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The Law of punishments of transportation for life and imprisonment for life - a Critical appraisal
by Balwant Singh Malik*
Cite as : (1999) 5 SCC (Jour) 4
I. Introduction
The terms "transportation for life" and "penal settlement" have a distinctly historical and colonial flavour and at first glance seem irrelevant today. However, they require serious analysis and reconsideration because these colonial inventions have led to enduring confusion, anomalies, and injustice, in so far as the law relating to imprisonment for life and rigorous imprisonment are concerned.
Transportation for life, which involved sending of a convict into banishment or exile, had been authorised as one form of punishment for certain serious crimes by the East India Company's Government under the "General Regulations" long before the said punishment was enacted in the Indian Penal Code (IPC) in 1860. Lord Cornwalis sent the first batch of Indian convicts into banishment to Bencoolen in S.W. Sumatra in 1787, at about the same time when England started transportation of its convicts to Australia. "Of this Penal Settlement, it was reported thirty years later that the convicts rarely desired to return to their country. They were encouraged to marry, formed connections in the place and found so many inducements to remain there that they practically became colonists." [Dr B.K. Bhattacharya: Prisons (1958)]
"Indian convicts sent to Singapore Penal Settlement were under no restraint and received no support and were allowed to provide for themselves. They differed in no respect from free population of the place, excepting that they had to give security for appearance whenever required." [Tapas Kumar Banerji: Background to Indian Criminal Law (1963)]
About Andaman Penal Settlement, Banerji quoting a letter dated 8th February, 1856 of Captain Henry Hopkinson, Governor of Arakan States: "Prisoners at first would have to be employed in making the station with its roads, barracks, public buildings and jails and when completed, those who had not forfeited the privilege by misconduct would receive ticket of leave and be allowed to labour for their own property."
Such other settlements were also established at Panang (1796), Mauritius (1817), Moulmien and Tenassarim (1822) and Malacca (1826).
II. A critique of Supreme Court decision in Godse case[1]
Godse was sentenced to transportation for life. In fact he was made to undergo a sentence of rigorous imprisonment in jails in India instead, without a formal order of commutation of his sentence. After completing twenty years imprisonment (including remissions), he prayed for release.
The Constitution Bench of the Supreme Court formulated the following question:
"Whether, under the relevant statutory provisions, an accused, who was sentenced to transportation for life, could legally be imprisoned in one of the jails in India, if so, what was the term for which he could be so imprisoned?"
The Constitution Bench ruled:
"Before Act 26 of 1955, a sentence of transportation for life could legally 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 under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to imprisonment for life is bound in law to serve the life term in prison."
Godse's case is an extant precedent even as regards cases of imprisonment for life, and remains a subject of current interest.
Section 53 of the Indian Penal Code (IPC) as in force prior to the Code of Criminal Procedure (Amendment) Act, (Act 26 of 1955) provided for six different punishments to which offenders were liable. Clauses (2) and (4) thereof, are quoted:
"Secondly.-Transportation;
Fourthly.-Imprisonment, which is of two descriptions, namely:
(1) Rigorous, that is, with hard labour;
(2) Simple;"
The punishment of transportation under the IPC depending on the particular offence could be for life or for a term (of years) and involved the convict being sent into banishment to an appointed place or locality[2] or into exile[3] to such places commonly known as Penal Settlements.
The Code of Criminal Procedure, 1898 (CrPC) under Section 381 and Section 383 read with commitment warrant in Form 36[4] enacted in the Fifth Schedule vested a Court of Session with the power and authority to commit a person sentenced to transportation for life or for a term (of years) into prison custody temporarily, awaiting his transportation.
Section 3 of the Prisoners Act[5] authorised officers in charge of the prisons in India to keep safely transportation convicts in intermediate or temporary prison custody in accordance with the judicial order of the court in its warrant, only until arrangements for their transportation to a Penal Settlement were made.
The judicial order of a Court of Session in the warrant aforesaid[6] to the officers in charge of prisons was in these terms:
"This is to authorise and require you, the said superintendent safely to keep the said (prisoner's name) in your custody in the said jail, as by law is required, until he shall be delivered over by you to the proper authority and custody for the purpose of undergoing the punishment of transportation for life for a term (of years) under the said order."
The expression "as by law is required" in the warrant refers to the special provision in Section 58 IPC, which provided:
"In every case in which a sentence of transportation is passed, the offender, until he is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment...."
Section 15 of the Prisoners Act conferred power and imposed obligation on officers in charge of prisons to give effect to sentences, orders, and warrants of courts and tribunals mentioned in that section.
Section 16 of the Prisoners Act declared the authority of a warrant of a court or tribunal as follows:
"16. A warrant under the official signature of an officer of such a court or tribunal, as is referred to in Section 15, shall be sufficient authority for holding any person in confinement or for sending any person for transportation in pursuance of the sentence passed upon him." (emphasis supplied)
The CrPC, 1861 under Section 51, the CrPC, 1872 under Section 319(1), the substituted[7] Section 33 of the Prisoners Act 5 of 1871 and lastly, Section 32 of the Prisoners Act 3 of 1900 conferred special power on the Governor-General and later on the Local Government to appoint special places called Penal Settlements by notification within British India for the purpose of undergoing sentences of transportation. These provisions also imposed a statutory obligation on the Local Government to pass orders for the removal of transportation convicts from a prison to the places - Penal Settlements so appointed.
Para 1(2) of the Andaman and Nicobar Island Manual[8] provided:
"The Penal Settlements of Port Blair and Nicobar Islands have been specially appointed as the 'places' within the meaning of Section 33 of the Prisoners Act 5 of 1871, which is equivalent to Section 32 of the Prisoners Act 3 of 1900, and 'term' as well as 'life convicts' are permitted to be transported to them."
It, therefore, follows from this statutory scheme that a person sentenced to transportation for life or for a term (of years) had necessarily to go out of the prisons in India to the special places or localities called Penal Settlements appointed by the executive authorities by notification. Thus Godse's confinement in the prison under a sentence of rigorous imprisonment in lieu of his sentence of transportation for life unless the same was deemed to be commuted under Section 55 IPC or Section 402(1) of CrPC, 1898, for a term not exceeding 14 years, was unlawful from the expiry of the reasonable period considered necessary for making arrangements for his transportation and at any rate after he had completed 14 years inclusive of remissions.
Sub-section (2) of Section 53-A IPC relied upon by the Constitution Bench as the sole basis or legal authority for justifying Godse's imprisonment in a prison after Act 26 of 1955, as will be shown next, had no application to a case of transportation for life. Therefore the answer to the legal question: "whether, under the relevant statutory provisions, an accused, who was sentenced to transportation for life, could legally be imprisoned in one of the jails in India", formulated by the Constitution Bench, should have been answered in the negative.
III. Section 53-A(2) IPC not applicable to a sentence of transportation for life
The Constitution Bench has made sub-section (2) of Section 53-A IPC as the sole basis to convert Godse's sentence of "transportation for life" into a sentence of "rigorous imprisonment for life" with a view to justify his imprisonment in the prisons for the period after Act 26 of 1955. It is submitted with respect that the finding involves a misreading of the provision.
Sub-section (2) of Section 53-A IPC in terms, applied "in every case in which a sentence of transportation FOR A TERM ONLY (of years) has been passed ...". No such provision in this clause was enacted for a case in which a sentence of transportation for life was passed for, such cases were covered in sub-section (1) of Section 53-A itself. (emphasis supplied)
The Joint Committee which reported[9] on the Code of Criminal Procedure (Amendment) Bill, 1954 intended to apply this provision [sub-section (2)] to a sentence of transportation for a term only. It may be added that the punishment of transportation for a term (of years) was authorised under Sections 511, 121-A, 124-A and in the general provision under Section 59 IPC and such parity already existed under Section 59 IPC between a term transportation and a term of rigorous imprisonment and none with respect to transportation for life. Transportation for life could in no case be equated with a sentence of rigorous imprisonment longer than 14 years[10] under any provision of the law.
Besides, the finding is discriminatory and involved infliction of a greater penalty on Godse in breach of Articles 14 and 20 of the Constitution when Act 26 of 1955 did not substitute a punishment of "rigorous imprisonment for life" in Section 53(2) and in fifty-one penal sections of the IPC including Section 302 under which Godse had been sentenced as well as in the laws other than the IPC by or under sub-section (1) of Section 53-A itself.[11]
Apart from this, the provision was only meant to provide for treatment of a convict in the prison for default of his transportation and it could not take the place of a statutory warrant of commitment issued by a competent court requiring the officer in charge of a prison to give effect to the sentence in his custody in the prison, without which prison confinement could not be lawful.
In 1919, the Lahore Chief Court had faced this very problem of untransported convicts found confined in jails and clarified the law.
IV. Clarification by the Lahore Chief Court
In their Circular-Memo Bo. 11-927-G dated 11-2-1919[12] addressed to all Sessions Judges in the Punjab and Delhi, the Chief Court clarified the correct legal position. The Circular-Memo being in the nature of contemporanea expositio, and not being easily available, is quoted in full:
"The Hon'ble Judges recently had occasion to address the Local Government on certain points connected with convicts sentenced to transportation but actually undergoing rigorous imprisonment in jails in the Punjab. It was pointed out that the Indian Penal Code draws a considerable distinction between sentences of transportation and sentences of rigorous imprisonment. There are numerous offences for which a sentence of transportation for life can be passed, but there are only four sections under which a court can pass a sentence of rigorous imprisonment exceeding 10 years. Those sections are 222, 392, 457 and 458. Of these again, Section 222 is the only section under which 14 years' rigorous imprisonment can be awarded as an alternative for transportation for life. Ordinarily therefore a sentence of 10 years' rigorous imprisonment is regarded by the Code as the equivalent of a sentence of transportation for life, the reason being no doubt that the conditions attending transportation were expected to be less arduous than those of a convict undergoing rigorous imprisonment.
2. Attention was drawn to the fact that there appears to be no legal authority for the practice under which convicts sentenced to transportation for a term of years are rigorously imprisoned for the same term in Punjab jails. Section 58 of the Indian Penal Code no doubt provides that any convict sentenced to transportation may, until he is transported, be dealt with in the same manner as if sentenced to rigorous imprisonment; but it is sufficiently clear that such rigorous imprisonment was intended to be temporary. Section 32 of the Prisoners Act provides that prisoners sentenced to transportation can be legally confined at certain places appointed by notification. The places so appointed in the Punjab are named in paragraph 719 of the Jail Manual. It appears to the Hon'ble Judges that as soon as a prisoner is confined in one of those places, he must be deemed to have been transported, and they do not know of any legal authority under which he can be rigorously imprisoned for the rest of the term of his sentence.
3. The Hon'ble Judges therefore suggested that either the rules should be relaxed and more prisoners should be sent to the Andamans, or if all prisoners cannot be transported beyond the seas, there should be similar establishments elsewhere in British India where the conditions will be similar to those obtaining in the Andamans, and failing the adoption of either of these suggestions, it was recommended that sentences of transportation should be regularly revised as soon as it is known that the convict will not be transported beyond the seas.
4. The Lieutenant-Governor in accepting the suggestion in regard to cases that may arise in the future that such sentences should be open to revision, remarked that the court which sentences a man to transportation is in the best position to advise what period of imprisonment would be suitable in case it is found impracticable for the convict to be transported beyond the seas.
5. The following instructions are accordingly issued for the guidance of courts passing sentences of transportation. When any such court passes a sentence of transportation for a term, it should at the same time express an opinion, on which the Local Government could act under the power conferred by Section 55 of the Indian Penal Code, as to the amount of imprisonment suitable in lieu of the sentence of transportation should it be found impracticable for the convict to be transported beyond the seas. Such opinion should be expressed by the court in a separate note and must not be embodied in the judgment of the court."
In order to legalise prison confinement of all untransported convicts by way of rigorous imprisonment, the Lahore High Court with the approval of the Governor converted these instructions into statutory Rule 3 in Chapter 19-F, Vol. III of their Rules and Orders[13] and the Punjab Government added a corresponding provision in para 726-A in Chapter 24 of the Punjab Jail Manual[14], providing "procedure" for compulsory commutation on regular basis of all sentences of transportation of untransported convicts under Section 55 IPC or Section 402(1) of the CrPC, 1898 as the case may be, for a term of rigorous imprisonment as advised by the sentencing court under Rule 3 aforesaid and in no case exceeding 14 years.
To conclude these points, it is submitted with respect that the Judicial Committee of the Privy Council in Pandit Kishori Lal case[15] relied on in Godse case[1] overlooked practically all the relevant statutory provisions aforesaid including these rules providing for compulsory commutation of sentences of transportation made after the clarification by the Lahore Chief Court and reached its judgment per incuriam. The Constitution Bench in Godse[1] it is submitted with respect, also had no occasion to consider the aforementioned statutory scheme governing the mode and places of undergoing of sentences of transportation[16]. These decisions were therefore, incorrect even as regards the cases involving the previous life punishment and at any rate, they could have no application to sentences of imprisonment for life.
V. Transition from transportation for life to imprisonment for life
The Indian Jails Committee 1919-20 recommended[17] that:
"the Indian Penal Code should be amended by substitution of 'rigorous imprisonment' for 'transportation' ".
The Joint Committee which reported on the Code of Criminal Procedure (Amendment) Bill, 1954[15] on the contrary proposed:
"... the mere substitution of the expression 'imprisonment for life' for 'transportation for life' should not change the nature of punishment. As a form of punishment, imprisonment for life must remain distinct from rigorous or simple imprisonment."
Parliament, when substituting "imprisonment for life" for "transportation for life" in the IPC, CrPC and other cognate laws by Section 117 and the Schedule of the Code of Criminal Procedure (Amendment) Act 26 of 1955, literally followed these two proposals of its Joint Committee by not changing the nature of the punishment earlier called "transportation for life" by now calling it "imprisonment for life", and by keeping imprisonment for life distinct from rigorous or simple imprisonment, as well as by ignoring altogether the recommendation of the Indian Jails Committee aforementioned, suggesting substitution of "rigorous imprisonment" for "transportation". It is for this reason the amended Section 53 IPC, which lists the punishments to which offenders are liable under the Code, contains two separate items reading:
"Secondly.-Imprisonment for life;
Fourthly.-Imprisonment, which is of two descriptions, namely:
(1) Rigorous, that is, with hard labour;
(2) Simple;"
The resemblance of the nomenclatures of "imprisonment for life" and of "imprisonment" - rigorous or simple, does not have the effect of integrating the two punishments into one. Even the definition of "imprisonment" under Section 3(27) of the General Clauses Act, 1897, keeps the two punishments separate, because the draftsman relying on the report of the Joint Committee neither defined the life sentence to be "rigorous or simple" nor made it executable in a prison by appropriately empowering the relevant criminal court.
If the executive authorities intended or intend to convert transportation for life or "imprisonment for life" into "imprisonment" - rigorous or simple, they could or can do so only by necessarily commuting these punishments into one of rigorous or simple imprisonment under Section 55 IPC or Section 402 of the CrPC, 1898 now CrPC, 1973 for a term not exceeding 14 years.
The Law Commission of India in their 39th Report[18] has stated:
"Under the law as it stands at present, a sentence of 'imprisonment for life' cannot be equated either with rigorous or with simple imprisonment for life."
The State of Uttar Pradesh in the Statement of Objects and Reasons[19] for the Prisons (U.P. Amendment) Act 11 of 1962 stated:
"... It has not been provided anywhere in the existing law as to what treatment should be accorded to persons sentenced to imprisonment for life...."
Section 58 IPC, on the basis of which the Judicial Committee in Pandit Kishori Lal case[15] purported to equate "transportation for life" with "rigorous imprisonment for life", stands omitted from the IPC[20]. The Constitution Bench in Godse case[1] purported to equate Godse's sentence of transportation for life with rigorous imprisonment for life under Section 58 IPC, before its omission by Act 26 of 1955 and under the transitional provision in Section 53-A(2) after the said Act. But neither Act 26 of 1955 nor any other provision in the IPC define imprisonment for life to be "rigorous".
The reason for Parliament neither integrating imprisonment for life with imprisonment - rigorous or simple, nor directly so defining it becomes clear from the fact that Parliament keeping the views of its Joint Committee intending no change in the "nature" of the life punishment, retained under Section 32 of the Prisoners Act, 1900, the "special places" or Penal Settlements earlier meant for transportation for life, for undergoing sentences of imprisonment for life. Act 26 of 1955 by Sections 72 and 115(c) respectively merely substituted imprisonment for life in Section 383 and in Warrant Form 36 in the Fifth Schedule of the CrPC, 1898 (later so in Section 418 and Warrant Form 41 in the Second Schedule to the CrPC, 1973).
Therefore, now the package consisting of Section 413, Section 418, Warrant Form 41 in the Second Schedule to the CrPC, 1973 read with Sections 3, 8, 15, 16 and 32 of the Prisoners Act as in the case of transportation for life, requires the removal of all life convicts from the prisons to the open-air Penal Settlements for undergoing their sentences of imprisonment for life. Act 26 of 1955 did not in fact substitute rigorous imprisonment for transportation as recommended by the Indian Jails Committee[17] nor the said Act replaced a "Prison" in lieu of a "Penal Settlement" for undergoing a sentence of imprisonment for life in the prison, by enlarging the power of the High Court or of a Court of Session to issue a warrant of commitment to the officer in charge of a prison for confinement in prison of a life convict for the whole of the duration of this sentence instead of a warrant only for temporary or intermediate custody, as done by the then State of Madras.
The then State of Madras (now Tamil Nadu) by inserting the expression "imprisonment for life" by Section 3 of the Prisoners (Madras Amendment) Act 11 of 1958 in Section 7 of the Prisoners Act, 1900, has enlarged the power of the courts to direct the execution of sentences of imprisonment for life in the prisons. Amended Section 7 reads:
"7. Where any person is sentenced by the High Court or by a Court of Session to imprisonment for life or to imprisonment or to death, the Court shall cause him to be delivered to the Superintendent together with its warrant and such warrant shall be executed by the Superintendent and returned by him to the High Court or the Court of Session, as the case may be, when executed." (emphasis supplied)
By Section 4 of the Madras Act, Section 8 of the Prisoners Act providing for "intermediate custody" for life convicts in a prison, was omitted. By Section 9 of the Madras Act, Penal Settlements envisaged under Section 32 of the Prisoners Act, were abolished for Tamil Nadu. Therefore, it follows that in the absence of any provision in pari materia to Sections 58 and 53-A(2) IPC in relation to the punishment of imprisonment for life and also there being no provisions in the CrPC, 1898 (and now CrPC, 1973) similar to those under the Prisoners (Madras Amendment) Act 11 of 1958, the Constitution Bench in Godse[1] had no basis to finally hold that "unless the said sentence is commuted or remitted under the relevant provisions of the IPC or CrPC, a prisoner sentenced to imprisonment for life is bound in law to serve the life term in prison".
VI. Practices in vogue contrary to law
Under the powerful impact of the decision in Godse case[1] and for its being followed[21] in a large number of cases, the High Courts and the Court of Session in the country notwithstanding that there was or is no provision and an appropriate warrant form in the CrPC, 1898 or CrPC, 1973 empowering them to direct the execution of life sentences in the prisons, are ordering the confinement of all life convicts in the prisons for the purpose of undergoing life sentences in the same manner as provided under Section 7 of the Prisoners Act as amended in Tamil Nadu, in violation of the statutory scheme (supra), by using an unauthorised Warrant Form 34 in Schedule II, actually enacted for the execution of the pre-existing punishment of "imprisonment", rigorous or simple.
The officers in charge of prisons, who are bound under Warrant Form 41, Sections 3 and 16 of the Prisoners Act, 1900 to remove all persons sentenced to imprisonment for life to the special places, Penal Settlements envisaged under Section 32 of the Prisoners Act are executing life sentences unlawfully in the prisons.
The State Governments concerned, who are required to appoint places - Penal Settlements by notification either within the State or in some other State with the consent of the Government of that other State, and are further required to remove all life convicts from the prisons in the State to the places - Penal Settlements so appointed, have ceased to do so in breach of their legal obligations.
The State Governments except in Tamil Nadu are letting the life convicts undergo sentences of life imprisonment in prisons by way of "rigorous imprisonment". The latter is a distinct punishment under Section 53(4) IPC and cannot be awarded by the High Court or by the Court of Session under Section 235(2) read with Section 28 of the CrPC, 1973 for the prescribed punishment is mere "imprisonment for life" under the penal sections including Section 302 IPC. This amounts to infliction of a "greater penalty" forbidden by Article 20(1) of the Constitution.
This astounding situation in regard to the execution of the punishment of imprisonment for life, is required to be corrected by the competent legislature[22] by establishing Convict Settlements.
VII. A Critical Analysis of Naib Singh case[21](vii)
A two-Judge Bench of the Supreme Court in Naib Singh v. State of
Punjab[21](vii) following the ratio of Kishori Lal[15] and Godse[1] refused the release of the life convict from the prison, by ruling:
"(i) A sentence of transportation for life could be and a sentence of imprisonment for life can be made executable in a local jail by constituting such jails as the 'places' within the meaning of Section 32 of the Prisoners Act, 1900.
(ii) Apart from Section 32 of the Prisoners Act, Section 383 of CrPC, 1898 and Section 418 of CrPC of 1973 also contain the necessary legal authority and power under which a criminal court by issuing a warrant direct the execution or carrying out of a sentence of imprisonment for life in the local jails.
(iii) The nature of punishment required to be suffered under a sentence of imprisonment for life awardable on or after January 1, 1956, is rigorous imprisonment."
All the three findings stated respectfully, are in derogation of and contrary to the statutory scheme in Parts III-VI (supra) and the decision like those in Kishori Lal[15] and Godse[1] is incorrect.
The first finding is incorrect as the Division Bench did not keep in mind the legal distinction between a "prison" established by notification under Section 3 of the Prisons Act, 1894 and a "place" or penal settlement notified under Section 32 of the Prisoners Act, 1900. If certain jails were appointed by notification as "places" or penal settlements then they ceased to be "prisons" and convicts confined in the said penal settlement must be deemed to have been received there on transportation as explained by the Lahore Chief Court in its circular reproduced in Part V (supra). Such convicts after removal from a prison could not be legally regarded as undergoing their sentence in that prison from where they were removed.
The second finding is also incorrect because Section 383 of CrPC, 1898 had to be read along with Warrant Form XXXVI in the Vth Schedule and Section 418 of CrPC, 1973 has to be read with Warrant Form 41 in the IInd Schedule which conferred or confers authority and power on a criminal court to order confinement of a life convict in a prison temporarily, only until the convict was transported to a penal settlement and not for the purpose of undergoing his sentence in the prison. The Division Bench was expected to read Section 383 of CrPC, 1898 and Section 418 of CrPC of 1973 also along with the connected provisions in Sections 3, 7, 8, 15, 16 and 32 of the Prisoners Act, 1900, which together involved the life convicts going out of the prison system to the open air penal settlements.
The third finding is also incorrect. Sections 58 and 53-A(2) IPC under which Kishori Lal[15] and Godse[1] were required to undergo rigorous imprisonment for life instead of transportation for life, have since 1956 ceased to be in force and neither clause (2) of Section 53, which contains the definition of "imprisonment for life" nor any of the fifty-one sections of the IPC including Section 302 under which Naib Singh[21](vii) was sentenced enact any sentence called "rigorous imprisonment for life". The life punishment as provided for under the IPC is mere "imprisonment for life". All the findings in Naib Singh[21](vii) it is submitted with respect, has therefore to be regarded as per incuriam. The Central Law Commission in para 8 of its 39th Report has stated that no section of the IPC has enacted a sentence of rigorous imprisonment longer than fourteen years.
VIII. Conclusion
Punishment of transportation for life was one of exile or banishment to an appointed locality for the whole of the remainder of the convict's "natural life" unless the convict's sentence was remitted by the Government. If the Government intended to imprison such convicts in the jails, they had to necessarily commute such sentences to one of rigorous or simple imprisonment under Section 55 IPC or Section 402(1) CrPC, 1898 for a term of not more than 14 years. Parliament by passing the Amending Act, 1955 upon the recommendations of the Joint Committee did not intend to change the "nature" of punishment previously called "transportation for life" by now calling it "imprisonment for life" and by keeping it separate from the pre-existing punishment of "imprisonment" - rigorous or simple, including retaining the old places or open-air Convict Settlements for sending life convicts from prisons for undergoing their sentences of imprisonment for life there. The Amending Act, 1955 merely changed the name of life punishment without altering its meaning so much so that imprisonment for life was not included even in the definition of the term "imprisonment" under Section 3(27) of the General Clauses Act, 1897. Similarly, if the appropriate Government intended sentences of life imprisonment to be served by imprisoning of convicts in jails they have necessarily to commute such sentences to rigorous imprisonment for a term not exceeding 14 years. It, therefore, follows that a person sentenced to imprisonment for life cannot legally be made to serve a term longer than one which, aggregated with the period of remission earned, amounts to 14 years.
Where a sentence of imprisonment for life is not legally capable of being undergone in a 'prison' or involves commutation, Section 433-A of CrPC remains out of the way[23].
The decision in the Godse case[1] requires reconsideration by a competent bench of the Hon'ble Supreme Court.
- 1 Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440 : AIR 1961 SC 600 : 1961 (1) Cri LJ 740
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- 2 See Penal Law of India, 9th Edn., p. 17 by Sir H.S. Gour; Chapter 19-H of Lahore High Court Rules and Orders (1942); Punjab Jail Manual (1874), para 912, Register 13
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- 3 See para 4 of 39th Report of Law Commission of India - a quotation from Note 'A' annexed to the draft Penal Code drafted by Lord Macaulay
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- 4 See also Warrant Form 49 in Vol. VI-B of the Lahore/Punjab High Court Rules and Orders (1942), by which Godse was confined in jails in Punjab and Maharashtra
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- 5 See Central Act 3 of 1900
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- 6 Warrant Form 36 in the Fifth Schedule of the CrPC, 1898 and another warrant referred to in Note 10 supra
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- 7 By Section 2 of the Prisoners (Amendment) Act 9 of 1882
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- 8 A Government of India publication of 1908
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- 9 See para 8 of its Report (1954), Gazette of India, 1954, Part II, Section 2 (Extn.), p. 413
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- See Section 55 IPC, Section 402(1) of CrPC, 1898 and para 8 of the 39th Report of the Law Commission (1968)
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- See Section 117 and the Schedule to Act 26 of 1955 or the amended text of the relevant sections in the IPC which prescribe no sentence called "rigorous imprisonment for life"
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- See Punjab Record (1919), Vol. 54, Part II-Executive, pp. 1-2
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- See 1942 Edition of the Lahore-Punjab High Court Rules which were in force up to December 31, 1955 when transportation was abolished
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- See Punjab Jail Manual, (1916) new paragraph added in 1920
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- Pandit Kishori Lal v. King Emperor, (1944) LR 72 IA 1
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- See p. 443 last but one sub-para of SCR in Note 1 (supra)
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- Report of Alexander Cardew Committee, para 568 (1921)
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- Particular attention is invited to paras 1, 8, 17 and 23
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- See U.P. Govt. Gazette (Extra.) dated August 1961
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- Item 4 of the Schedule to Act 26 of 1955 omitted Section 58 IPC
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- This judgment has already been relied upon as precedent in these cases:
(i) State of M.P. v. Ratan Singh, (1976) 3 SCC 470
(ii) State of M.P. v. Ajit Singh, (1976) 3 SCC 616
(iii) Maru Ram v. Union of India, (1981) 1 SCC 107
(iv) Bhagirath v. Delhi Admn., (1985) 2 SCC 580
(v) State of Punjab v. Joginder Singh, (1990) 2 SCC 661
(vi) Ashok Kumar v. Union of India, (1991) 3 SCC 498
(vii) Naib Singh v. State of Punjab, (1983) 2 SCC 454
Return to Text - See Legislative Entry 4 of State List in the Seventh Schedule to the Constitution
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- See (1) Ghelabhai v. State of Maharashtra, 1986 Cri LJ 779 (Bom); (2) State of Punjab v. Kesar Singh, (1996) 5 SCC 495; besides, power of commutation under Articles 72/161 of the Constitution and under Section 55 IPC, Sections 416, 433(b) and 434 not controlled by Section 433-A of CrPC, 1973Return to Text
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