Judgment

V. D. TULZAPURKAR, J. :- By this writ petition under Art. 32 of the Constitution the petitioner Naib Singh is challenging his continued detention in jail and is seeking an order in the nature of habeas corpus claiming that he has justly served more than the maximum sentence of imprisonment prescribed under law and should, therefore, be released.

2. The petitioner was originally sentenced to death on 18-1-1969 by the learned Sessions Judge, Ferozepore, for committing an offence of murder under S. 302, Penal Code. Later, on a mercy petition preferred by him, his death sentence was commuted by the Governor of Punjab to imprisonment for life, which he has been undergoing in the Central Jail at Bhatinda. Excluding the period spent by him as an under-trial prisoner (in respect whereof no life-convict is entitled to the benefit of a set-off) under S. 428, Cr. P. C. 1973 as interpreted by this Court in Kartar Singhs case, (1932) 3 SCC 1 the petitioner appears to have undergone a total imprisonment of 22 years 2 months and 17 days inclusive. of remissions as under:

Yrs. months days

(a) actual rigorous imprisonment after conviction. 11 5 10

(b) Jail remissions. 2 3 6

(c) Govt. remissions. 8 6 1

Total : 22 2 17

Admittedly, neither his sentence has been remitted fully nor commuted for imprisonment for a term not. exceeding 14 years either under S. 55. I.P.C. or S. 433 (b), Cr. P. C. 1973 by the appropriate Government, with the result that he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godses case, (1961) 3 SCR 440. However, on the basis of the aforesaid particulars. which are not disputed, the petitioners case is that he has positively undergone more than 14 years of sentence including remissions and since through the officer-in-charge of Jail the Government got executed his sentence in jail custody in the form of rigorous imprisonment, that is by subjecting him to hard labour and also by awarding him remissions the Government must be deemed to have commuted his sentence to 14 years either under S. 55 I.P.C. or S., 433 (b), Cr, P. C. 1973, notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith.

3. Counsel for the petitioner elaborated the petitioners case thus : S. 53. I.P.C. prescribes five or six distinct categories of punishment to which offenders are liable under the penal Code. Prior to its amendment by S. 117 of the Code of Criminal Procedure (Amendment) Act (26 of .1955) that section prescribed the punishment of Transportation, at item Secondly but that was substituted by imprisonment for life by the said Amending Act (26 of 1955) with effect from Jan. 1, 1956. According to counsel though persons who commit the offence of murder have been made liable to the newly substituted punishment of Imprisonment for life instead of the earlier sentence of transportation for life under S. 302. I.P.C. read with Secondly of S. 53, I.P.C., this new sentence of Imprisonment for life (either awarded originally by the Sessions Court or by way of commutation of death sentence by the appellate Court or the appropriate Government or authority) has not been made legally executable in jail under either the Criminal P. C. 1898 or 1973 or any other law or. under any writ, order or warrant of the Court, by the Officer-in-Charge of jail and like sentence of. transportation for life, imprisonment for life remains executable by way of banishment or exile to the places envisaged under S. 32 of the prisoners Act (3 of 1900) and the Officer-in-Charge of the jail is merely mandated to keep the convict person in intermediate custody only and is required to deliver him over to appropriate authority and custody for the purpose. of removal to the places aforesaid, for executing or carrying out the sentence and in this behalf reliance was placed on the prescribed Forms