The main legal point established in the judgment is the disjunctive interpretation of the phrase 'punishable with death or transportation for life' in S. 562 and S. 497, Criminal P.C., making women convicted of an offence for which transportation for life is one of the punishments provided ineligible for release on probation under S. 562, Criminal P.C.

Grille, A J C—This is a reference by the Sessions Judge, Raipur, under S. 438, Criminal P.C., reporting Criminal Case No. 317 of 1931, decided by Mr. S.V. Nayadu, Magistrate, First Class, Bilaspur, and recommending that the order releasing the accused on probation of good conduct under S. 562 (1), Criminal P.C., be set aside as it is illegal and that the case be remanded for passing a legal sentence. The two accused are women and they have been convicted of the offence of voluntarily causing hurt in the commission of a robbery, which is punishable with transportation for life or with rigorous imprisonment for a term which may expend to ten years. In answer to a rule issued to show cause why the order of release should not be set aside and sentence passed the Government Advocate appeared for the Crown and the accused appeared in person.

2. The question whether the order is illegal depends on the interpretation of the words ''punishable with death or transportation for life.'' The provision to release first offenders on probation is applicable to persons not under 21 years of age who are convicted of offences punishable with imprisonment for not more than seven years, but in the case of persons under 21 years of age, and women, if the offence of which they are convicted is not punishable with death or transportation for life ; the question is whether the phrase ''punishable with death or transportation for life'' is to be interpreted conjunctively or disjunctively, that is to say, whether it refers to an offence for which the punishment is alternatively death or transportation for life, or whether it refers to offences for which death or transportation for life is one of the punishments provided. The question, so far I have been able to ascertain, has arisen only in cases under S. 497, Criminal P.C., where the question of the eligibility of an accused person to be released on bail was under consideration. In that section the phrase occurs in identical form :

When any person accused of any nonballable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life.

3. In both Ss. 497 and 562 this provision is inserted by virtue of the Amending Act 18 of 1923. On consideration of the language used in other parts of the Code of Criminal Procedure and also on consideration of the offences in the Indian Penal Code which are punishable with transportation for life, I am of opinion that the phrase must be interpreted disjunctively and that women convicted of an offence for which transportation for life is one of the punishments provided are ineligible for release on probation under S. 562, Criminal P.C. In a case of this Court, Tularam v. Emperor, 1927 AIR(Nag) 53, Kinkhede, A.J.C., held that the phrase ''death or transportation for life'' in S. 497 did not extend to offences punishable with transportation for life only and was limited to those offences for which death and transportation for life were alternative sentences. In that judgment the interpretation of the phrase ''death or transportation for life'' propounded by Doyle, J., in Muhammad Eusoof v. Emperor,1926 AIR(Rang) 51 was accepted. The judgment however gives no independent reasons for the acceptance of this interpretation. The relevant part runs :

I am also of opinion that the interpretation put by Doyle, J., in Muhammed Eusoof v. Emperor,1926 AIR(Rang) 51 on the phrase 'death or transportation for life' in S. 497, Criminal P.C., is consistent with the widening of this discretion (the reference is to the widening of the discretion of the powers of the Courts to grant bail) and is amply supported by the reasons given by that learned Judge.

4. Now in Emperor v. Nga San Htwa, 1927 AIR(Rang) 205 a Full Bench of t