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SUPREME COURT OF INDIA
A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.
Ashok Kumar alias Golu, Petitioner
Versus
Union of India and others, Respondents.
Criminal Writ Petn. No. 96 of 1989
Decided on 10-7-1991.
Held: 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 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 offenders 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 or for fine ( c) a sentence of rigorous imprisonment for simple imprisonment or for fine and (d) a sentence of simple imprisonment for fine. It is in the context of aforesaid provisions that we must read section 433A.
The section begins with a non-obstante clause - 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 visited with the extreme punishment of death but on account of the sentencing courts 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 requiremect of suffering atleast 14 years of internment (para 10)
Further held - 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 72/161 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 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. (Paras 13 & 14)
(ii) Constitution of India - Art. 32 - Criminal Procedure Code, 1973 - Sections 432, 433 & 433A - Law governing suspension, remission and commutation of sentence - There is no question of legislative fraud or colourable legislation involved in the backdrop of the legislative History of Sec. 433A of the Code The effect of section 433A is to restrict the exercise of power u/ss 432 & 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in Sec. 433A to freedom before they have completed 14 years of actual imprisonment. (Paras 8 & 10)
JUDGMENT
AHMADI, J.:—Liberty is the life line of every human being. Life without liberty is liastingbut 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 by this Court in Maru Ram v. Union of India, (1981) 1 SCR 1196.
2. The questions of law which are raised in this petition brought under Art. 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 charge-sheeted for the murder of one Prem Nagpal. The petitioner. was tried and convicted for murder on Decenibei 20, 1978 in Sessions Case No. 32 of 1978 by the learned Sessions Judge, Ganganagar, and was ordered to suffer imprisonmerit 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 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 at least 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 petitioners 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.
3. The petitioners 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 S. 433A of the Code on the interpretation that by virtue of the said provision the case of a lifer cannot be consi dered for early release unless he has completed 14 years
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