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Sendhaji Mathurji and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR451
AppellantSendhaji Mathurji and ors.
RespondentState of Gujarat and ors.
Cases ReferredAlfred J. Peries v. The Stale of Mysore and Ors.
Excerpt:
- - in absence of section 433a, the entire sentence of a life convict can be remitted by the state government in exercise of its power under section 432. it can as well remit a part or a very large part of such a sentence. the combined reading of sub-section (1) of section 432 and section 433a clearly leads to the conclusion that in case of life imprisonment-either upon commutation or originally awarded by the court a case in which death is one of the punishments power under section 432(1) is exercisable only after the expiry of fourteen years of actual servitude in jail. if the circumstances specified in rules 1419 to 1445 are satisfied, a prisoner earns remission in terms of those rules. section 59 inter alia confers power on the state government to make rules, for rewards for good.....s.h. sheth, j.1. the petitioners in nil these petitions are convicts undergoing imprisonment for life awarded to them under section 302, indian penal code. they have earned remissions under the prisons act, 1894, and the bombay rules made thereunder. they contend that even though each one of them has served jail sentence of 14 years or more including the period of remission earned by him, the state government is not releasing them. it appears that fee. 433 a of the code of criminal procedure, 1973, is coming in their way. therefore, they are challeging in this petition the bar created by section 433a. on behalf of the petitioners, the following two contentions have been raised(1) section 433a is ultra vires article 161 of the constitution.(ii) if it is not ultra vires article 161, it, is.....
Judgment:

S.H. Sheth, J.

1. The petitioners in nil these petitions are convicts undergoing imprisonment for life awarded to them under Section 302, Indian Penal Code. They have earned remissions under the Prisons Act, 1894, and the Bombay Rules made thereunder. They contend that even though each one of them has served jail sentence of 14 years or more including the period of remission earned by him, the State Government is not releasing them. It appears that fee. 433 A of the Code of Criminal Procedure, 1973, is coming in their way. Therefore, they are challeging in this petition the bar created by Section 433A. On behalf of the petitioners, the following two contentions have been raised

(1) Section 433A is ultra vires Article 161 of the Constitution.

(ii) If it is not ultra vires Article 161, it, is at least not retrospective in character and, therefore, it applies only to those prisoners who were convicted after Section 433A came into force.

2. Section 433A was enacted by Parliament by the Code of Criminal Procedure (Amendment) Act, 1978 and came into force on 18th December 1978. Let us now reproduce Section 433A and see what it provides:

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 has served at least fourteen years of imprisonment.

The first part of Section 433A is in the nature of a non-obstante Clause to Section 432 in cases in which imprisonment for life has been awarded for an offence which was punishable also with the sentence of death. The second part of Section 433A makes an express reference to Section 433. To be more specific, it appears to us that the latter part of Section 433A has a reference to Clause (a) of Section 433.

3. Let us now turn to Section 432 in order to appreciate what mischief the first part of Section 433 A. has created in the statute. Sub-section (1) of Section 432 confers upon the appropriate Government substantive power to remit or suspend sentence awarded to a convict. It reads as follows:

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.

We are making a brief reference to other sub-sections also. However, they are not relevant for the purpose of the present case. Sub-section (2) is purely procedural in character. The procedure which it lays down has reference to the exercise of power under Sub-section (1) of Section 432. Sub-section (3) provides for post remission or post-suspension consequences. Sub-section (4) applies to cases of conditional suspension or remission. Sub-section (5) is purely procedural and confers upon the appropriate Government the power to make general rules or issue special orders for giving directions in the matter of suspension of sentences. Sub-section (6) provides for extension of the provisions of Sub-Section (1) to (5) to cases other then those under the Indian Penal Code. Sub-section (7) defines 'appropriate Government' for the purposes of Sections 432 and 433A. This section is pari materia with Sections 401 and Sub-section (3) of Section 402 of the repealed Code. There is no material change between the two.

4. Sub-section (1) of Section 432 which we have quoted above confers upon the State Government substantive power to remit orsuspend a sentence awarded to a prisoner by a Court of law. The power which it confers is unlimited in character. In absence of Section 433A, the entire sentence of a life convict can be remitted by the State Government in exercise of its power under Section 432. It can as well remit a part or a very large part of such a sentence. This unlimited power of remission which Sub-section (1) of Section 432, confers upon the State Government, has been, in our opinion, cut down by Section 433A to the following extent. In case of prisoners who have been awarded life imprisonment, no remission can be granted by a State Government which reduces his actual servitude in jail to less then 14 years. There are two expressions which are used in Section 433A which, in our opinion, should be carefully noticed. One is 'served.' In cur opinion, it connotes actual servitude in jail and not a notional servitude. We say so firstly because notional servitude may bring in the question of adding remissions. The language of Section 433A does not permit us to take the view that the expression 'served' connotes notional servitude and not actual servitude because another expression 'at least' has been used in its context. Therefore, when two expressions are combined together, 'served at least fourteen years', they are capable, in our opinion, of producing one meaning and one meaning alone. It appears actual servitude in a prison for fourteen years and not less. Therefore, unlimited power which has been conferred upon the State Government under Sub-section (1) of Section 432 is qualified or cut down in case of life convicts. In other words, the State Government cannot exercise the power of remission under Sub-section (1) of Section 432 unless a prisoner has actually served fourteen years imprisonment in jail. The combined reading of Sub-section (1) of Section 432 and Section 433A clearly leads to the conclusion that in case of life imprisonment-either upon commutation or originally awarded by the Court a case in which death is one of the punishments power under Section 432(1) is exercisable only after the expiry of fourteen years of actual servitude in jail.

5. In order to appreciate further implications flowing from the second part of Section 433A, it is necessary to quote Section 433.

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

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

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

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that parson might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.

When the latter part of Section 433A is read with Clause (a) of Section 433, the clear implication which flows from the combined reading is that in a case in which capital punishment has been awarded by the Court and commuted by the Government into life imprisonment, a prisoner cannot be released from prison unless he has actually served fourteen years of imprisonment. In other words, in case of life imprisonment which may be the result of commutation of death sentence by the Government or which may have been originally awarded by Court, the power of releasing a prisoner is exercisable only after he has actually served fourteen years in jail. We may in passing observe that Section 433A does not produce any impact upon Section 54 and Section 55 of Indian Penal Code which respectively provide in cases specified in them for commutation of sentence of death and commutation of sentence of imprisonment for life. The scheme of Section 433A is, therefore, that the convicts undergoing imprisonment for life must undergo fourteen years' servitude in jail after which they may be released by the State Government in exercise of its power under Section 432(1).

6. The question which has been raised on behalf of the petitioners is as follows:

What happens to the remissions earned by life convicts? According to them, if remissions earned by them are added to the sentence served by them, they would complete twenty years, though they might have actually undergone less then fourteen years' servitude in jail. Therefore, does Section 433A nullify partly or wholly the remissions earned by life convicts? We shall presently show that a prisoner who earns remissions does not acquire any statutory rights. However, assuming that he acquires such a statutory right, then a right which is given by a statute may be nullified, abridged or curtailed by it. It is open to the Parliament or the Legislature to enact a law taking away or qualifying a right which another statute has conferred upon a person. Therefore, merely because remissions earned by prisoners appear to be nullified by Section 433A, it cannot be held that it is invalid.

7. We now proceed to examine the nature of remissions which a prisoner earns. It is necessary in this context to turn to Section 57 of the Indian Penal Code which provides as follows:

In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years.

We shall presently refer to the decision of the Supreme Court which says that twenty years' imprisonment is not a statutory substitute for life imprisonment by virtue of the provisions of Section 57 of the Indian Penal Code. It is only for the purpose of calculating fractions of terms of punishment. So far as remissions are concerned, our attention has been invited to the Prisons Act, 1894. It runs into several Chapters none of which contains any provision relevant for the purpose of the present case except Section 59. Section 59 confers upon the State Government rule-making power. Sub-section (5) thereof which is material for the present purpose reads as follows:

The State Government may make rules consistent with the Act for the award of marks, granting remission or furlough, determining the conditions on which and the authority by which such remission or furlough shall be granted and the consequent shortening of the sentence.

Under this section, rules were made by the then Bombay State which are still in force in this State. It appears that Bombay rules are more then a thousand in number. We are concerned with Chapter XL of the Rules which deals with the remission system. Chapter XL contains Rules 1449-1445. A close glance at these rules shows that a prisoner earns three kinds of remissions. They are ordinary, special and State remissions. Ordinary remissions have been dealt with by Rules 1419 to 1433. Special remissions have been dealt with by Rule 1434 to Rule 1441. State remissions have been dealt with by Rule 1442 onwards. If the circumstances specified in Rules 1419 to 1445 are satisfied, a prisoner earns remission in terms of those rules. Ordinarily, those remissions are taken into account by the State Government for the purpose of deciding when a prisoner should be released. However, we are concerned in the instant case with what right the remissions earned by a prisoner confer upon him. This question has been answered by a number of decisions to which our attention has been invited by the learned Advocates appearing on both the sides.

8. The first decision is of the Supreme Court in Gopal Vinayak Godse ` The Stale of Maharashtra and Ors. 63 Born. L.R. 517- : 1961CriLJ736a . It is a decision of the five learned Judges of the Supreme Court. The first question which the Supreme Court has answered in that decision is whether there is any provision of law under which a sentence of life imprisonment, without any formal order of remission by the appropriate Government, can be automatically treated as one for a definite period. The answer which the Supreme Court has given is that there is no such provision in Indian Penal Code or in the Code of Criminal Procedure or in the Prisons Act. Section 57 of the Indian Penal Code has been referred to in that case. In that connection, it has been observed by the Supreme Court that it has no bearing on the question because only for the purpose of calculating fractions of the terms of punishment, Section 57 provides that transportation (or imprisonment) for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation shall be deemed to be transportation for twenty years for all purposes. It has been further observed by the Supreme Court that the amended section which substitutes the words 'imprisonment for life' for 'transportation for life' does not enable them to draw any such all-embracing inference. A sentence of imprisonment for life must prima facie be treated as imprisonment for the whole of the remaining period of the convicted person's natural life. An argument was also raised that Bombay rules governing the remission system substitute a definite period for life imprisonment and that, therefore, if the aggregate of the term actually served exceeded the said period, the prisoner would be entitled to be released. In order to answer that contention, the Supreme Court examined Rule 934, Rule 937(c), Rule 1419(c) and Rule 1447(2) of the Bombay Rules made under the Prisons Act, 1874. The Supreme Court has observed that they are statutory rules. However, the Prisoners Act under which they are made does not confer on any authority a power to commute or remit sentence. It provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 inter alia confers power on the State Government to make rules, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of that Act. For the purpose of working out the remissions under those rules, transportation (or imprisonment) for life is ordinarily to be taken as 15 years' actual imprisonment. In the opinion of the Supreme Court, Rule 1419(c) could not be construed as a statutory equation of 15 years' actual imprisonment for transportation for life. The equation which that rules lays down is only for a particular purpose, namely, for the purpose of 'remission system' and not for all purposes. The Supreme Court has also referred to the non obstante Clause in Rule 1447(2) and observed that notwithstanding anything contained in Rule 1419 no prisoner who has been sentenced to transportation for life shall be released on completion of his term unless orders of the Government have been received on a report submitted to it. The Supreme Court has, therefore, drawn the inference that 15 years imprisonment specified in Rule 1419(c) is only for the purpose of calculating the remissions and that the completion of the term of imprisonment on that basis does not ipso facto confer any right upon the prisoner to be released. Proceeding further, the Supreme Court has observed that the order of the Government contemplated in Rule 1447 in the case of a prisoner sentenced to transportation for life can only be an order under Section 401 of the Code of Criminal Procedure, for, in the case of a sentence of transportation for life the release of the prisoner can legally be effected only by remitting the entire balance of the sentence. Under the rules, the orders of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for such a release. It has been observed by the Supreme Court that no rule was brought to the notice of that Court which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. After having examined different Clauses and correlated them, the legal position has been summed up by the Supreme Court in the following words:

Before Act XXVI of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. 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 401 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.

The petitioner in that case made an impassioned appeal to the Supreme Court that if such a construction was placed, he would be at the mercy of the appropriate Government and that the Government, out of spite, might not remit the balance of his sentence, with the result that he would be deprived of the fruits of remissions earned by him for sustained good conduct, useful service and even donation of blood. The Supreme Court has answered that impassioned appeal by observing 'The Constitution as well as the Code of Criminal Procedure confer the power to remit a sentence on the executive Government and it is in its exclusive province. We cannot assume that the appropriate Government will not exercise its jurisdiction in a reasonable manner.

9. We have made a detailed reference to this decision because, in our opinion, it has dealt with the question thoroughly. It was & the first decision in the field.

10. The next decision to which our attention has been invited is in State of Madhya Pradesh v. Ratan Singh and Ors. : 1976CriLJ1192 . The decision in Godse's case (supra) to which we have referred was cited before the Supreme Court in this case. The Supreme Court has observed in regard to a sentence for life as follows in paragraph 4 of the report..a sentence for life would ensure till the life-time of the accused as it is not possible to fix a particular period of the prisoner's death: so any remissions given under the Rules could not be regarded as a substitute for a sentence of sentence for life.

In regard to the Rules framed under the Prisons Act or under the Jail Manual, the Supreme Court has observed as under:

They 'do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the Court under Penal Code.

It was a case under the Prisons Act, the rules made thereunder and the rules contained in the Punjab Jail Manual. After having made observations, reproduced above, the Supreme Court held that 'the High Court was in error in thinking that the respondent was entitled to be released 0.1 completing the terra of 23 years including the remissions'.

11. The next decision is in SambhaJi Krishan Ji v. State of Mahara shtra : 1974CriLJ302 . On the subject with which we are dealing in this group of cases, what the Supreme Court has observed in that decision is as follows in paragraph 4 of the report.

a person sentenced to transportation for life may be detained in prison for life. Accordingly, this Court cannot interfere on the mere ground that if the period of remission claimed by him is taken into account he is entitled to be released. It is for the Government to decide whether he should be given any remissions and whether he should be released earlier.

12. Mr. Mody has invited our attention to the decision in Sarat Chandra Babha and Ors. v. Khagendranath Nath and Ors. : [1961]2SCR133 . It was a case under the Representation of the People Act, 1951. The appellant therein was convicted under Section 4(b) of the Explosive Substances Act, 1908, and was sentenced to three years' rigorous imprisonment. Section 7(b) of the Representation of People Act, 1951, laid down that a person shall be disqualified for being chosen as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State if he is convicted by a Court in India of any offence and sentenced to imprisonment for not less then two years unless a period of five years or such less period as the Election Commission may allow in any particular case has elapsed since his release. The Government of Assam had in that case remitted a part of the sentence of three years' rigorous imprisonment, reduced it to less then two years and released him. It was, therefore, contended that since the appellant had in that case had suffered less then two years' rigorous imprisonment, Section 7(b) was not attracted to his case. Negativing the contention, the Supreme Court observed in paragraph 4 of the report:

An order of remission does not in any way interfere with the order of the Court. It only 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 inflicted by the Court though the order of conviction and sentence passed by the Court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional Court would have of reducing the sentence passed by the trial Court and substituting in its place the reduced sentence adjudged by the appellate or revisional Court. 'Therefore, the order of remission. did not in any way affect the order of conviction and sentence passed by the Court which remained as it was. Therefore, the terms of Section 7(b) would be satisfied in the present case'....

The principle laid down in that decision has no application to the facts of the instant case.

13. Our attention has also been invited by Mr. Mody to the decision of the Privy Council in Kishori Lal v. Emperor . It was a case from Lahore. It has been observed by the Privy Council in that decision that a person who was lawfully sentenced to transportation for life and confined in a prison which has been appointed as a place to which prisoners so sentenced might be sent is not entitled to be discharged after 14 years even if it is assumed that the sentence is to be regarded as one of 20 years and subject to remission for good conduct. It is significant to note that the Privy Council in that case did not decide whether the sentence of transportation for life could be regarded as a sentence for 20 years. The Privy Council assumed it to be true. Next, the Privy Council did not express any opinion on the nature and character of remiss ions earned by a prisoner for good conduct but assumed that they stood to his credit. On these two assumptions, the Privy Council held that a person who was lawfully sentenced to transportation of life had no right to be discharged after he bad served imprisonment for a particular period in jail. The principle laid down in this decision does not help the petitioners in advancing their case further.

14. There are two more decisions to which our attention has been invited. One is in Stale of Kerala v.R. Jacob Mathew : AIR1964Ker316 . The principle laid down in that case has no application whatsoever to the instant case. All that has been laid down in that decision is that an executive direction issued by the State Government falls within the ambit of the definition of 'Law' given in Article 13(3)(a) of the Constitution. Therefore, its validity can be tested on the touchstone of Article 14.

15. The last decision to which our attention has been invited is in Alfred J. Peries v. The Stale of Mysore and Ors. AIR 1967 Mysore 181. In that case, Mysore High Court has considered the implications flowing from the decision of the Supreme Court in Godse's case (supra). Indeed, in that case, the Mysore High Court was concerned with Mysore Rules made under the Prisons Act, 1894. We are not concerned with those rules in this case. However, the following observations made by Mysore High Court are quite apposite in the context of Bombay Rules with which we are concerned in this case. Analysing the implications of the decision of the Supreme Court in Godse's case, Mysore High Court has observed as under in paragraph 8 of the report

A prisoner sentenced to life imprisonment is bound in law to serve the life term in prison, 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. For the purpose of working out remission which a prisoner is enabled to earn under the rules framed under the Prisons Act, the sentence of imprisonment of 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 imprisonment for life is of indefinite duration, the remission earned by such a convict does not, in practice, help turn unless the appropriate Government remits the sentence under Section 401 of the Code of Criminal Procedure on a consideration of the relevant factors including the period of remission earned. The question of remission is exclusively within the province of the appropriate Government.

The Mysore High Court, therefore, held that unless the appropriate Government remitted the remaining part of the sentence under Section 401 of the Code of Criminal Procedure, the petitioner in that case could not be ordered to be released.

16. These decisions to which we have referred clearly enunciate and lay down the following principles:

17. In case of a person who has been sentenced to imprisonment for life, his imprisonment, in law, is co terminus with his natural death in ordinary course. 20 years which have been specified in se;. 57 of the Indian Penal Code are only for the purpose of calculating fractions of terms of punishment and are not a substitute for imprisonment for life. In other words, period of 20 years which has been specified in Section 51 of the Indian Penal Code is not the statutory upper limit of imprisonment for life. Remissions which a prisoner earns under the Prisons Act, 1894, do not confer upon him a statutory right to reduce his sentence by the period of those remissions. They are only for the purpose of enabling the State Government to consider his case for remission under Section 432 of the Code of Criminal Procedure if it wants to do so. Bearing these principles in mind, we have no doubt in our minds that whereas Section 57 of the Indian Penal Code does not fix statutory upper limit of imprisonment for life, Section 433A of the Cede of Criminal Procedure fixes a statutory lower limit of imprisonment for life. So far as remissions are concerned, it is one thing to earn them, but, so far as its availability is concerned, it is altogether a different matter. After they have been earned, they must be allowed or granted by the exercise of power under Sub-section (1) of Section 432, In this view of the matter, three clear positions emerge. Firstly, a prisoner may not have earned any remissions and yet the State Government may remit the entire or a part of his sentence under Section 432. Secondly, a prisoner may have earned remissions and the Government in exercise of the power conferred upon ii by Sub-section (1) of Section 432 may remit his sentence by allowing the remissions to be deducted from his actual sentence. Thirdly, a prisoner may have earned remissions and yet the Government may not exercise the power under Sub-section (1) of Section 432 and may not, therefore, remit a part of his sentence. What the Government will do and how the Government will act depends upon the facts of each case. There is no reason to believe that the Government will act arbitrarily or capriciously as has been observed by the Supreme Court in paragraph 9 of the report in Gopal Godse's case (supra).

18. These decisions remove the cloud and make it clear beyond all doubts that benefits earned under the Prisons Act, 1894 are not available to a prisoner as of right until the State Government exercises its power under Section 432(1) of the Code of Criminal Procedure. Now Section 433A places a fetter upon that power of the State Government by requiring it not to exercise the power in cases contemplated by that section until a prisoner has suffered fourteen years of servitude in jail. Therefore, benefits which a prisoner earns under the Prisons Act, 1894, and the rules made thereunder merely constitute an inchoate right. In other words, Sub-section (5) of Section 59 of the Prisons Act, 1894, and the rules made thereunder are a source of a mere inchoate right. In none of the present cases, the State Government has exercised its power.

19. Having examined the implications of Section 433A in light of Section 432(1) and Section 433 of the Code of Criminal Procedure, 1973, read with Section 59(5) of the Prisons Act, 1894, and the rules made thereunder, let us now turn to Article 161 of the Constitution in order to find out whether Section 433A is ultra vires that Article. Article 161 provides as under:

The Governor of a State shall have the power to grant pardons, reprieves respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any Law relating to a matter to which the executive power of the State extends.

Under Article 162, the executive power of a State, subject to the provisions of the Constitution extends to the matters with respect to which the Legislature of the State has power to make laws. It is not necessary to refer to the proviso to Article 162 because it is not relevant for the purpose of the present case.

20. The question which has been raised for our consideration is whether Article 161 hits Section 433A. Our answer to the question is in the negative for the following reasons. Section 433A is an exception to Section 432. It is not an exception and cannot be an exception to Article 161 because whereas Section 432 to which Section 433A appears to us to be an exception confers power upon the appropriate Government to suspend or remit the whole or any part of the punishment, Article 161 confers power upon the Governor. These are two different authorities. Therefore, Section 433A does not in any conceivable case purport to affect the power of the Govemer conferred upon under Article 161. The combined effect of Article 161 and Section 433A would be, in our opinion, as follows. If Governer remits the sentence of a prisoner or a part of it under Article 161, then despite Section 433A of the Criminal Procedure Code, a convict can be released from prison before he has actually served fourteen years' imprisonment. In such a case, Section 433A does not and cannot come in the way of the Governor whose power in no manner whatsoever ii purpose to affect. Therefore, there are two reasons which militate against the constitutional invalidity of Section 433A on the anvil of Article 161. Firstly Article 161 must override Section 433A in areas which they come in conflict if there are any. We find no area of conflict between Section 433A and Article 161. Secondly, Section 433A cuts down the power of the appropriate Government under Section 432 and does not affect the power of the Governor under Article 161. Therefore, it appears to us that where Article 161 operates, Section 433A does not operate and vice versa. It is, therefore, not ultra vires Article 161.We have already stated that it operates in areas where Section 432 operates. What Section 432 provides can be cut down by Section 433A. What the statute provides can be qualified or limited by it in certain cases in another provision. Therefore, Section 432 and Section 433A can very comfortably co-exist. It is on account of that reason that Section 433A opens with non obstante Clause. In this context, it is necessary to examine whether the appropriate Government referred to in Section 432 and the 'Governor' referred to in Article 161 are the same. It does not appear to us to be so. A look at Chapter 11 in Part VI of the Constitution clearly brings to the fore in broad terms three branches of the executive Government of the State. One is the Governor, the second consists of the Council of Ministers and the third is the Advocate-General for the State. Article 161 confers power upon one of those branches of the executive, i.e. Governor, Section 432 confers power upon another branch of the executive, the Council of Ministers. We may in this context refer to Article 166. Clause (1) of Article 166 provides that all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. It is merely a form in which the power exercised by the State Government is expressed. It is quite probable that an order made by the State Government under Section 432 of the Code of Criminal Procedure may also be expressed in the name of the Governor. But merely because it has been expressed in the name of the Governor, it cannot be said that it is an act in exercise of the power conferred upon the Governor under Article 161. The power conferred upon the Governor under Article 161 requires him to make an order in his own name. An exercise of power by the State Government, expressed in the name of the Governor, is not tantamount or equivalent to the exercise of power by the Governor himself. The order made by the Government under Section 432 and expressed in the name of the Governor is Government's order under Section 432. This dual capacity of the Governor is made clear by Clause (1) of Article 163 which provides as follows:

There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.

It is clear, therefore, that the first capacity in which the Governor acts is the capacity in which he is aided and advised by his Council of Ministers. The second capacity in which the Governor acts is his discretionary capacity. It appears to us that when the Governor acts under Article 161,he acts in his direction. Since we are of the opinion that Section 432, a part of which has been cut down to a certain extent by sec: 433A on one hand and Article 161 on the other hand, confer power upon the two different authorities and since Section 433A does not, in any way, impinge upon the provisions of Article 161, Section 433A is not ultra vires Article 161.The first contention raised on behalf of the petitioners is, therefore, rejected.

21. The second contention which has been raised is that Section 433A is not retrospective in character. In other words, according to the petitioners, it applies to cases of convictions awarded to prisoners after Section 433A was enacted. We may make it clear that there is nothing express in the Code of Criminal Procedure (Amendment) Act, 1978, which provides that Section 433 A shall be prospective or otherwise Section 433A uses the expression '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'. The use of the present tense 'is imposed' suggests to us that it is applicable to persons who are convicted after that section came into force. If it was applicable also to persons who were convicted before that section was enacted, we think the Parliament would have used the expression 'has been imposed'. In this behalf, a clear contradistinction in language used by Parliament can be brought out. Whereas the first part of Section 433A uses the present tense, the second part of Section 433A uses the present perfect tense when it says 'where a sentence of death imposed on a person has been commuted under Section 433'. Similarly, if we have another look at Sub-section (I) of Section 432, we find that it opens with the present perfect tense when it says 'when any person has been sentenced' to imprisonment for life. The present perfect tense, in our opinion, connotes an event which happened in the past and the effect of which is co-tinuing even now. That is not the connotation of the present tense. Therefore, so far as the first part of Section 433A is concerned, it is applicable to cases of convicitions awarded by a Court after Section 433A came into force. Therefore, in cases of convictions which were awarded by a Court before Section 433A came into force, the first part of Section 433A does not place any fetter upon the power of the State Government. In other words, in our opinion, in cases falling under the first part of Section 433A, it is open to the State Government under Sub-section (1) of Section 432 to remit the sentence of a life convict and to release him even before he has completed fourteen years of servitude in jail. It amounts to our saying that it is open to the State Government to allow any remission to such a life convict irrespective of whether a prisoner has earned remissions under the Prisons Act or not. So far as the second part is concerned, the expression which is used is' has been commuted under Section 433'. Such a commutation could have been ordered before Section 433A came into force or it could have been ordered even after that section came into force. In both these cases, that is to say, in cases in which the State Government has commuted death sentence into sentence of imprisonment for life either before Section 433A came into force or after it came into force, it is not open to the Stale Government to release such a prisoner from jail unless he has served fourteen years of imprisonment.

22. The view which we are taking will indeed create two classes of prisoners: one class will consist of those who suffered conviction and invited imprisonment for life before Section 433A came into force. Another class will consist of those who suffered conviction after Section 433A came into force and were awarded imprisonment for life. This ostensible classification which may follow as a result of the view which we are taking does not suffer from any constitutional vice because, as held by the Supreme Court in the decisions to which we have referred, a prisoner who has been convicted and has been sentenced to imprisonment for life has no right whatsoever to be released during his life-time. In other words, the imprisonment for life is co-terminus with his natural life. Since life convicts do not have any statutory right for being release during the course or their natural life, the classification which follows from the view which we are taking does not affect the rights of any one. Section 432 does not confer upon any prisoner a rights to have his life sentence reduced to a specified period. It merely enables a State Government to exercise power to remit sentence. Therefore, Section 432 operates only in the field of Governmental power and does not operate in the field of rights of life convicts or other convicts. It is that field of power which is cut down or circumscribed by Section 433A in cases specified therein.

23. The view which we have expressed is likely to lead to yet another classification also: (1) life convicts to whom the Court awarded sentence of life imprisonment and (2) those to whom the Court awarded the punishment of death and whose punishment of death was commuted into imprisonment for life by the Government-in both the cases the convicts having been sentenced prior to the coming into force of Section 433A. Whereas persons to whom imprisonment for life was awarded before Section 433A came into force can be released from prison before they have served fourteen years of imprisonment, those to whom death sentence was awarded before Section 433A came into force and whose death sentence was commuted into life imprisonment cannot be released from prison unless they have served at least fourteen years of imprisonment. This classification which may result from the view which we are taking does not, in our opinion, suffer from any constitutional vice because these two classes of convicts are quite different and distinct. Whereas a person who was convicted and sentenced to imprisonment for life by the Court did not enjoy any grace, clemency or mercy from the Government, a person who was sentenced to death and whose death sentence was commuted into life imprisonment would be suffering life imprisonment on account of the grace, clemency or mercy shown by the Government, Therefore, though apparently these two sets of convicts may appear to belong to a single class, on a close scrutiny, they are found to be constituting two separate and distinct classes. In that view of the matter, the view which we are taking does not suffer from any constitutional vice,

24. Even though the first part of Section 433A applies to cases of convictions awarded after Section 433A came into force, in cases in which convictions were awarded before Section 433A came into force, it is a matter of executive discretion on the part of the Government to exercise or not to exercise power under Section 432. We cannot direct the State Government to exercise that power. That is the view which the Supreme Court has expressed in Gopal Godse's case (supra). All that we can say is that in light of decision which we are rendering, it would be open to the Government to consider case of each individual prisoner on merits and to decide in which case or cases in which convictions were awarded before Section 433A came into force, power under Section 432(1) should be exercised and prisoners should be released even before they have completed fourteen years' servitude in jail. In such cases, at the cost of repetition, we make it clear that the bar enacted by Section 433A does not come in the way of the State Government. The second contention raised on behalf of the petitioners is, therefore, partly upheld.

25. Mr. Mody who appears for some of the prisoners has invited our attention to some cases of premature release of life convicts by the State Government. We asked the State Government to furnish information showing under what circumstances those convicts were released. The State Government furnished us a list of six life convicts who were released after 18th December 1978 when Section 433A came into force before they completed fourteen years of imprisonment. One Kantilal Ravji was released from jail by the State Government on 25th September 1979 when he had actually served only 10 years, 1 month and 18 days in imprisonment. Another case is of Ahmed Habib who was released from jail on 13th October 1979 when he had served only 7 years 1 month and 18 days in imprisonment. The third case is of Brjal Raiya. He was released after he had served 10 years 1 month and 28 days in imprisonment. The fourth case is that of Kaluji Dahyaji. He was released after he had served 10 years 8 months and 4 days in imprisonment. The fifth case is that of Pan-dhrinath alias Chandravadan Chhanalal who was released after he had served in imprisonment more then 9 years and less then 10 years. All of them were sentenced to imprisonment for life before Section 433A came into force and were released after Section 433A came into force. The State Government exercised power under Sub-section (1) of Section 432 in all those cases. In the view which we have taken, what the State Government did cannot be said to be violative of Section 433A. However, Mr. J.U. Mehta who appears on behalf of the State has frankly told us that when those prisoners were released from jail, the State Government was ignorant of Section 433A. That is a very frank and candid statement which Mr. Mehta has made on behalf of the State Government. If we are in error in taking the view which we have expressed in this judgment and if the State Government made an ostensible mistake in some cases and committed an illegality, we cannot issue a writ of mandamus and direct the State Government to commit another illegality. A writ of mandamus or a writ of habeas corpus cannot be issued for such a purpose.

26. The last case is that of Hasam Bhoja. He was sentenced to life imprisonment on 31st May 1972 and was released on 10th June 1980 when he had undergone a little more then 8 years in jail. His was not a case of ignorance on the part of the State Government. Mr. Mehta has shown us an order made by the Governor under Article 161 of the Constitution remitting the balance of his sentence. It is clear, therefore, that Hasam Bhoja was lawfully released from jail before he completed fourteen years' servitude in imprisonment.

27. In the result, we are unable to direct the State Government to release the petitioners from jail though they were convicted and sentenced to imprisonment for life before Section 433A came into force. They do not have any statutory right to be released from jail. However, in such cases, the State Government will be at liberty to consider on merits each individual case for deciding whether power under Section 432(1) should be exercised. If it decides to exercise it in any case, Section 433A will not, in our opinion, come in its way. In the result, Special Criminal Application No. 88 of 1980, Special Criminal Application No. 95 of 1980, Special Criminal Application No. 106 of 1980 and Special Criminal Application No. 115 of 1980 are dismissed. Rule is discharged in each case. Miscellaneous Criminal Application No. 913 of 1980 has been filed by the petitioner only for obtaining an order of bail. Since we have decided his main petition finally, the question of releasing him on bail does not arise. Otherwise also Section 437 of the Code of Criminal Procedure comes in our way in granting his application for bail. This application is therefore dismissed. Rule is discharged.


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