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1944 Supreme(SC) 41
Privy Council At Lahore
Sir Madhavan Nair, Goddard, Lord Russell of Killowen Porter, Justice Lord Chancellor, JJ.
Kishori Lal -Appellant
Versus
Emperor -Resopndent
Privy Council Appeal No.15 of 1944
Decided On : 06-12-1944
India Office, Dold , Douglas Grant , Crown, J.M. Pringle, Q.D. Roberts , R.K. Handoo , D.N. Pritt
A sentence of transportation for life does not necessarily require overseas removal and is not converted into a term of rigorous imprisonment (capped at 14 years) simply because the prisoner is detained in a local jail and treated as undergoing rigorous imprisonment.
Headnote:(A) Penal Code - Sections 53, 55, 58 - Criminal Procedure Code - Sections 35(2), 57, 368(2), 491 - Prisoners Act, 1900 - Sections 29, 31, 32 - Sentence of transportation for life - Treatment of prisoner - Whether confinement in a local prison and treatment as rigorous imprisonment amounts to commutation of sentence to rigorous imprisonment - A sentence of transportation no longer necessarily involves being sent overseas - Under the Prisoners Act, the government may appoint places within the province for the detention of transportation prisoners - Treatment of such prisoners as if sentenced to rigorous imprisonment is mandated by law and does not change the nature or length of the sentence unless formally commuted - The maximum term of 14 years applicable to rigorous imprisonment does not apply to a sentence of transportation for life merely because the prisoner is detained in a local jail.
(B) Life Sentence - Calculation for remission - For the purpose of calculating fractional parts of a life sentence, it is treated as 20 years.
Facts of the case:
An appellant was convicted of waging war against the state and murder and sentenced to transportation for life. The government decided the appellant was unsuitable for overseas transportation and kept him in a local jail, where he was treated as if undergoing rigorous imprisonment. The appellant contended that since he was subjected to rigorous imprisonment, his sentence should be limited to the maximum term of 14 years permitted for such punishment, and that the government's actions amounted to a commutation of his sentence.
Findings of Court:
The court found that while transportation historically meant being sent overseas, subsequent legislation, specifically the Criminal Procedure Code and the Prisoners Act, allows for transportation prisoners to be detained in prisons within the province. Treatment as rigorous imprisonment is the statutory requirement for those awaiting or undergoing transportation and does not constitute a commutation of the sentence.
Issues: Whether a prisoner sentenced to transportation for life, who is detained in a local prison and treated as if undergoing rigorous imprisonment, can claim that their sentence is capped at 14 years or has been deemed commuted to rigorous imprisonment.
Ratio Decidendi: A sentence of transportation is now effectively a life sentence and does not mandate overseas removal. Statutory provisions allow the government to appoint local prisons for transportation prisoners. Under the law, such prisoners are to be dealt with as if sentenced to rigorous imprisonment; this treatment is a feature of the sentence of transportation and not a commutation to a separate punishment of rigorous imprisonment. Therefore, the 14-year limit on rigorous imprisonment does not apply.
Result: Appeal dismissed.
Legal Category Hierarchy
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crime and sentencing
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offences against the state
- waging war
-
offences against the person
- murder
-
sentencing
- transportation for life
- rigorous imprisonment
- commutation of sentence
- remission
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offences against the state
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practice and procedure
- habeas corpus
Lord Goddard:-
On 7th October 1980, the appellant was convicted before the Special Tribunal set up under Ordinance 8 of 1930 of certain offences, including those of waging war against the King, contrary to S.121, Penal Code, and of murder, contrary to S. 302. For these offences he was sentenced to transportation for life which is the only sentence, other than death, which can be awarded for these two crimes. After conviction he was imprisoned in the Central Jail at Multan and in January 1936, was transferred to the Central Jail at Lahore. On 29th August 1982, the Home Secretary to the Government of the Punjab wrote to the Inspector-General of Prisons saying that the Governor in Council agreed that the appellant, on the score of his crime, was unsuitable for transportation to the Andamans adding that "he cannot be deported as a terrorist as the Government of India has not so far addressed any communication authorising the Punjab Government to deport terrorists there." The Andamans is the only place outside the mainland of India to which convicts sentenced to transportation are sent and it is not in dispute that this letter signified the intention of the Government not to transport; the appellant overseas but to keep him imprisoned in India. In fact, he has ever since been kept in the Central Jail at Lahore, and has there been dealt with in the same manner as if sentenced to rigorous imprisonment. His sentence has never been commuted under S.55, Penal Code, or S.402 (1), Criminal PC, to one of rigorous imprisonment. While there is no section either in the Penal Code, or in the Code of Criminal Procedure, which says in terms that no sentence of rigorous imprisonment is to exceed 14 years, it is the fact that in no case where rigorous imprisonment is prescribed as the punishment is the maximum term longer than 14 years and, by a proviso to S. 35 (2) of the latter Act, consecutive sentences of imprisonment cannot amount in the aggregate to more than 14 years. So it can be said with truth that when the Code enacts that an offence shall be punishable by rigorous imprisonment as the sentence it cannot exceed that period, The only sentence known to the law which can exceed 14 years is one of transportation for life and, with two exceptions where transportation is a part of the sentence, the term is always for life. Convicts serving this sentence may be granted remission for good conduct, and for the purpose of calculating remission in the case of life sentences, it appears that in India they are treated as sentences of 20 years. This is no doubt the reason why S. 57 of the Code provides that for calculating a fractional part of a life sentence it should be treated as one of 20 years.
On 1st July 1943, the position was that the appellant had earned remission and, if the amount thus earned were added to the term he had actually served, the aggregate would have exceeded 14 years but would not have exceeded 20 years. On that date be applied to the High Court at Lahore for an order in the nature of a habeas corpus under S. 491, Criminal PC, claiming that he had justly served his sentence and should therefore be released. His application was refused by Monroe J. on 13th July. On appeal the High Court held that they had no jurisdiction to entertain it as being one in relation to a criminal matter, and it is conceded that this view was correct. Subsequently, special leave to appeal to His Majesty in Council from the order of Monroe J. was granted as it was clear that a question of importance and some difficulty was involved.
The appellant's main contention was, and is, that as he has all along been subjected to rigorous imprisonment he cannot be made to serve longer than a term, which, aggregated with the period of remission earned, amounts to 14 years, that being the maximum term of rigorous imprisonment permitted by law. He also contends that the Government by causing him to be dealt with in the same manner as if sentenced to rigorous imprisonm
