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PETITIONER:

ASHOK KUMAR ALIAS GOLU

Vs.

RESPONDENT:

UNION OF INDIA AND ORS.

DATE OF JUDGMENT10/07/1991

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

SAWANT, P.B.

AGRAWAL, S.C. (J)

CITATION:

1991 SCR (2) 858 1991 SCC (3) 498

JT 1991 (3) 46 1991 SCALE (2)17

ACT:

Constitution of India, 1950: Articles 14 and 21, 245 &

246-Insertion of S. 433A into the Code of Criminal

Procedure, 1973-Validity of-Colourable legislation fraud-

Meaning of-Doctrine of pith and substance-Applicability of.

Articles 72, 161: Clemency-Powers of-Sections 54 and 55

IPC-Section 433A Cr. P.C. and provisions of Remission Rules-

Whether subject to the overriding powers of clemency.

Indian Penal Code, 1860: Sections 45, 54, 55 and 57-

Fixing terms of imprisonment-`Life imprisonment'-Whether

imprisonment for full span of life.

Sections 54 and 55: Whether subject to overriding

powers of Articles 72/161 of the Constitution of India.

Criminal Procedure Code, 1973: Section 433A-Insertion

of-Whether a colourable legislation-Constitutional validity

of-IPC (Amendment) bill not passed by Lok Sabha while

passing Cr. P.C. (Amendment) Bill-Government claiming that

both the bills were interlinked-Effect on the Amendment

Bill passed, inserting S. 433A-Prisoners covered under the

Section-Prisoners who were sentenced to death by Courts, but

whose sentence commuted to life imprisonment by executive

clemency-Whether forms a distinct and separate class.

Sections 432, 433 and 433A: Release of prisoners under

Remission Rules-Remittance of sentence-Exercise of power

under sections 432 and 433-Whether restricted by S.433A.

Rajasthan Prisons (Shortening of Sentences) Rules,

1950: Premature release of Prisoners-Whether subject to

overriding powers of Sections 432, 433 and 433A Cr. P.C. and

Articles 72/161 of the Constitution of India, 1950.

Statutory Construction: External aid-Language of a

provision

859

plain and clear-Reading down the same with the aid of a Bill

which had not become an enactment-Whether could be resorted

to.

HEADNOTE:

The petitioner was convicted for murder and sentenced

to life imprisonment, which was confirmed by the High Court.

Later he filed a Writ Petition before the High Court for

premature release on the plea that he was entitled to be

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considered for release under the Rajasthan Prisons

(Shortening of Sentences) Rules, 1958 notwithstanding the

insertion of Section 433A in the Code of Criminal Procedure,

1973 with effect from 18.12.1978, just two days before his

conviction. It was contended that Section 433A Cr. P.C.

which places an embargo of 14 years imprisonment before

premature release could not curtail the constitutional power

vested in the Governor by virtue of Article 161 of the

Constitution. The High Court, dismissed the Writ Petition

on the ground that the petitioner's representations to the

Government and State Home Minister were pending

consideration. However, the High Court directed that the

two representations of the petitioner should be disposed of

within one month.

Unable to secure his release from the High Court as

also from the State Government, the petitioner filed the

present Write Petition before this Court, contending that

the insertion of Section 433A in the Code of Criminal

Procedure was invalid; that in the absence of guidelines

under Arts. 72/161 of Constitution, Section 433A Cr. P.C.

could not apply to life convicts; that the Rajasthan Prisons

(Shortening of Sentences) Rules, 1958 would prevail over

Section 433A Cr. P.C., and that the constitutional guarantee

under Articles 14 and 21 was violated.

Dismissing the Writ Petition, this Court

HELD: 1.1. It is only when a legislature which has no

power to legislate frames a legislation so camouflaging it

as to appear to be within its competence when it knows it is

not, it can be said that the legislation so enacted is

colourable legislation. If in pith and substance the

legislation does not belong to the subject falling within

the limits of its power but is outside it, the mere form of

the legislation will not be determinate of the legislative

competence. [871C; 872C]

1.2. It is not a case of legislative incompetence to

enact section 433A. No such contention was raised.

Besides the question of vires of section 433A of the Code

has been determined by the Constitution Bench of this Court

in Maru Ram's case. This Court Repelled all the thrusts

aimed at challenging the constitutional validity of section

433A. [871A]

860

1.3. It is no body's contention that Parliament was not

competent to amend the Criminal Procedure Code by which

section 433A was inserted. Whether or not the connecting

Indian Penal Code (Amendment) Bill ought to have cleared or

not was matter left to the wisdom of the Lok Sabha. Merely

because the Criminal Procedure Bill was made law and the

Indian Penal Code (Amendment) Bill was passed by the Rajya

Sabha did not obligate the Lok Sabha to clear it. The Lok

Sabha could have its own views on the proposed Indian Penal

Code amendments. It may agree with the executive's policy

reflected in the Bill, with or without modifications, or not

at all. Merely because in the subsequent instructions

issued by the letter of July 10, 1979 and the accompanying

note, the Joint-Secretary had interlinked the two Bills, the

Lok Sabha was under no obligation to adopt the measure as

such representation could not operate as estoppel against

it. It is obvious that no question of mala fides on the

part of the legislature was involved in the enactment of one

legislation and failure to enact another. There is no

question of `legislative fraud' or `colourbale legislation'

involved in the backdrop of the legislative history of

section 433A of the Code of Criminal Procedure. [872D-H;

873A]

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1.4. In the present case if both the Bills had become

law, then in understanding or construing one legislation or

the other, the scheme common to both would be kept in view

and be permitted to interact. But where the linkage does

not exist on account of the Indian Penal Code (Amendment)

Bill not having become law, section 433A cannot be read

down to apply to only those classes of capital offences to

which it would have applied had the said Bill been passed by

the Lok Sabha in the terms in which it was approved by the

Rajya Sabha. The language of section 433A is clear and

unambiguous and does not call for extrinsic aid for its

interpretation. To read down or interpret section 433A of

the Code with the aid of the changes proposed by the Indian

Penal Code (Amendment) Bill would tantamount to treating the

said Bills forming part of the Indian Penal Code, which is

clearly impermissible. To put such an interpretation with

the aid of such extrinsic material would result in violence

to the plain language of section 433A of the Code. [873D-F]

Maru Ram v. Union of India, [1981] 1 SCR 1196,

followed.

K.C. Gajapati Narayan Deo v. State of Orissa, [1954]

SCR 1 and Sonapur Tea Co. Ltd. v. Must Mariruznessa, [1962]

1 SCR 724, relied on.

861

State of Himachal Pradesh v. A Parent of a student of

Medical College, Simla, [1985] 3 SCC 169 and W.R. Moram v.

Deputy Commissioner of Taxation for N.S.W., [1940] AC 838,

referred to.

2.1. The law governing suspension, remission and

commutation of sentence is both statutory and

constitutional. The stage for the exercise of this power

generally speaking is post-judicial, i.e., after the

judicial process has come to an end. The duty to judge and

to award appropriate punishment to the guilty is a judicial

function which culminates by a judgment pronounced in

accordance with law. After the judicial function thus ends

the executive function of giving effect to the judicial

verdict commences. [873G-H; 874A]

2.2. One who could have been visited with the extreme

punishment of death but on account of the sentencing

court's generosity was sentenced to the lesser punishment of

imprisonment for life and another who actually was sentenced

to death but on account of executive generosity his

sentence was commuted under section 433(a) for imprisonment

for life have been treated under section 433A as belonging

to that class of prisoners who do not deserve to be released

unless they have completed 14 Years of actual

incarceration. Thus, the effect of section 433A is to

restrict the exercise of power under sections 432 and 433 by

the stipulation that the power will not be so exercised as

would enable the two categories of convicts referred to in

section 433A to freedom before they have completed 14 years

of actual imprisonment. This is the legislative policy

which is clearly discernible from the plain language of

section 433A of the Code. Such prisoners constitute a

single class and have, therefore, been subjected to the

uniform requirement of suffering atleast 14 years of

internment. [874G-H; 875A-C]

3. The expression `life imprisonment' must be read in

the context of section 45 IPC. Read so, it would ordinarily

mean imprisonment for the full or complete span of life.

Section 65, 116, 120 and 511 of the Indian Penal Code fix

the term of imprisonment thereunder as a fraction of the

maximum fixed for the principal offence. It is for the

purpose of working out this fraction that it became

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necessary to provide under section 57 that imprisonment for

life shall be reckoned as equivalent to imprisonment for 20

years. If such a provision had not been made it would have

been impossible to work out the fraction of an indefinite

term. In order to work out the fraction of terms of

punishment provided in the above sections it was imperative

to lay down the equivalent term for life imprisonment.

[875G; 876C-E]

862

Gopal Goads v. State of Maharashtra, [1961] 3 SCR 440;

affirmed.

4.1 Unless the sentence for life imprisonment is

commuted or remitted by the appropriate authority under the

provisions of the relevant law, a convict is bound in law to

serve the entire life term in prison; the rules framed under

the Prisons Act or life statute may enable such a convict

to earn remissions but such remissions will not entitle him

to release before he has completed 14 years of incarceration

in view of section 433A of the Code unless of course power

has been exercised under Article 72/161 of the Constitution.

Where a person has been sentenced to imprisonment for life

the remissions earned by him during his internment in prison

under the relevant remission rules have a limited scope and

must be confined to the scope and ambit of the said rules

and do not acquire significance until the sentence is

remitted under section 432, in which case the remission

would be subject to limitation of section 433A of the Code,

or constitutional power has been exercised under Articles

72/161 of the Constitution. [878D-E]

4.2. Articles 72 and 161 confer the clemency power of

pardon, etc., on the President and the State Governors,

respectively. This constitutional power would override the

statutory power contained in sections 432 and 433 and the

limitation of section 433A of the Code as well as the power

conferred by sections 54 and 55 IPC. No doubt, this power

has to be exercised by the President/Governor on the advice

of his Council of Ministers. [880A-B]

4.3. Though in Maru Ram's case, this Court recommended

the framing of guidelines for the exercise of power under

Articles 72/161 of the Constitution of India, it had no

binding effect on the Constitution Bench which decided Kehar

Singh's case. Nor has this Court said anything in Kehar

Singh's case with regard to using the provisions of extent

Remission Rules as guidelines for the exercise of clemency

powers. [881H; 882A]

Maru Ram v. Union of India, [1981] 1 SCR 1196; Kehar

Singh v. Union of India, [1989] 1 SCC 204; Bhagirath v.

Delhi Administration, [1985] 3 SCR 743 and Gopal Godse v.

State of Maharashtra, [1961] 3 SCR 440, affirmed.

5. It is true that Articles 72/161 make use of two

expressions `remissions' with regard to punishment and

`remit' in relation to sentence but it is not proper to

express any opinion as to the content and amplitude of these

two expressions in the abstract, in the absence of a fact-

situation. [882B]

863

6.1 The hypothetical question whether it was

permissible in law to grant conditional premature release to

a life convict even before

completion of 14 years of actual imprisonment, which release

would tantamount to the prisoner serving time for the

purpose of section 433A Cr. P.C., need not be answered

without being fully aware of the conditions imposed for

release. In each case, the question whether the grant of

conditional premature release answers the test laid down by

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this Court in Maru Ram's case, would depend on the nature of

the conditions imposed and the circumstances in which the

order is passed and is to be executed. No general

observation can be made. [882C-H]

Maru Ram v. Union of India, [1981] 1 SCR 1196; referred

to.

7. In the instant case, petitioner has not completed 14

years of actual incarceration and as such he cannot invoke

sections 43 and 433 of the Code of Criminal Procedure. His

continued detention is consistent with section 433A of the

Code and there is nothing on record to show that it is

otherwise illegal and void. The outcome of his clemency

application under the Constitution is not put in issue in

the present proceedings if it has been rejected, and if the

same is pending despite the directive of the High Court it

would be open to the petitioner to approach the High Court

for the compliance of its order. [883E-F]

JUDGMENT:

ORIGINAL JURISDICTION: Writ (Crl.) Petition No. 96 of

1989.

(Under Article 32 of the Constitution of India).

Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the

Petitioner.

V.C. Mahajan Mrs. Indra Sawhney, Ms. A. Subhashini,

Aruneshwar Gupta, Surya Kant and I. Makwana for the

Respondents.

The Judgment of the Court was delivered by

AHMADI, J. Liberty is the life line of every human

being. Life without liberty is `lasting' but not `living'.

Liberty is, therefore, considered one of the most precious

and cherished possessions of a human being. Any attempt to

take liberties with the liberty of a human being is visited

with resistance. Since no human being can tolerate fetters

on his personal liberty it is not surprising that the

petitioner Ashok Kumar alias Golu continues to struggle for

his liberty, premature release, not fully content with the

enunciation of the law in this behalf

864

by this Court in Maru Ram v. Union of India, {1981] 1 SCR

1196.

The questions of law which are raised in this petition

brought under Article 32 of the Constitution arise upon

facts of which we give an abridged statement. On the basis

of a FIR lodged on October 21, 1977, the petitioner was

arrested on the next day and he along with others was

chargesheeted for the murder of one Prem Nagpal. The

petitioner was tried and convicted for murder on December

20, 1978 in Sessions Case No. 32 of 1978 by the learned

Sessions Judge, Ganganagar, and was ordered to suffer

imprisonment for life. His appeal, Criminal Appeal No. 40

of 1979, was dismissed by the High Court of Rajasthan. Since

then he is serving time. It appears that he filed a Habeas

Corpus Writ Petition No. 2963 of 1987 in the High Court of

Rajasthan at Jodhpur for premature release on the plea that

he was entitled to be considered for such release under the

relevant rules of Rajasthan Prisons (Shortening of

Sentences) Rules, 1958, (hereinafter alluded to as `the 1958

Rules') notwithstanding the insertion of Section 433A in the

Code of Criminal Procedure, 1973 (hereinafter called `the

Code') with effect from December 18, 1978, just two days

before his conviction. His grievance was that he was being

denied the benefit of early release under the 1958 Rules

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under the garb of the newly added Section 433A, on the

ground that it places a statutory embargo against the

release of such a convict `unless he has served atleast 14

years of imprisonment'. He contended that the said

provision could not curtail the constitutional power vested

in the Governor by virtue of Article 161 of the Constitution

which had to be exercised on the advice of the Council of

Ministers which advice could be based on a variety of

considerations including the provisions of the 1958 Rules.

The writ petition was, however, dismissed by the High Court

on October 31, 1988, on the ground that it was premature

inasmuch as the petitioner's two representations, one to the

Governor and another to the State Home Minister, were

pending consideration. The High Court directed that they

should be disposed of within one month. In this view of the

matter the High Court did not deem it necessary to consider

the various questions of law raised in the petition on

merits. After the rejection of his writ petition by the

High Court, the petitioner through his counsel addressed a

letter dated November 28, 1988 to the Governor inviting his

attention to the earlier representation dated August 29,

1988 and requesting him to take a decision thereon within a

month as observed by the High Court. Failing to secure his

early release notwithstanding the above efforts, the

petitioner has invoked the extraordinary jurisdiction of

this Court under Article 32 of the Constitution.

865

The petitioner's case in a nutshell is that under the

provisions of the 1958 Rules, a `lifer' who has served an

actual sentence of about 9 years and 3 months is entitled to

be considered for premature release if the total sentence

including remissions works out to 14 years and he is

reported to be of good behaviour. However, the petitioner

contends, his case for premature release is not considered

by the concerned authorities in view of the newly added

section 433A of the Code on the interpretation that by

virtue of the said provision the case of a `lifer' cannot be

considered for early release unless he has completed 14

years of actual incarceration, the provisions of sections

432 and 433 of the Code as well as the 1958 Rules

notwithstanding. According to him, even if the provisions

of sections 432 and 433 of the Code do not come into play

unless a convict sentenced to life imprisonment has

completed actual incarceration for 14 years as required by

section 433A, the authorities have failed to realise that

section 433A cannot override the constitutional power

conferred by Articles 72 and 161 of the Constitutional on

the President and the Governor, respectively, and the State

Government i.e., the Council of Ministers, could advise the

Governor to exercise power under Article 161 treating the

1958 Rules as guidelines. Since the petitioner had already

moved the Governor under Article 161 of the Constitution it

was incumbent on the State Government to consider his

request for early release, notwithstanding section 433A, and

failure to do so entitled the petitioner to immediate

release as his continued detention was, wholly illegal and

invalid. In support of this contention the petitioner has

placed reliance on the ratio of Maru Ram's decision.

The petitioner brands section 433A of the Code to be a

`legislative fraud' inasmuch as the said provision was got

approved by the Parliament on the assurance that the said

provision is complementary to the various amendments

proposed in the Indian Penal Code. In the alternative it is

contended that in any case this Court should by a process of

interpretation limit the scope of section 433A of the Code

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to those cases only to which it would have been limited had

the legislation proposing amendments in the Indian Penal

Code gone through. In any case after the decision of this

Court in Maru Ram's case, the efficacy of section 433A is

considerably reduced and the petitioner is entitled to early

release by virtue of the power contained in ARticle 161 read

with the 1958 Rules even if guidelines are not formulated

notwithstanding the subsequent decision of this Court in

Kehar Singh v. Union of India, [1989] 1 SCC 204. Counsel

submitted that after the decision of this Court in Bhagirath

v. Delhi Administration, [1985] 3 SCR 743 whereunder this

Court extended the benefit of section 428 of the Code even

866

to life convicts, the ratio in Gopal Godse v. State of

Maharashtra, [1961] 3 SCR 440 had undergone a change. On

this broad approach, counsel for the petitioner, formulated

questions of law which may be stated as under:

1. Whether the insertion of section 433A in the

Code was a legislative fraud inasmuch as the

connected legislation, namely, the Indian Penal

Code (Amendment) Bill XLII of 1972 did not become

law although passed by the Rajya Sabha as the IPC

(Amendment) Act, 1978, on November 23, 1978?

2. Whether on the ration of Maru Ram's decision, in

the absence of any guidelines formulated by the

State under Article 72 of 161 of the Constitution,

section 433A of the Code would not apply to life

convicts and the 1958 Rules will prevail for the

purpose of exercise of power under Article 72 of

161 of the Constitution?

Inter-connected with this question, the following .l

questions were raised:

a) Whether Maru Ram's decision is in conflict with

Kehar Singh's Judgment on the question of necessity

or otherwise of guidelines for the exercise of

power under Article 7 and 161 of the constitution?

b) Whether the use of two expressions "remission"

and "remit" in Articles 72 and 161 convey two

different meanings and if yes, whether the content

f power in the two expressions is different?

c) Whether the persons sentenced to death by Court,

whose death sentence has been commuted to life

imprisonment by executive clemency, form a distinct

and separate class for the purpose of application

of section 433A of the Code as well as for the

purpose of necessity (or not) of guidelines for

premature release in exercise of power under

Articles 72 and 161, from the persons who at the

initial stage itself were sentenced to life

imprisonment by court verdict? And whether in the

latter case guidelines are mandatory under Article

72 and 161 and a well designed scheme of remission

must be formulated if the constitutional guarantee

under Articles 14 and 21 is to be preserved?

d) Whether the whole law of remission needs to be

reviewed after Bhagirath's case wherein this Court

held that imprisonment

867

for life is also an imprisonment for a term and

that a life convict is entitled to set off under

section 428 Cr. P.C.?

e) Whether it is permissible in law to grant

conditional premature release to a life convict

even before completion of 14 years of actual

imprisonment notwithstanding section 433A of the

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Code? If yes, whether the grant of such conditional

release will be treated as the prisoner actually

serving time for the purpose of section 433A of the

Code?

First the legislative history. The Law Commission had

in its 42nd Report submitted in June, 1971 suggested

numerous changes in the Indian Penal Code (IPC). Pursuant

thereto an Amendment Bill No. XLII of 1972 was introduced in

the Rajya Sabha on December 11, 1972 proposed wide ranging

changes in the IPC. One change proposed was to bifurcate

section 302, IPC into two parts, the first part providing

that except in cases specified in the second part, the

punishment for murder will be imprisonment for life whereas

for the more heinous crimes enumerated in clauses (a) to

(c), of sub-section (2) the punishment may be death or

imprisonment for life. A motion for reference of the Bill

to the Joint Committee of both the Houses was moved in the

Rajya Sabha on December 14, 1972 by the then Minister of

State in the Ministry of Home Affairs and was adopted on the

same day. The Lok Sabha concurred in the motion of the

Rajya Sabha on December 21, 1972. The Joint Parliamentary

Committee presented its report to the Rajya Sabha on January

29, 1976 recommending changes in several clauses of the

Bill. While retaining the amendment proposed in section

302, IPC, it recommended inclusion of one more clause (d)

after clause (c) in sub-section (2) thereof and at the same

time recommended deletion of section 303, IPC. It also

recommended substitution of the existing section 57, IPC, by

a totally new section, the proviso whereto has relevance.

The proposed proviso was as under:

"Provided that where a sentence of imprisonment for

life is imposed on conviction of a person for a

capital offence, or where a sentence of death

imposed on a person has been commuted 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 reason which impelled the Committee to introduce the

above proviso was "That sometimes due to grant of remission

even murderers sentenced or commuted to life imprisonment

were released at the end

868

of 5 to 6 years." The Committee, therefore, felt that such a

convict should not be released unless he has served atleast

14 years of imprisonment. It is evident from the scheme of

the aforesaid recommendations that the proviso was intended

to apply to only those convicts who were convicted for a

capital offence (this expression was defined by clause 15 of

the Bill recommending substitution of section 40, IPC, as

`an offence for which death is one of the punishments

provided by law') or whose sentence of death was commuted

into one of imprisonment for life and not to those who were

governed by the first part of the proposed section 302, IPC.

It was pointed out by counsel that similar benefit would

have accrued to offenders convicted for offences covered

under section 305, 307 or 396 if the proposed sections 305,

307(b) and 396(b) had come into being. That, contends the

petitioner's counsel, would have considerably narrowed down

the scope of the proposed proviso to section 57, IPC, and

consequently the rigour of the said provision would have

fallen on a tiny minority of offenders guilty of a capital

offence. Pursuant to the recommendations made by the

Committee, two bills, namely, the IPC (Amendment) Bill,

1978, came to be introduced, the former was passed with

changes by the Rajya Sabha on November 23, 1978 while the

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latter was introduced in the Lok Sabha on November 8, 1978,

and in the Rajya Sabha on December 5, 1978. The proposal to

add a proviso to the proposed section 57, IPC did not find

favour as it was thought that the said subject matter

appropriately related to Chapter XXXII of the Code and

accordingly the said provision was introduced as section

433A in the Code. While the amendments to the Code became

law with effect from December 18, 1978, the IPC amendments,

though passed by the Rajya Sabha could not be got through

the Lok-Sabha and lapsed. It may here be mentioned that the

IPC Bill as approved by the Rajya Sabha contained the

proposal to divide section 302 into two parts, in fact an

additional clause was sought to be introduced in the second

part thereof and sections 305, 307 and 396 were also sought

to be amended as proposed by the Committee. This in brief

is the legislative history.

In the backdrop of the said legislative history,

counsel for the petitioner argued that a legislative fraud

was practised by enacting section 433A of the Code and

failing to carry out the corresponding changes in sections

302, 305, 307, 396, etc., assured by the passing of the

Indian Penal Code (Amendment) Act, 1978, by the Rajya Sabha

on November 23, 1978. According to him it is evident from

the scheme of the twin Amendment Bills that the legislative

intent was to apply the rigour of section 433A of the Code

to a small number of heinous

869

crimes which fell within the meaning of the expression

capital offence. It was to achieve this objective that

section 302, IPC was proposed to be bifurcated so that a

large number of murders would fall within the first part of

the proposed provision which prescribed the punishment of

life imprisonment only and thus fell beyond the mischief

of section 433A of the Code. To buttress his submission our

attention was invited to Annexure II to the petition which

is a copy of the letter dated July 10, 1979, written by the

Joint-Secretary in the Ministry of Home Affairs to Home

Secretaries of all the concerned State Governments

explaining the purport of the newly added section 433A.

After explaining that section 57, IPC, had a limited scope,

namely, calculating fractions of terms of imprisonment only,

he proceeds to state in paragraph 3 of the letter as under:

"The restrictions imposed by section 433A applies

only to those life convicts who are convicted for

offences for which death is one of the punishments

prescribed by law. In the Indian Penal Code

(Amendment) Bill, 1978 as passed by the Rajya Sabha

and now pending in the Lok Sabha, section 302 is

proposed to be amended so as to provide that the

normal punishment for murder shall be imprisonment

for life and that only in certain cases of

aggravating circumstances will the court have

discretion to award death sentences."

Then in paragraph 4 he proceeds to clarify as under:

"Even regarding these convicts the restriction

imposed by section 433A is not absolute for, the

Constitutional power of the Governor under Article

161 to commute and remit sentences remains

unaffected and can be exercised in each case in

which the exercise of this power is considered

suitable."

Then in paragraph 4 he proceeds to clarify as under:

"Even regarding these convicts the restriction

imposed by section 433A is not absolute for, the

Constitutional power of the Governor under Article

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161 to commute and remit sentences remains

unaffected and can be exercised in each case in

which the exercise of this power is considered

suitable."

In paragraph 6 of the detailed note appended to the said

letter, the legal position was explained thus:

"It may be pointed out that the restriction

introduced by section 433A does not apply to all

life convicts. It applies only to those prisoners

who are convicted of a capital offence i.e. an

offence for which death is one of the punishments

prescribed by law. Once the Indian Penal Code

(Amendment) Bill becomes the law, offenders

sentenced

870

under proposed section 302(i) will not be covered

by this provision as the offence will not be a

capital offence. Thus in future the restriction

introduced by section 433A will not be applicable

to them and will, in effect, cover only a very

small number of cases. Even in this small number

of cases the restriction will not in any way curb

the Constitutional power to grant remission and

commutation vested in the President or the Governor

by virtue of Articles 72 and 161."

There can be no doubt that by this letter it was clarified

that section 433A of the Code will apply to only those

convicted of a capital offence and not to all life convicts.

It is equally clear that the said provision was expected to

apply to exceptionally heinous offences falling within the

definition of `capital offence' once the Indian Penal Code

(Amendment) Bill became law. Section 433A was, therefore,

expected to deny premature release before completion of

actual 14 years of incarceration to only those limited

convicts convicted of a capital offence, i.e., an

exceptionally heinous crime specified in the second part of

the proposed section 302, IPC. Lastly it clarifies that

section 433A cannot and does not in any way affect the

constitutional power conferred on the President/Governor

under ARticle 72/161 of the Constitution. It cannot,

therefore, be denied that this letter and the accompanying

note does give an impression that certain provisions of the

Indian Penal Code (Amendment) Boll were interlinked with

section 433A of the Code.

Assuming the Criminal Procedure Code (Amendment) Bill

and the Indian Penal Code (Amendment) Bill were intended to

provide an integrated scheme of legislation, can it be said

that the failure on the part of the Lok Sabha to pass the

letter renders the enactment of the former by which section

433A was introduced in the Code, `a legislative fraud' as

counsel had liked to call it or to use a more familiar

expression `colourable exercise of legislative power'?

Counsel submitted that section 433A was got introduced on

the statute book by deception, in that, when the former Bill

was made law an impression was given that the twin

legislation which had already been cleared by the Rajya

Sabha on November 23, 1978 would in due course be cleared by

the Lok Sabha also so that the application of section 433A

would be limited to capital offences only and would have no

application to a large number of `lifers'. It must be

conceded that such would have been the impact if the Indian

Penal Code (Amendment) Bill was passed by the Lok Sabha in

the form in which the Rajya and approved it.

871

This is not a case of legislative incompetence to enact

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section 433A. No such submission was made. Besides the

question of vires of section 433A of the Code has been

determined by the Constitution Bench of this Court in Maru

Ram's case. This Court repelled all the thrusts aimed at

challenging the constitutional validity of section 433A. But

counsel submitted that the question was not examined from

the historical perspective of the twin legislations.

Counsel for the State submitted that it was not permissible

for us to reopen the challenge closed by the Constitution

Bench on the specious plea that a particular argument or

plea was not canvassed or made before that Bench. The

objection raised by counsel for the State Government is

perhaps not without substance but we do not propose to deal

with it because even otherwise we see no merit in the

submission of the petitioner's counsel. It is only when a

legislature which has no power to legislate frames a

legislation so camouflaging it as to appear to be within its

competence when it knows it is not, it can be said that the

legislation so enacted is colourable legislation. In K.C.

Gajapati Narayan Deo v. State of Orissa, [1954] SCR 1 the

Orissa Agricultural Income-tax (Amendment) Act, 1950, was

challenged on the ground of colourable legislation or a

fraud on the Constitution as its real purpose was to effect

a drastic reduction in the amount of compensation payable

under the Orissa Estates Abolition Act, 1952. The facts

were that a Bill relating to the Orissa Abolition Act, 1952

was published in the Gazette on January 3, 1950. It

provided that any sum payable for agricultural income-tax

for the previous year should be deducted from the gross

asset of an estate for working out the net income on the

basis whereof compensation payable to the estate owner could

be determined. Thereafter on January 8, 1950, a Bill to

amend the Orissa Agricultural Income-tax, 1947, was

introduced to enhance the highest rate of tax from 3 annas

to 4 annas in a rupee and to reduce the highest slab from

Rs. 30,000 to Rs. 20,000. The next Chief Minister, however,

dropped this Bill and introduced a fresh Bill enhancing the

highest rate to 12 annas 6 pies in a rupee and reducing the

highest slab to rs. 15,000 only. On the same becoming law

it was challenged on the ground that the real purpose of the

legislation was to drastically reduce the compensation

payable to the estate owners. Mukherjea, J., who spoke for

the Court observed as under:

"It may be made clear at the outset that the

doctrine of colourable legislation does not involve

any question of bona fides or mala fides on the

part of the legislature. The whole doctrine

resolves itself into the question of competency of

a particular legislature to enact a particular law.

If

872

the legislature is competent to pass a particular

law, the motives which impelled it to act are

really irrelevant. On the other hand, if the

legislature lacks competency, the question of

motive does not arise at all. Whether a statute is

constitutional or not is thus always a question of

power."

Thus the whole doctrine resolves itself into a question of

competency of the concerned legislature to enact the

impugned legislation. If the legislature has transgressed

the limits of its powers and if such transgression is

indirect, covert or disguised, such a legislation is

described as colourable in legal parlance. The idea

conveyed by the use of the said expression is that although

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apparently a legislature in passing the statute purported to

act within the limits of its powers, it had in substance and

reality transgressed its powers, the transgression being

veiled by what appears on close scrutiny to be a mere

pretence or disguise. In other words if in pith and

substance the legislation does not belong to the subject

falling within the limits of its power but is outside it,

the mere form of the legislation will not be determinate of

the legislative competence. In Sonapur Tea Co. Ltd. v.

Must. Mazirunnessa, [1962] 1 SCR 724 it was reiterated

relying on Gajapati's case that the doctrine of colourable

legislation really postulates that legislation attempts to

do indirectly what it cannot do directly. Such is not the

case before us. It is no body's contention that Parliament

was not competent to amend the Criminal Procedure Code by

which section 433A was inserted. Whether or not the

connecting Indian Penal Code (Amendment) Bill ought to have

been cleared or not was a matter left to the wisdom of the

Lok Sabha. Merely because the Criminal Procedure Bill was

made law and the Indian Penal Code (Amendment) Bill was

passed by the Rajya Sabha did not obligate the Lok Sabha to

clear it. The Lok Sabha to clear it. The Lok Sabha could

have its own views on the proposed Indian Penal Code

amendments. It may agree with the executive's policy

reflected in the Bill, with or without modifications, or not

at all. Merely because in the subsequent instructions

issued by the letter of July 10, 1979 and the accompanying

note (Annex. II) the Joint-Secretary had interlinked the two

Bills, the Lok Sabha was under no obligation to adopt the

measure as such representation could not operate as estoppel

against it. Even the indirect attempt on the part of the

High Court of Himachal Pradesh in the ragging case to force

the State Government to legislate, State of Himachal Pradesh

v. A Parent of a student of Medical College, Simla, [1985] 3

SCC 169 was disapproved by this Court as a matter falling,

outside the functions and duties of the judiciary. It is,

therefore, obvious that no question of mala fides on the

part of the legislature was involved in the enactment of one

legislation and failure to

873

enact another. There is no question of `legislative fraud'

or `colourable legislation' involved in the backdrop of the

legislative history of section 433A of the Code as argued on

behalf of the petitioner.

Counsel for the Petitioner, However, tried to seek

support form the Privy Council decision in W.R. Moram v.

Deputy Commissioner of Taxation for N.S.W., [1940] AC 838

Wherein the question to be considered was whether the

legislative scheme was a colourable one forbidden by section

5(ii) of the Australian Constitution. There was no attempt

to disguise the scheme as it was fully disclosed. The Privy

Council, while holding that the scheme was not a colourable

legislation, observed that `where there is admittedly a

scheme of proposed legislation, it seems to be necessary

when the `pith and substance' or `scope and effect' of any

one of the Acts is under consideration, to treat them

together and to see how they interact'. But that was a case

where the scheme was carried out through enactments passed

by the concerned legislatures. It is in that context that

the above observations must be read and understood. In the

present case also if both the Bills had become law, counsel

would perhaps have been justified in demanding that in

understanding or construing one legislation or the other,

the scheme common to both must be kept in view and be

permitted to interact. But where the linkage does not exist

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on account of the Indian Penal Code (Amendment) Bill not

having become law we are unable to appreciate how section

433A can be read down to apply to only those classes of

capital offences to which it would have applied had the said

Bill been passed by the Lok Sabha in the terms in which it

was approved by the Rajya Sabha. The language of section

433A is clear and unambiguous and does not call for

extrinsic aid for its interpretation. To accept the

counsel's submission to read down or interpret section 433A

of the Code with the aid of the change proposed by the

Indian Penal Code (Amendment) Bill would tantamount to

treating the provisions of the said Bill as forming part of

the Indian Penal Code which is clearly impermissible. To

put such an interpretation with the aid of such extrinsic

material would result in violence to the plain language of

section 433A of the Code. We are, therefore, unable to

accept even this second limb of the contention.

The law governing suspension, remission and commutation

of sentence is both statutory and constitutional. The stage

for the exercise of this power generally speaking is post-

judicial, i.e., after the judicial process has come to an

end. The duty to judge and to award the appropriate

punishment to the guilty is a judicial function which

culminates by a judgment pronounced in accordance with law.

After

874

the judicial function thus ends the executive function of

giving effect to the judicial verdict commences. We first

refer to the statutory provisions. Chapter III of IPC deals

with punishments. The punishments to which the offenders

can be liable are enumerated in section 53, namely, (i)

death (ii) imprisonment for life (iii) imprisonment of

either description, namely, rigorous or simple (iv)

forfeiture of property and (v) fine. Section 54 empowers the

appropriate government to commute the punishment of death

for any other punishment. Similarly section 55 empowers the

appropriate government to commute the sentence of

imprisonment for life for imprisonment of either description

for a term not exceeding 14 years. Chapter XXXII of the

Code, to which section 433A was added, entitled `Execution,

Suspension, Remission and Commutation of sentences' contains

sections 432 and 433 which have relevance; the former

confers power on the appropriate government to suspend the

execution of an offender's sentence or to remit the whole or

any part of the punishment to which he has been sentenced

while the latter confers power on such Government to commute

(a) a sentence of death for any other punishment (b) a

sentence of imprisonment for life, for imprisonment for a

term not exceeding 14 years of for fine (c) a sentence of

rigorus imprisonment for simple imprisonment or for fine and

(d) a sentence of simple imprisonment for fine. It is in

the context of the aforesaid provisions that we must read

section 433A which runs as under:

"433A. Restriction on powers of remission or

commutation in certain cases-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

commutted 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 section begins with a non-obstante clause

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notwithstanding anything contained in section 432 and

proceeds to say that where a person is convicted for an

offence for which death is one of the punishments and has

been visited with the lesser sentence of imprisonment for

life or where the punishment of an offender sentenced to

death has been commuted under section 433 into one of

imprisonment for life, such offender will not be released

unless he has served at least 14 years of imprisonment. The

reason which impelled the legislature to insert this

provision has been stated earlier. Therefore, one who could

have been

875

visited with the extreme punishment of death but on account

of the sentencing court's generosity was sentenced to the

lesser punishment of imprisonment for life and another who

actually was sentenced to death but on account of executive

generosity his sentence was commutted under section 433(a)

for imprisonment for life have been treated under section

433A as belonging to that class of prisoners who do not

deserve to be released unless they have completed 14 years

of actual incarceration. Thus the effect of section 433A is

to restrict the exercise of power under sections 432 and 433

by the stipulation that the power will not be so exercised

as would enable the two categories of convicts referred to

in section 433A to freedom before they have completed 14

years of actual imprisonment. This is the legislative

policy which is clearly discernible from the plain language

of section 433A of the Code. Such prisoners constitute a

single class and have, therefore, been subjected to the

uniform requirement of suffering atleast 14 years of

internment.

Counsel for the petitioner next submitted that after

this court's decision in Bhagirath's case permitting the

benefit of set off under section 428 in respect of the

detention period as an undertrial, the ratio of the decision

in Godse's case must be taken as impliedly disapproved. We

see no basis for this submission. In Godse's case the

convict who was sentenced to transportation for life had

earned remission for 2963 days during his internment. He

claimed that in view of section 57 read with section 53A,

IPC, the total period of his incarceration could not exceed

20 years which he had completed, inclusive of remission,

and, therefore, his continued detention was illegal.

Section 57, IPC reads as follows:

"57. Fractions of terms of punishment-In

calculating fractions of terms of punishment,

imprisonment for life shall be reckoned as

equivalent to imprisonment for twenty years."

The expression `imprisonment for life' must be read in the

context of section 45, IPC. Under that provision the word

`life' denotes the life of a human being unless the contrary

appears from the context. We have seen that the punishments

are set out in section 53, imprisonment for life being one

of them. Read in the light of section 45 it would

ordinarily mean imprisonment for the full or complete span

of life. Does section 57 convey to the contrary? Dealing

with this contention based on the language of section 57,

this Court observed in Godse's case at pages 444-45 as

under:

876

"Section 57 of the Indian Penal Code has no real

bearing on the question raised before us. For

calculating fractions of terms of punishment the

section provides that transportation for life shall

be regarded as equivalent to imprisonment for

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twenty years. It does not say that transportation

for life shall be deemed to be transportation for

twenty years for all purposes; nor does the amended

section which substitutes the words "imprisonment

for life" for "transportation for life" enable the

drawing of any such all embracing fiction. A

sentence of transportation for life or imprisonment

for life must prima facie be treated as

transportation or imprisonment for the whole of the

remaining period of the convicted person's natural

life."

This interpretation of section 57 gets strengthened if we

refer to sections 65, 116, 120 and 511, of the Indian Penal

Code which fix the term of imprisonment thereunder as a

fraction of the maximum fixed for the principal offence. It

is for the purpose of working out this fraction that it

became necessary to provide that imprisonment for life shall

be reckoned as equivalent to imprisonment for 20 years. If

such a provision had not been made it would have been

impossible to work out the fraction of an in-definite term.

In order to work out the fraction of terms of punishment

provided in sections such as those enumerated above, it was

imperative to lay down the equivalent term for life

imprisonment.

The second contention urged before the Court in Godse's

case was based on the Bombay Rules governing the remission

system framed in virtue of the provisions contained in the

Prisons Act, 1894. This Court pointed out that the Prisons

Act did not confer on any authority a power to commute or

remit sentences. The Remission Rules made thereunder had,

therefore, to be confined to the scope and ambit of that

statute and could not be extended to other statutes. Under

the Bombay Rules three types of remissions for good conduct

were allowed and for working them out transportation for

life was equated to 15 years of actual imprisonment.

Dealing with Godse's plea for premature release on the

strength of these rules this Court observed at page 447 as

under:

"The rules framed under the Prisons Act enable such

a person to remission ordinary, special and State-

and the said remissions will be given credit

towards his term of imprisonment. For the purpose

of working out the remis-

877

sions 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 an appropriate Government to

remit the sentence under section 401 (now section

432) 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 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."

On this line of reasoning the submission of counsel that if

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the Court were to take the view that transportation for life

or imprisonment for life enures till the last breath of the

convict passes out, the entire scheme of remissions framed

under the Prisons Act or any like statute and the whole

exercise of crediting remissions to the account of the

convict would collapse, was spurned. This Court came to the

conclusion that the Remission Rules have a limited scope and

in the case of a convict undergoing sentence of

transportation for life or imprisonment for life it acquires

significance only if the sentence is commuted or remitted,

subject to section 433A of the Code or in exercise of

constitutional power under Articles 72/161.

In Maru Ram's case the Constitution Bench reaffirmed

the ratio of Godse's case and held that the nature of a

life sentence is incarceration until death; judicial

sentence for imprisonment for life cannot be in jeopardy

merely because of long accumulation of remissions. Release

would follow only upon an order under section 401 of the

Criminal Procedure Code, 1898 by the appropriate Government

or on a clemency order in exercise of power under Articles

72/161 of the Constitution. At page 1220 the Constitution

Bench expressed itself thus:

"Ordinary where a sentence is for a definite term,

the calculus of remissions may benefit the prisoner

to instant release at that point where the

substraction result is zero.

878

Here, we are concerned with life imprisonment and

so we come upon another concept bearing on the

nature of sentence which has been highlighted in

Godse's case. Where the sentence is indeterminate

or of uncertain duration, the result of

substraction from an uncertain quantity is still an

uncertain quantity and release of the prisoner

cannot follow except on some fiction of

quantification of a sentence of uncertain

duration."

Referring to the facts of Godse's case and affirming the

view that the sentence of imprisonment for life enures upto

the last breath of the convict, this Court proceeded to

estate as under:

"Since death was uncertain, deduction by way of

remission did not yield any tangible date for

release and so the prayer of Godse was refused.

The nature of a life sentence is incarceration

until death, judicial sentence of imprisonment for

life cannot be in jeopardy merely because of the

long accumulation of remissions."

It is, therefore, clear from the aforesaid observations that

unless the sentence for life imprisonment is commuted or

remitted as stated earlier by the appropriate authority

under the provisions of the relevant law, a convict is bound

in law to serve the entire life term in prison; the rules

framed under the Prisons Act or like statute may enable such

a convict to earn remissions but such remissions will not

entitle him to release before he has completed 14 years of

incarceration in view of section 433A of the Code unless of

course power has been exercised under Article 7/161 of the

Constitution.

It will thus be seen from the ratio laid down in the

aforesaid two cases that where a person has been sentenced

to imprisonment for life the remissions earned by him during

his internment in prison under the relevant remission rules

have a limited scope and must be confined to the scope and

ambit of the said rules and do not acquire significance

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until the sentence is remitted under section 432, in which

case the remission would be subject to limitation of section

433A of the Code, or constitutional power has been exercised

under Article 72/161 of the Constitution. In Bhagirath's

case the question which the Constitution Bench was required

to consider was whether a person sentenced to imprisonment

for life can claim the benefit of section 428 of the Code

which, inter alia provides for setting off the period of

detention undergone by the accused as an undertrial against

the sentence of

879

imprisonment ultimately awarded to him. Referring to section

57, IPC, the Constitution Bench reiterated the legal

position as under:

"The provision contained in Section 57 that

imprisonment for life has to be reckoned as

equivalent to imprisonment for 20 years is for the

purpose of calculating fractions of terms in

punishment. We cannot press that provision into

service for a wider purpose."

These observations are consistent with the ratio laid down

in Godse and Maru Ram's cases. Coming next to the question

of set off under section 428 of the Code, this Court held:

"The question of setting off the period of

detention undergone by an accused as an undertrial

prisoner against the sentence of life imprisonment

can arise only if an order is passed by the

appropriate authority under section 432 of section

433 of the Code. In the absence or such order,

passed generally or specially, and apart from the

provisions, if any of the relevant Jail Manual,

imprisonment for life would mean, according to the

rule in Gopal Vinayak Godse, imprisonment for the

remainder of life."

We fail to see any departure from the ratio of Godse's case;

on the contrary the afore-quoted passage clearly shows

approval of that ratio and this becomes further clear from

the final order passed by the Court while allowing the

appeal/writ petition. The Court directed that the period of

detention undergone by the two accused as undertrial

prisoners would be set off against the sentence of life

imprisonment imposed upon them, subject to the provisions

contained in section 433A and, `provided that orders have

been passed by the appropriate authority under section 433

of the Code of Criminal Procedure'. These directions make

it clear beyond any manner of doubt that just as in the case

of remissions so also in the case of set off the period of

detention as undertrial would enure to the benefit of the

convict provided the appropriate Government has chosen to

pass an order under sections 432/433 of the Code. The ratio

of Bhagirath's case, therefore, does not run counter to the

ratio of this Court in the case of Godse or Maru Ram.

Under the Constitutional Scheme the President is the

Chief Executive of the Union of India in whom the executive

power of the Union vests. Similarly, the Governor is the

Chief Executive of the

880

concerned State and in him vests the executive power of that

State. Articles 72 and 161 confer the clemency power of

pardon, etc., on the President and the State Governors,

respectively. Needless to say that this constitutional

power would override the statutory power contained in

sections 432 and 433 and the limitation of section 433A of

the Code as well as the power conferred by sections 54 and

55, IPC. No doubt, this power has to be exercised by the

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President/Governor on the advice of his Council of

Ministers. How this power can be exercised consistently

with Article 14 of the Constitution was one of the Questions

which this Court was invited to decide in Maru Ram's case.

In order that there may not be allegations of arbitrary

exercise of this power this Court observed at pages 1243-44

as under:

"The proper thing to do, if Government is to keep

faith with the founding fathers, is to make rules

for its own guidance in the exercise of the pardon

power keeping, ofcourse, a large residuary power to

meet special situations or sudden developments.

This will exclude the vice of discrimination such

as may arise where two persons have been convicted

and sentenced in the same case for the same degree

of guilt but one is released and the other refused,

for such irrelevant reasons as religion, caste,

color or political loyalty."

Till such rules are framed this Court thought that extant

remission rules framed under the Prisons Act or under any

other similar legislation by the State Governments may

provide effective guidelines of a recommendatory nature

helpful to the Government to release the prisoner by

remitting the remaining term. It was, therefore, suggested

that the said rules and remission schemes be continued and

benefit thereof be extended to all those who come within

their purview. At the same time the Court was aware that

special cases may require different considerations and `the

wide power of executive clemency cannot be bound down even

by self-created rules'. Summing up its findings in

paragraph 10 at page 1249, this Court observed:

"We regard it as fair that until fresh rules are

made in keeping with the experience gathered,

current social conditions and accepted penological

thinking-a desirable step, in our view-the present

remissions and release schemes may usefully be

taken as guidelines under ARticles 72/161 and

orders for release passed. We cannot fault the

Government, if in some intractably savage

delinquents, section

881

433A is itself treated as a guideline for exercise

of Articles 72/161. These observations of ours are

recommendatory to avoid a hiatus, but it is for

Government, Central or State, to decide whether and

why the current Remission Rules should not survive

until replaced by a more wholesome scheme."

It will be obvious from the above that the observations were

purely recommendatory in nature.

In Kehar Singh's case on the question of laying down

guidelines for the exercise of power under Article 72 of the

Constitution this Court observed in paragraph 16 as under:

"It seems to us that there is sufficient indication

in the terms of Article 72 and in the history of

the power enshrined in that provision as well as

existing case-law, and specific guidelines need not

be spelled out. Indeed, it may not be possible to

lay down any precise, clearly defined and

sufficiently channelised guidelines, for we must

remember that the power under Article 72 is of the

widest amplitude, can contemplate a myriad kind of

and categories of cases with facts and situations

varying from case to case, in which the merits and

reasons of State may be profoundly assisted by

prevailing occasion and passing time. And it is of

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great significance that the function itself enjoys

high status in the constitutional scheme."

These observations do indicate that the Constitution Bench

which decided Kehar Singh's case was of the view that the

language of Article 72 itself provided sufficient

guidelines for the exercise of power and having regard to

its wide amplitude and the status of the function to be

discharged thereunder, it was perhaps unnecessary to spell

out specific guidelines since such guidelines may not be

able to conceive of all myraid kinds and categories of cases

which may come up for the exercise of such power. No doubt

in Maru Ram's case the Constitution Bench did recommend the

framing of guidelines for the exercise of power under

Articles 72/161 of the Constitution. But that was a mere

recommendation and not a ratio decidendi having a binding

effect on the Constitution Bench which decided Kehar Singh's

case. Therefore, the observation made by the Constitution

Bench in Kehar Singh's case does not upturn any ratio laid

down in Maru Ram's case. Nor has the Bench in Kehar Singh's

case said anything with regard to using the

882

provisions of extent Remission Rules as guidelines for the

exercise of the clemency powers.

It is true that Articles 72/161 make use of two

expressions `remissions' with regard to punishment and

`remit' in relation to sentence but we do not think it

proper to express any opinion as to the content and

amplitude of these two expressions in the abstract in the

absence of a fact-situation. We, therefore, express no

opinion on this question formulated by the learned counsel

for the petitioner.

Lastly the learned counsel for the petitioner raised a

hypothetical question whether it was permissible in law to

grant conditional premature release to a life convict even

before completion of 14 years of actual imprisonment, which

release would tantamount to the prisoner serving time for

the purpose of section 433A of the Code? It is difficult

and indeed not advisable to answer such a hypothetical

question without being fully aware of the nature of

conditions imposed for release. We can do no better than

quote the following observations made at page 1247 in Maru

Ram's case:

"........the expression `prison' and `imprisonment'

must receive a wider connotation and include any

place notified as such for detention purposes.

`Stone-walls and iron bars do not a prison-make':

nor are `stone walls and iron bars' a sine qua non

to make a jail. Open jails are capital instances.

any life under the control of the State whether

within high-walled or not may be a prison if the

law regards it as such. House detentions, for

example, Palaces, where Gandhiji was detained were

prisons. Restraint on freedom under the prison law

is the test. Licencsed where instant re-capture is

sanctioned by the law and likewise parole, where

the parole is not free agent, and other categories

under the invisible fetters of the prison law may

legitimately be regarded as imprisonment. This

point is necessary to be cleared even for

computation of 14 years under section 433A.

Therefore, in each case, the question whether the grant of

conditional premature release answers the test laid down by

this Court in the afore-quoted passage, would depend on the

nature of the conditions imposed and the circumstances in

which the order is passed and is to be executed. No general

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observation can be made and we make none.

883

In paragraph 10 of the memorandum of the Writ

petition., three reasons have been assigned for invoking

this Court's jurisdiction under Article 32 of the

Constitution, viz., (i) the questions involved in this

petition will affect the right of a large body of life

convicts seeking premature release; (ii) this Court's

judgment in Bhagirath's case deviated from the ratio laid

down in Godse's case and, therefore, the entire law of

remissions needed a review; and (iii) the High Court of

Rajasthan had refused to examine the merits of the various

important questions of law raised before it. It is on

account of the fact that this petition was in the nature of

a representative petition touching the rights of a large

number of convicts of the categories referred to in section

433A of the Code, that we have dealt with the various

questions of law in extenso. Otherwise the petition could

have been disposed of on the narrow ground that even though

in view of sections 433A of the Code, premature release

could not be ordered under sections 432/433 of the Code read

with the 1958 Rules until the petitioner had completed 14

years of actual imprisonment, his release could be

considered in exercise of powers under Articles 72/161 of

the Constitution treating the 1958 Rules guidelines, if

necessary.

The relief claimed in the petition is two-fold, namely,

(a) to grant a mandamus to the appropriate Government for

the premature release of the petitioner by exercising

constitutional power with the aid of 1958 Rules and (b) to

declare the petitioner's continued detention as illegal and

void. The petitioner has not completed 14 years of actual

incarceration and as such he cannot invoke sections 432 and

433 of the Code. His continued detention is consistent with

section 433A of the Code and there is nothing on record to

show that it is otherwise illegal and void. The outcome of

his clemency application under the constitution is not put

in issue in the present proceedings if it has been rejected

and if the same is pending despite the directive of the High

Court it would be open to the petitioner to approach the

High Court for the compliance of its order. Under the

circumstance no mandamus can issue. The writ petition must,

therefore, fail. It is hereby dismissed. Rule discharged.

G.N. Petition dismissed.

884