before us an appeal and a writ petition, which arc filed by two p,, rsons sentenced to life imprisonment for the offence of murder. They contend that they are entitled to the bone fit of Section 428 of t110 Code of Criminal Procedure, that is to say, that t!ie period of detention undergone by them prior to their conviction as undcrtrial prisoners must be set off against the sentence of life imprisonment imposed upon them.

The appellant, Bh.agirath, filed a petition in the Delhi High Court asking that his case be referred for the orders of the Delhi Administration under paragraph 516-B of the Punjab Jail Manual since, though sentenced to life imprisonment, he had undergone a period of detention in Jail amounting to 14 years together with the remissions earned by him.

A learned Single Judge of the Migh Court rejected that petition on the ground that, in computing the period of 14 years, the period spent by the convict in the jail a'.S an under trial prisoner cannot be tnken into account because, section 428 of the Code which allows such a set off applies only when an accused has been sentenced to 'imprisonment for a term', and the sentence of life imprisonment is not an imprisonment 'for a term'. In coming to the conclusion that section 428 has no applicatiol) to ( cases in which an accused is sentenced to life imprisonment, the learned Judge relied upon a judgment of this Court in Kar tar Singh

v. State of ffary.11111.<'.)

The Petitioner in the comp1nion writ petition, Rakesh Kaushik, has a somewhat similar grievance, though he has needlessly introduced extraneous matters in his pleadings. One of his contentions is that the remissions earned by him as a convict must be taken

(l) (1983] S.C.R. 44$

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BHAG!RATH '" DrLHI ADMlN. (Chandrachud, C.J.) 747

into account while computing the period of 14 years under para

graph 516-B of the Punjab fail Manual.

He contends also, that in any case, he ought to be given the benefit of sections 432 and 433 of the Code because, his case merits a favourable consideration by the Delhi Administration. In support of his case, he relies upon an order dated March 3, 1982 passed by this Court in Sukhlal Hansda v. State of Wes! Bengal. (I) According to the countr-affidavit filed by the Deputy Secretary (Home) of the Delhi Adminisiration, the petitioner's case cannot be considered for premature release because he has not yet undergone 14 years of imprionment, inclusive of remissions earned by him.

First, We would prefer to interpret section 428 of the Code of the Criminal Procedure on its own terms, that is, divorced from considerations arising under the Punjab Jail Manual or any other Jail Manul. The Provisions of .Tail Manuals vary fron: State to State. Therefore, questions arising under those Manuals cannot be mixed up with questions arising under the Code, which is the law of the land. Section 4Z8 of the Code reads thus :

"Period of detention undergone b}' the accused to hr: set off against the sentence of ilnprisonn1ent.-

Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period 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 rcmoinder, if any, of the !rem or

imprion1nent in1posed on him."

The neat and, we believe, the simple question for decison is whether i1nrisonn1ent for life is imprisonment ''for a terms'~. The reason why it is urged that imprisonment for life is not imprisonment for a term is that the latter expression comprehends on.ly imprisonments for a fixed, certain and ascertainable period of time like six months, t\.vo years, five years and so oil. Since] the sentence

(I) Writ Petitions (Cod.) Nos. 1128-26 of 1982

A of life imprisonment, as held by this Court in Gopal Vinayak (Jodse

v. The Stale of MahaJashtra, (1> is a sentence for life and n9thing less and since, the term of life is itself uncertain, the sentence of life imprisonment is for an uncertain term, that is to say, that it is not imprisonment for a term. 8

So goes the argument. So does it go but it fails to carry much conviction. Life is uncrtain. ln more ways than one. Who \mows what good may com' tomorrow and how many good tom0rrows there are still to go ? But, philosophical digressions apart, especially optimistic, the fdct that tho term of life is of an uncrtain du.ration does not justify the conclusion that the sentence of imprisonment . for life is not for a term.

The relevant question and, the only ' one, to ask under section 428 is : Has this person been sentened to imprisoment for a term? For the sake of convenience, the question may be split into two parts. One, has this person been sentenced to imprisonment ? And, two, is the imprisonment to which he has been sentenced an imprisonment for a term ? There can possibly be no dispute that a person sentenced to life imprisonment is sentenced to imprisonment. Then, what is the term to which he is sentenced? The obvious answer to that question is that term to which he has been sentenced is the term of his life. Therefore, a person who is sentenced to life imprsonment is sentenced to imprisonment for term.

We see but little warrant for qualifying the word 'term' by the adjective 'fixed' which is not to be found in section 428. The assumption that the word 'term' implies a concept of ascertainability or conveys a sence of certainty is contrary to the lettct of the law, as we find it in that section. Even the marginal note to the section does not bear out that assumption. It rather belies it. And, 'j marginal notes are now legislative and not rdi1orial exercises. The ) marginal note of section 428 shows that the object of the Legislature in enacting the particular provision was 10 provide that 'the period of detention undergone by the accused' should 'be set oft against the sentence of imprisonment' imposed upon him. There are no words of limitation either in the s ec1ion or in its marginal note which would justify restricting the plairn and natural meaning of the word 'term so as to comprehend only sentences which are imposed for a fixed or ascertainable period.

To say that a sentence of life imprison1nent imp0serl upon an

(!) (1961] 3 S.C.R. 440, 444.

t BHAGIRATH v. DELHI ADMN. (Chandrachud, c. J.) 749

accused is a senrence for the term of his life does offence neither to grammar nor to thecommon understanding of the word 'term'.

To say otherwise offend not only against the language of the statute but against the spirit of the law, that is to say, the object with which the law was passed.· A large number of cases in which the accused suffer long undertrial detentions are cases punishable with imprisonment for life. Usually' those who are liable to be sente need to imprisonment for life are not enlarged on bail. To deny the benefit of section 428 to them is to withdraw the application of a benevolent provision from a large majority of cases in which such benefit would be needed and justified.

Arguments and counter arguments were advanced before us on the basis of provisions contained in sections 53, 53A(4J(a) and (b), 57, 65 and 511 of the Penal Code. The provision contained in section 57 that imprisonment foF life has to be reckoned as equiva lent to imprisonment for twenty years is for the purpose of calcula~ ting fractions of terms of punishment. We cannot press that provision into service for a wider purpose. Nor, indeed, can we draw sustenance to our conclusion from the provision contained in section 511 to the effect that whoever attempts to commit an offence punishable with imprisonment for life shall be punished with imprisonment "for a term which may, extend to one half of the impnsonment for life". The argument of Shri Mukul Mudgal that if one-half of life imprisonment is "a term" ex hypothesi, life imprisonment would be "a term of imprisonment" is attractive but slended But, equally, we do not consider that anything contained in the rest of the sections above noted, militates ygainst the view which we have taken.

The modalities for working out the provision contained in section 428 in cases of persons sentenced to imrisonment for life should not present any serious difficulty in practice. In the first place, by reason of section 433A of the Code of Criminal Procedure where a sentence of imprisonment for life is imposed on a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 to one of imprisonment for life; such person cannot be released from prison unless he has served at least fourteen years of imprisonment. The only point to note is

A that while upholding the consitutional validity of section 433A, it was held by this Court in Maru Ram v. Union of India,(') that the section is prospective in operation, with the result that. it cannot apply to cases which were decided by the trial Cout before December 18, 1978, being the date on which the section came into force. 8

The second aspect of the matter which has to be b<1rne in mind is the one arising out of the judgment of this Court in Gopal Vinayak Godsease. It was held by a Constitution Bench in thjlt case that a prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence imposed uonhim -·~ is commuted or remitted by the appropriate authority. f, t was•

further held that since such a sentence could not be equatd with any fixed term, the Rules framed under the Prison Act entitled such a person to earn remissions but that, such remissions were to be taken into account only towards the end of the term. Under section 432 of the Code of Criminal Procedure, the appropriate Government has the power to remit the whole or any part of the punishment to which a person has been sentenced. Under section 433 of the Code, the appropriate Government has the power, inter alia, to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen years to fine. The question of , setting off the period of detention undergone by an accused as an undertrial prisoner against the sentenc:e of life imprisonmnt can arise only if an order is passed by the appropriate authority: under section 432 or section 433 of the Code. In the absence of such order, passed generally or specially, and apart from the proisions, if any of the relevant Jail Maunal, imprisonment for life would mean, according to the rule in Gopal Vinayak 'Godse, ~

imprisonment for the remainder of life. j

The two cases before us were referred to a larger Bench because of the doubt entertained as regards the correctness' of the decision in Kartar Singh, . especially because of the apparently conflicting view taken by another Bench of this Court in Sukhlal Hclnsda v. State of West Bengal. Both of those decisions were rendered by a three-judge Bench. In Kartar Singh, persons who were sentenced to lifo imprisonment challenged an order passed

(I) [1981) t S.C.R, 1196.

BHAGIRATH v. DELHI ADMN. (Chandrachud, c. J.) 7'51

by the Government of Haryana, denying to them the benefit of the period of undertrial detention under section 428 of the Code. It was held by this Court that the Penal Code and the Criminal Procedure Code make a clear distinction between 'imprisonment for life' and 'imprisonment for a term' and, in fact, the two expressions are used in contradistinction with each other in one and the same section, the former meaning imprisonment for the remainder of the natural life of the convict ind the latter meaning imprisonment for a definite or fixedperiod. The Court proceeded to bold that an order of remission pas.std by the appropriate authority merely affects the execution of the sentence passed by ~-the Court, without interfering with the sentence passed or recorded

by the Court. Therefore, section 428 which opens with the words

"where an accused person has, on convfotion, been sentenced to imprisonmont for a term", would come into play in cases where 'imprisonment for a term' is awarded on conviction by a court and not where the sentence imposed upon an accused bec.omes a sentence for a term by reason of the remission granted by the appropriate authority. Finally, according to the Court, 'the question is not whether the beneficent provision should be extended to life convicts on a priori reasoning or equitable consideration but whether on true construction, the section comprises life convicts within itst purview''. The Court found support to its view in the objects and reasons for introducing section 428 in the Code, as set out in the Report of the Joint Committee.

We have considered with great care the reasoning upon which the decision in Kartar Singh proceeds. With respect, we are . unable to agree with the decision. We have already discussed why

mprisonment for life is imprisonment for a term, within the ·\meaning of section 428. We would like to adll that we find it difficult to agree that the expressions 'imprisonment for life' aqd imprisonment for a term' are used either in the Penal Code or in the Criminal Procedure Code in contra-distinction with each other.

Sections 304,305, . 307 and 39~ of the penal Code undoubtedly provide that persons quilty of the respective offences shall be punished with imprisonment for life or with imprisonment for a term not exceeding a certain numer of years. But, that is the only manner in which the Legislature could have expressed its intention that persons who are guilty of those offences shall be punished with

ilber of the sentepccs mentioned in the respective se9tions. The

circumstances on which the learned judges have placed r~Iiance in Kar tar Singh, do not afford any evidence, intrinsic or otherwise' of the use of the two expressions in contra-distinction with each other; Two or more expressions arc often used in the same section in .order to exhaust the alternatives which are avilable to the Legislature. That does not mean that there is, necessarily, an antethesis between those expressions.

The reasoning in Kartar Singh that an order of remission does' not interfere with the sentence recorded by. the dour! but merely affects the execution of the sentence, stands answered by the interpretation which we have put upon the language of section 428 that persons sentenced to imprisonment for life are entenced to imprisonment for a term. It is not because of remissibn that a ' sentence of life imprisonment becomes an imprisonment fqr a term.

We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in section 428 should be extende\} to life convicts on equitable considerations. We enter a most espectful caveat. Equity sustains law and the twain must meet. They cannot run ;'n parallel streams. Equitable considerations must :have an important place in the construction of beneficent provisions, particularly in the field of criminal la\v. To exclude such considerations is to denude law's benevolence of its true and lasting content.

Lastly, the view expressed by the Joint Committee in its Report does' not yield to the inference that the "mischief sought to be remedied has no relevance where gravity of offence req'uires the imposition of imprisonment for life". As we have indicate4 earlier., , graver the crime, longer the sentence and, longer the 'sentence, "f

greater the need for set-offs and remissions. Punishments are no / longer retributory. They are reformative. ,

' The order passed by this Court in Sukh/a/ Honsda telated to the cases of 24 prisoners who were sentenced to life imprisonment.

Most of those prisoners had undergone imprisonment for a period which, after taking account the remissions earned by them, exceeded fourteen years. It was held by this Court that, for the purpose of considering whether the cases of those prisoners should be examined for premature release under the relevant provisions of the West Bensal Jail Manual, there was no reason why the period of

DfiAGiRATH v. DELHI ADMN. (Chandrachud, c. J.)

7S3

imprisonment undergone by them as undertrial prisoners should not be taken into account. The Court directed that the cases of the prisoners should be considered by the State Government, both for the purpose of setting off the period of detention undergone by them as undertrial prisoners and for taking into account the remissions earned by them. The order passed by the Court does not discuss the point which arises before us though, the observations made therein are consistent more with the view which we have taken than with the view taken in Kartar Singh .

. , For these reasons, we allow the appeal and the writ petition

.....__nd direct that, the period of detention undergone by the two accused before us as undertrial prisoners, shall be. set off against the sentence of life imprisonment imposed upon them, subject to the provision contained in section 433A and, provided tl)at order have been passed by the appropriate authority under section 432 or section 433 of fhe Code of Criminal procedure.

N.V.K.

Pelion and Appeal allowed.

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