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Krishna Chandra Das Vs. the State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in53(1982)CLT7; 1982CriLJ1724
AppellantKrishna Chandra Das
RespondentThe State of Orissa and ors.
Cases ReferredMaru Ram v. Union of India
Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - state of orissa air1971sc2197 ,that a writ of habeas corpus cannot be granted to a person undergoing sentence of imprisonment imposed on him by a competent court it has been clearly stated:.....he again surrender ed on 28-12-1978. admittedly the petitioner is now undergoing the sentence of life imprisonment in the aforesaid sessions case. the inspector general of prisons submitted the case of the petitioner to state government for consideration for his premature release in pursuance of rule 518 of the orissa jail manual. the government in law department rejected the reference for premature release and suggested for consideration of the case after one year, the petitioner contends that on a petition for remission of sentence, the collector made some enquiry from the superintendent of police. the superintendent of police made an enquiry from the officer-in-charge, pattamundai the officer-in-charge intimated that the petitioner was undergoing sentence in another sessions trial......
Judgment:

N.K. Das, J.

1. The undisputed fact is that the petitioner has been convicted under Section 302 I.P.C. by the Additional Sessions Judge, Cuttack in Sessions Trial No. 30 of 1970 and has been sentenced to undergo rigorous imprisonment for life. The judgment of the Additional Sessions Judge has been confirmed in appeal by this court in Criminal Appeal No. 28 of 1971. The sentence has also been upheld. During the course of imprisonment, the petitioner was released on furlough for a period of fourteen days and he again surrender ed on 28-12-1978. Admittedly the petitioner is now undergoing the sentence of life imprisonment in the aforesaid sessions case. The Inspector General of Prisons submitted the case of the petitioner to State Government for consideration for his premature release in pursuance of Rule 518 of the Orissa Jail Manual. The Government in Law Department rejected the reference for premature release and suggested for consideration of the case after one year, The petitioner contends that on a petition for remission of sentence, the Collector made some enquiry from the Superintendent of Police. The Superintendent of Police made an enquiry from the Officer-in-charge, Pattamundai The Officer-in-charge intimated that the petitioner was undergoing sentence in another sessions trial. It is contended that in fact, that sessions case related to another person though bearing the same name as the petitioner and during the period of alleged occurrence of that case the petitioner was inside the prison. It is contended that due to wrong information given by the Officer-in-charge, the petitioner has been detained in jail and, as such, he has prayed for issue of habeas corpus for his release.

2. The State, in the counter has stated that there has been no remission of the sentence nor there has been any order by the State Government for remitting the period of imprisonment as made by the court in the sessions case. Therefore, the petition for habeas corpus is not maintainable. It is further contended that in the other case the conviction was for four years only and that period has already expired by 1978 and, as such, that case has no bearing on the present case. It has been held by the Supreme Court in Dr. B. Ramachandra Rao v. State of Orissa : AIR1971SC2197 , that a writ of habeas corpus cannot be granted to a person undergoing sentence of imprisonment imposed on him by a competent court It has been clearly stated:

In proceedings for a writ of habeas corpus the Supreme Court, as a general rule, does not go into the questions whether the cases against the petitioner are not true and they have been engineered by some high placed individuals for mala fide reasons.

The Supreme Court also in Maru Ram v. Union of India : 1980CriLJ1440 observed as follows at pp. 1451 & 1452 of Cri LJ:

Ordinarily, where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at that point where the subtraction results in zero. Here, we are concerned with life imprisonment and so we come upon another concept bearing on the nature of the sentence which has been highlighted in Godse's case : 1961CriLJ736a . Where the sentence is indeterminate and of uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration, Godse was sentenced to imprisonment for life. He had earned considerable remissions which would have rendered him eligible for release had life sentence been equated with 20 years of imprisonment a la Section 55 I.P.C. On the basis of a rule which did make thatequation, Godse sought his release through a writ petition under Article 32 of the Constitution. He was rebuffed by this Court. A Constitution Bench, speaking through Subba Rao, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under Section 401 of the Criminal Procedure Code, 1898 (corresponding to Section 432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution of India. Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of 'imprisonment for the whole of the remaining period of the convicted person's natural life'. The legal position has been set out in the context of remissions in life sentence cases thus : 1961CriLJ736a :Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the prisons Act enable such a prisoner to earn remissions - ordinary special and State - and the said remissions will be given credit towards his term of imprisonment. For the purpose of working out the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under Section 491 of the code of Criminal procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government, and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.

3. From the aforesaid dictum of the Supreme Court, it is clear that a sentence of imprisonment for life, if passed by a competent court, has to last till the death of the prisoner. The question of remission is within the province of the appropriate Government. In the instant case, it is not disputed that the appropriate Government has not taken any decision for remission of the imprisonment. In view of this position, this writ petition is not maintainable.

4. Mr. Mishra, the learned Counsel for the petitioner, however, contends that a mercy petition has been filed by the brother of the petitioner and the same should be considered and disposed of at an early stage. The learned Additional Government Advocate states that that petition is under process to be sent to the Government. In view of this admitted position, we hope that the Government will take early steps to dispose of the mercy petition. Mr. Mishra, further states that the petitioner will also make another petition for remission of the imprisonment and he drew our attention to certain provisions of the Indian Penal Code and Code of Criminal Procedure which are to be considered at the time of disposal of such petition. It is open to the petitioner to take his stand on the said provisions of the Indian Penal Code and Code of Criminal Procedure to which he has made references in his petition and the Government, we hope, will take those provisions into consideration, if any such petition is filed, while disposing of the matter.

5. In the result, the writ petition is dismissed but there will be no order as to costs,

J.K. Mohanty, J.

6. I agree.


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