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Friday, July 25, 2014

Habeas corpus type writ -as her husband in imprisonment more than 20 years as her mercy petitions were rejected twice made - meaning of life imprisonment reiterated that unless properly remitted by competent authority, life imprisonment means imprisonment for entire lifetime of convict - No court set him free beyond the law with out remission by appropriate authority= ARJUN JADAV … PETITIONER VERSUS STATE OF WEST BENGAL & ORS. … RESPONDENTS = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41723

 Habeas corpus type writ -as her husband - in imprisonment - more than 20 years as her mercy petitions were rejected twice made  - meaning  of  life  imprisonment  reiterated  that unless properly remitted by competent  authority,  life  imprisonment  means imprisonment for entire lifetime of convict - No court set him free beyond the law with out remission by appropriate authority  =

In the meantime, the petitioner has undergone custody  for  more  than
20 years including the period of remission and  about  17  years  of  actual
custody and,  therefore,  it  is  alleged  that  his  detention  has  become
unlawful and illegal.
 in  Life  Convict  Bangal  alias
Khoka alias Prasanta Sen v. B.K. Srivastava and others, (2013)  3  SCC  425,
This Court while  defined  meaning  of  life  imprisonment  reiterated  that
unless properly remitted by competent  authority,  life  imprisonment  means
imprisonment for entire lifetime of convict =
In the present case, the mercy petitions  filed  by  the  petitioner’s
wife were rejected twice. 
The case of the petitioner was considered  by  the
Review Board constituted by the State of West  Bengal,  which  rejected  the
prayer. 
Therefore, no relief can be granted by this Court under  Article  32
of the Constitution of  India.  
However,  in  view  of  the  fact  that  the
petitioner has actually undergone more than 18 years  of  imprisonment;  the
Superintendant. Alipore Central  Jail  of  his  own  wrote  a  letter  dated
18.09.2003 requested for reconsideration of the case of the  petitioner  and
recommended release of the petitioner. 
We  are  of  the  view  that  if  any
application for remission is filed by the petitioner or  on  behalf  of  the
petitioner, the Competent Authority place the same before the  Review  Board
and which will reconsider the case of the petitioner for  premature  release
in accordance with law and guidelines issued by the State.  
The  appropriate
Government would be at liberty to pass appropriate order in accordance  with
law.
15.   The petitioner was released on bail by an order passed by  this  Court
on 7.01.2005. We vacate that order. The respondents would be at  liberty  to
take the  petitioner  into  custody  and  as  regards  remission  the  State
Government may pass any appropriate order in accordance with law.
16.   The Writ Petition is dismissed with aforesaid observations.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41723


                                                                 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                     WRIT PETITION (CRL.) NO.229 OF 2004


ARJUN JADAV                                  … PETITIONER

                                   VERSUS


STATE OF WEST BENGAL & ORS.                  … RESPONDENTS

                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J


The petitioner, who was convicted  for  the  offence  u/s  302/34  IPC,  has
preferred this writ petition under Article 32 of the Constitution  of  India
in the nature of habeas corpus for setting the petitioner  at  liberty  from
the illegal custody in the prison/correctional Home.
2.    The petitioner who was made an accused in a murder  case  no.S.T  3(9)
for offence u/s 302/34 IPC, was arrested  on  5.03.1985.  According  to  the
petitioner, he has undergone conviction in custody of the respondent,  which
should be counted towards sentence are as follows:






3.    After  trial,  the  petitioner  was  convicted  u/s  302/34  IPC  vide
judgment dated 15.01.1991 along with  another  co-accused  Partap  Praharaj,
who according to the petitioner, fired one gun shot on the  abdomen  of  the
deceased and was sentenced  to  “imprisonment  for  life  simplicitor”  (not
rigorous imprisonment for life) by the  Court  of  IXth  Additional  Session
Judge, Alipore, Calcutta.
4.    Against the conviction, the petitioner and co-accused  filed  Criminal
Appeal No.56 of 1991 before Calcutta  High  Court  which  was  dismissed  on
9.04.1992. Thereafter, special leave petition against their  conviction  was
also not entertained by this Court.
5.    Further case of the petitioner is that he became eligible  under  Rule
591 (1-4) of the  West  Bengal  Jail  Code  for  considering  his  case  for
premature release under 14 years Rule, including remission, which  according
to the petitioner should be 10 years of actual  imprisonment  plus  4  years
remission. Notwithstanding the law laid down in the West  Bengal  Jail  Code
and law laid down by  this  Court,  the  case  of  the  petitioner  was  not
considered and thereby respondents are violating his  statutory  rights  and
provisions.
6.    In the year 2001, the wife of the petitioner made a mercy petition  to
the  Competent  Authority  of  the  State  for  premature  release  of   the
petitioner but the same was rejected by the State  Government  on  12.4.2002
although the petitioner had a consistent good  record  in  Jail/Correctional
Home and his case was recommended by the Prison Authority for  his  release.
Another mercy petition preferred by petitioner’s wife was also  rejected  by
the State Government. The Superintendent, Alipore Central Jail  of  his  own
wrote a letter dated 18.9.2003 to the State Government  for  reconsideration
of the case of petitioner and strongly recommended his  release.  Thereafter
nothing was heard from the State Government.
7.    In the meantime, the petitioner has undergone custody  for  more  than
20 years including the period of remission and  about  17  years  of  actual
custody and,  therefore,  it  is  alleged  that  his  detention  has  become
unlawful and illegal.
8.    Learned counsel for  the  petitioner  contended  that  the  length  of
duration of  the  imprisonment  for  life  is  equivalent  to  20  years  of
imprisonment and that too subject to further remission admissible under  the
law.  The petitioner is liable to be released under  Rule  751  (C)  of  the
West Bengal Jail Code.  Reliance was  also  placed  on  the  explanation  to
Section 61 of the West Bengal Correctional Services Act, 1992  (West  Bengal
Act XXXII of 1992) whereunder the imprisonment for  life  is  equated  to  a
term of 20 years of imprisonment.
9.    On 7.1.2005, this Court directed to list the matter after decision  in
W.P (Crl.) No.45 of 1998 titled Md. Munna v. Union of  India  &  Ors.  since
learned counsel for the petitioner informed that the arguments in  the  said
case have already been concluded and judgment  was  awaited.   By  the  said
order, this Court further directed to release the petitioner  on  parole  on
his furnishing a personal bond in a sum of Rs.5,000/-  to  the  satisfaction
of Chief Judicial Magistrate, Alipore  (24  Parganas,  District  Kolkata-27)
pending decision of this case.
10.   The aforesaid Writ Petition  (Crl.)  No.45  of  1998  was  heard  with
another Writ Petition (Crl.) No.50  of  2003.   In  the  said  case  similar
argument was made that the length of the duration  of  the  imprisonment  of
life is equivalent to 20 years of  imprisonment  and  that  too  subject  to
further remission admissible under the law. In the said  case  reliance  was
also placed on Rule 751(c) of the West Bengal Jail Code and  explanation  to
Section 61 of the West Bengal Correctional Services Act,  1992  where  under
the imprisonment for life is equated to a term of 20 years imprisonment.
The aforesaid writ petitions were dismissed by  this  Court  on  16.09.2005,
reported in (2005) 7 SCC 417, Mohd. Munna v. Union of India & Ors.
11.   Similar issue was considered by Constitutional Bench of this Court  in
Gopal Vinayak Godse v. State of Maharashtra, (AIR) 1961 SC 600. In the  said
case this Court held that the sentence of imprisonment for life is  not  for
any definite period and the imprisonment for  life  must,  prima  facie,  be
treated as imprisonment for  the  whole  of  the  remaining  period  of  the
convicted person’s natural life. In paragraph 5, the Court observed:

“5. … 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.”

            In paragraph 8, this Court held:
 “8. Briefly stated the legal position is this: Before  Act  26  of  1955  a
sentence of transportation for life could be undergone by a prisoner by  way
of rigorous imprisonment for life in a designated  prison  in  India.  After
the said Act, such a convict shall be dealt with in the same manner  as  one
sentenced to rigorous imprisonment  for  the  same  term.  Unless  the  said
sentence  is  commuted  or  remitted  by  appropriate  authority  under  the
relevant provisions of the Penal Code or the Code of Criminal  Procedure,  a
prisoner sentenced to life imprisonment is bound in law to  serve  the  life
term in prison. The Rules  framed  under  the  Prisons  Act  enable  such  a
prisoner  to  earn  remissions—ordinary,  special  and  State—and  the  said
remissions will be given credit towards his term of  imprisonment.  For  the
purpose of working out the remissions 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  (sic  predict)  the
time of his death. That is why the Rules provide for a procedure  to  enable
the appropriate Government to remit the sentence under Section  401  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 the 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. We, therefore, hold that the petitioner  has  not
yet acquired any right to release.”

12.   In Mohd. Munna v. Union of  India  and  others  (supra)  referring  to
decisions of this Court in Naib Singh v. State of Punjab  &  Ors.  (1983)  2
SCC 454, Privy Council decision in Kishori Lal v. Emperor (AIR) 32  1945  PC
64 and Constitutional Bench decision in Gopal  Vinayak  Godse  v.  State  of
Maharashtra, (AIR) 1961 SC 600 this Court held:

“8. The  above  contention  of  the  petitioner’s  counsel  is  only  to  be
rejected. The imprisonment of the life convicts are  being  carried  out  on
the strength of the order passed by the court. The provisions  contained  in
the Prisoners Act are only procedural in nature. The  preamble  to  the  Act
itself states that the Act is meant  to  consolidate  the  law  relating  to
prisoners confined by order of a court and Section 32 of the Prisoners  Act,
1900 specifically says about the persons under  sentence  of  transportation
and  when  the  punishment  of  transportation  itself  was   deleted,   the
provisions of Section 32 regarding the temporary custody of  the  prisoners,
there is no relevance for the appointed places within the State  or  outside
the State  for  a  person  under  sentence  of  transportation.  The  prison
authorities are bound to keep the persons who are sentenced to  imprisonment
for life in jails. Of course, some of the provisions in the  Prisoners  Act,
1900 were not suitably amended so as to be in conformity with  the  sentence
of life imprisonment introduced by Act 26 of 1955. That does  not  make  the
detention illegal.”

9………………Therefore,  it  is  clear  that  if  a   person   is   sentenced   to
transportation for a term, the same is converted  to  rigorous  imprisonment
for the same duration. Naturally, the transportation for life will  only  be
treated as rigorous imprisonment for life.

10. If a portion of the period of transportation for life is to  be  treated
as sentence of rigorous imprisonment  for  the  same  term,  naturally,  the
entire transportation period is to be treated as “rigorous imprisonment  for
life”. Imprisonment for  life  is  a  class  of  punishment  different  from
ordinary  imprisonment  which  could  be  of   two   descriptions,   namely,
“rigorous”  or  “simple”.  It  was  unnecessary  for  the   legislature   to
specifically mention that  the  imprisonment  for  life  would  be  rigorous
imprisonment for life as it is imposed as punishment for grave offences.”

“16………….We are bound by the above dicta laid down by the Constitution  Bench
and we hold that life imprisonment is not  equivalent  to  imprisonment  for
fourteen years or for twenty years as contended by the petitioner.

17. Thus, all  the  contentions  raised  by  the  petitioner  fail  and  the
petitioner is not entitled to be released on any of  the  grounds  urged  in
the writ petition so long as there is no order of remission  passed  by  the
appropriate Government in his favour. We make it  clear  that  our  decision
need not be taken as expression of our  view  that  the  petitioner  is  not
entitled to any remission at all. The appropriate  Government  would  be  at
liberty to pass any appropriate order of remission in accordance with law.”

13.   Similar view was taken by this Court  in  Life  Convict  Bangal  alias
Khoka alias Prasanta Sen v. B.K. Srivastava and others, (2013)  3  SCC  425,
This Court while  defined  meaning  of  life  imprisonment  reiterated  that
unless properly remitted by competent  authority,  life  imprisonment  means
imprisonment for entire lifetime of convict, this Court held:
“18. It is clear that neither Section 57 IPC nor the Explanation to  Section
61 of the W.B. Act lay  down  that  a  life  imprisonment  prisoner  has  to
[pic]be released after completion of 20 years. 20  years  mentioned  in  the
Explanation to Section 61 of the  W.B.  Act  is  only  for  the  purpose  of
ordering remission. If  the  State  Government  taking into

consideration various aspects  refused  to  grant  remission  of  the  whole
period then the petitioner cannot take advantage of  the  above  Explanation
and
even Section 57 IPC and seek for premature release.  Further,  the  question
of remission of the entire  sentence  or  a  part  of  it  lies  within  the
exclusive domain of the appropriate Government  under  Section  432  of  the
Code of Criminal Procedure, 1973 and neither Section 57 IPC  nor  any  rules
or local Acts (in the case on hand, the W.B. Act) can  stultify  the  effect
of the sentence of life imprisonment given by the Court under  IPC.  To  put
it clear, once a person is sentenced to  undergo  life  imprisonment  unless
imprisonment for life is commuted by the  competent  authority,  he  has  to
undergo imprisonment for the whole of his life. It is equally  well  settled
that Section  57  IPC  does  not,  in  any  way,  limit  the  punishment  of
imprisonment for life to a term of 20 years.”

14.   In the present case, the mercy petitions  filed  by  the  petitioner’s
wife were rejected twice. The case of the petitioner was considered  by  the
Review Board constituted by the State of West  Bengal,  which  rejected  the
prayer. Therefore, no relief can be granted by this Court under  Article  32
of the Constitution of  India.  However,  in  view  of  the  fact  that  the
petitioner has actually undergone more than 18 years  of  imprisonment;  the
Superintendant. Alipore Central  Jail  of  his  own  wrote  a  letter  dated
18.09.2003 requested for reconsideration of the case of the  petitioner  and
recommended release of the petitioner. We  are  of  the  view  that  if  any
application for remission is filed by the petitioner or  on  behalf  of  the
petitioner, the Competent Authority place the same before the  Review  Board
and which will reconsider the case of the petitioner for  premature  release
in accordance with law and guidelines issued by the State.  The  appropriate
Government would be at liberty to pass appropriate order in accordance  with
law.
15.   The petitioner was released on bail by an order passed by  this  Court
on 7.01.2005. We vacate that order. The respondents would be at  liberty  to
take the  petitioner  into  custody  and  as  regards  remission  the  State
Government may pass any appropriate order in accordance with law.
16.   The Writ Petition is dismissed with aforesaid observations.

                                                          …………………………………………J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)


                                                          …………………………………………J.
                              (RANJANA PRAKASH DESAI)

NEW DELHI,
JULY 2, 2014.
-----------------------
|Period                 |Year  |Month  |Days |
|5.3.1985-20.6.1986     |1     |3      |15   |
|15.1.1987-22.9.1988    |1     |8      |7    |
|26.4.1990-22.9.1990    |      |4      |26   |
|Total                  |3     |6      |18   |





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