Skip to content


Datu Chimanrao MaraThe Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1986CriLJ1998; (1986)2GLR1044
AppellantDatu Chimanrao Marathe
RespondentState of Gujarat
Cases ReferredBhagirath v. Delhi Administration
Excerpt:
- - the above provisions of the indian penal code as well as the criminal procedure code show that it is for the appropriate government to consider whether the sentence of imprisonment for life imposed by a court of law should be commuted or not and if so, to what period. this final order passed by the supreme court in the above case clearly shows that it was within the exclusive province of the appropriate government to exercise powers vested under section 432 or 433 of the code and that the court cannot give any directions to the said authority to exercise the powers either under section 432 or section 433 of the code. this clearly shows that it was left to the appropriate government to pass orders under section 432 or section 433 of the cr......to imprisonment for life. the supreme court held in that case that a prisoner sentenced to life imprisonment, is bound to serve the remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the appropriate authority. it appears that the learned trial judge has added the above words in his judgment in view of this interpretation put by the supreme court. the interpretation put by the supreme court is binding on all concerned and that way so far as the interpretation of the said words are concerned, no fault can be found with the interpretation made by the learned additional sessions judge. but the court has only to say that the prisoner is sentenced to imprisonment for life. the court has not to interpret the said sentence while imposing the.....
Judgment:

J.P. Desai, J.

1. 1.to 18. X X X X X

19. The learned Additional Sessions Judge has sentenced the accused appellant to imprisonment for life for the offence of murder and there cannot be any quarrel with the sentence imposed by the learned trial Judge for the said offence, but the learned trial Judge has given following directions while sentencing the accused to imprisonment for life for the offence punishable under Section 302 I.P.C.:

It is further directed that the sentence of imprisonment for life, imposed on the accused, shall last as long as the life of the accused lasts.

The question is whether the learned trial Judge could have given such a direction while imposing the sentence of imprisonment for life for the offence of murder.

20. The Supreme Court had an occasion to consider in the case of Gopal Vinayak Godse v. State of Maharashtra : 1961CriLJ736a as to how long the prisoner has to remain in jail when he is sentenced to imprisonment for life. The Supreme Court held in that case that a prisoner sentenced to life imprisonment, is bound to serve the remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the appropriate authority. It appears that the learned trial Judge has added the above words in his judgment in view of this interpretation put by the Supreme Court. The interpretation put by the Supreme Court is binding on all concerned and that way so far as the interpretation of the said words are concerned, no fault can be found with the interpretation made by the learned Additional Sessions Judge. But the Court has only to say that the prisoner is sentenced to imprisonment for life. The Court has not to interpret the said sentence while imposing the same. It is for the authorities concerned with the execution of the sentence to interpret as to what is meant by imprisonment for life. The Court has simply to say that the accused is sentenced to imprisonment for life. The ratio of the decision of the Supreme Court in the case of Gopal Vinayak Godse (supra) itself shows that unless the sentence of imprisonment for life is commuted or remitted by the appropriate authority under the provisions of Section 55 I.P.C. or the relevant provisions of the Cr. P.C. 1973 (Sections 432 and 433 of the Code), a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. Section 55 of I.P.C. reads as under:

In every case in which sentence of imprisonment for life shall have been passed the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.

Sub-section (1) and Sub-section (7) of Section 432 of Cr. P.C. 1973 read as follows:

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(7) In this section and in Section 433, the expression 'appropriate Government' means,- (a) in cases where the sentence is for an offence against, or the order referred to in Sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government; (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

Clause (b) of Section 433 of the said Code reads as follows:

The appropriate Government may, without the consent of the person sentenced, commute-

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;'.

Section 433A of the said Code reads as follows:

Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of 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 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

The above provisions of the Indian Penal Code as well as the Criminal Procedure Code show that it is for the appropriate Government to consider whether the sentence of imprisonment for life imposed by a Court of law should be commuted or not and if so, to what period. Section 433A of the Cr. P.C. places a restriction upon the powers so as not to commute the sentence in such a way that the prisoner goes out of the prison before serving 14 years of imprisonment. But the fact remains that the power is vested in the appropriate Government to consider the question whether the sentence should be commuted or not. Section 432(1) empowers the appropriate Government to remit the whole or any part of the punishment, while Section 433(b) empowers the appropriate Government to commute the sentence.

21. Article 72 of the Constitution vests in the President of India power to grant pardons, reprieves, respites or remission of punishment or commute the sentence, while Article 161 of the Constitution vests in the Governor of a state such powers.

The power is thus vested in the President or the Governor, as the case may be, to remit or commute the sentence of imprisonment. The Court cannot, by giving directions as done by the learned trial Judge in the present case, take away the powers of the President, the Governor or the appropriate Government which powers are vested in the above authorities by the provisions of the Constitution, the Code of Criminal Procedure, 1973 and the Indian Penal Code. The power being vested in the President, the Governor and the appropriate Government to commute or remit the sentence, the Courts naturally cannot direct the said authorities either to commute the sentence or to remit the sentence or any part thereof. The Supreme Court in the case of Gopal Vinayak Godse 1961 (1) Cri LJ 736 (supra) took the view that the question of remission and/or commutation is exclusively within the province of the appropriate Government. This shows that the Court cannot give any directions in the matter to the appropriate Government.

22. In a very recent decision of the Supreme Court reported in Bhagirath v. Delhi Administration : 1985CriLJ1179 the question arose as to whether a convict sentenced to imprisonment for life is entitled to set off the period of detention undergone as undertrial prisoner as per Section 428 of the Cr. P.C. 1973. We are not concerned in the present case with the question of set off, but the discussion made by the Supreme Court in the above case supports the view that we are inclined to take, viz., that it is within the exclusive province of the appropriate Government to commute a sentence of imprisonment for life, for imprisonment for a term. While discussing the decision of the Supreme Court in Gopal Vinayak Godse's case 1961 (1) Cri LJ 1179 (supra) at para 11, the Supreme Court has observed that in the absence of an order passed by an appropriate authority under Section 432 or 433 of the Code, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse's case, imprisonment for the remainder of life. The Supreme Court in the case of Kartar Singh v. State of Haryana : 1982CriLJ1772 has taken the view that Section 428 of the Code regarding set off is not applicable to convict sentenced to life imprisonment because the convict was not sentenced to imprisonment for a term. The Supreme Court in the case of Bhagirath v. Delhi Administration overruled the earlier decision in the case of Kartarsingh (supra) and held that though the sentence of imprisonment for life is not a sentence for a term, the sentence would be for a term as soon as powers are exercised by the appropriate Government under Section 432 or 433 of the Cr. P.C. The Supreme Court held that after the powers are exercised by the appropriate Government either under Section 432 or 433 of the Code, the convict will be entitled to set off under Section 428 of the Code. The Supreme Court while allowing the appeal and the writ petition directed that the period of detention undergone by the two accused 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 that orders have been passed by the appropriate authority under Section 432 or Section 433 of the Criminal P.C. This final order passed by the Supreme Court in the above case clearly shows that it was within the exclusive province of the appropriate Government to exercise powers vested under Section 432 or 433 of the Code and that the Court cannot give any directions to the said authority to exercise the powers either under Section 432 or Section 433 of the Code. This is clear from the clarification made by the Supreme Court that the set off shall be given provided that orders were passed by the appropriate authority under Section 432 or Section 433 of the Cr. P.C. This clearly shows that it was left to the appropriate Government to pass orders under Section 432 or Section 433 of the Cr. P.C. if they were not passed.

23. The discussion made above goes to show that it is within the exclusive province of the appropriate Government to remit or commute the sentence of life imprisonment to-a term subject, of course, to the limitations imposed by Section 433 and 433A of the Code. If the Court cannot give any directions to the appropriate Government either to remit or commute a sentence under Section 432 or Section 433 of the Code, it follows that the Court cannot also give any directions whatsoever which might come in the way of the appropriate Government exercising the powers under Section 432 or Section 433 of the Code. It is to be left to the appropriate Government to remit or commute the sentence of a convict without giving any directions one way or the other. It is true that the Court may recommend to the appropriate Government to commute the sentence in a given case, looking to the facts and circumstances of the case where it may not be permissible for the Court to award a sentence lessor (more) than the one prescribed by the statute. But that is only a recommendation and not a direction. If the Court feels that the sentence of imprisonment which can be remitted or commuted by the appropriate Government and which is normally remitted or commuted by the appropriate Government will not meet the ends of justice in a given case, the Court may impose the extreme penalty of death provided by the Act. It cannot, on one hand, avoid awarding the extreme penalty of death provided by law and, on the other, give such directions which the Court cannot. If the case is rarest of the rare cases, it may impose the penalty of death but cannot give any such directions as were given by the learned trial Judge in the present case.

24. The discussion made above will go to show that while the sentence of imprisonment for life awarded by the learned trial Judge for the offence of murder should be confirmed, the following directions given by the learned trial Judge therein should be struck off.

It is further directed that the sentence of imprisonment for life, imposed on the accused, shall last as long as the life of the accused lasts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //