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“transportation for life” 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. The petitioner – a life convict has filed this contempt petition against the respondents – the State of West Bengal and its officers for disobeying the order dated 24.11.2010 passed by this Court by not complying with the same within the prescribed period of eight weeks and failure to release him in accordance with the statute. – “The life convict was convicted on 18.01.1990 under Section 302/34 IPC and detained in connection with S.T. No. 01 of June 1989. He was released on parole from Presidency Correctional Home on 29.04.2005 in compliance with Hon’ble Supreme Court’s order in Writ Petition (Criminal) No. 279 of 2004. The police authority vehemently opposed the premature release of the life convict on the following grounds: (a) He was a notorious fellow in the area before his conviction. (b) He still maintains relationship with his old associates. 20Page 21 (c) He is within the age of 52 years with sound health. (d) His socio economic condition is not sound. (e) In case of his premature release there is every possibility of his reverting to criminality. (f) During his parole he has been technically serving life imprisonment binding him to refrain from criminal activities for the time being. There is every possibility of his committing further crimes. Considering the above fact, the Review Board did not find any reason to recommend premature release of the life convict now on parole.” It is seen that after careful consideration of all the aspects, the Review Board in its meeting held on 27.01.2011 did not recommend the petitioner for his premature release. The recommendation of the Review Board was placed before the State Government and the State Government accepted the recommendation of the State Sentence Review Board. The decision of the State Government was communicated to the petitioner vide letter No. 790-J dated 09.02.2012. In view of the decision of the State Sentence Review Board, approval by the State Government and the principles enunciated in various decisions of this Court including the decision of the Constitution Bench in Gopal Vinayak Godse’s case (supra), we find no merit in the contempt petition, consequently, the same is dismissed.

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Habeas Corpus (1928 film)

Habeas Corpus (1928 film) (Photo credit: Wikipedia)

REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
CONTEMPT PETITION (C) No. 363 OF 2011
IN
WRIT PETITION (CRL.) No. 279 OF 2004
Life Convict Bengal @ Khoka
@ Prasanta Sen …. Petitioner (s)
Versus
B.K. Srivastava & Ors. …. Alleged Contemnors/
Respondent(s)

J U D G M E N T
P.Sathasivam,J.
1) The petitioner – a life convict has filed this contempt
petition against the respondents – the State of West Bengal
and its officers for disobeying the order dated 24.11.2010
passed by this Court by not complying with the same within
the prescribed period of eight weeks and failure to release
him in accordance with the statute.
1Page 2
2) Brief facts:
(a) Prior to the above contempt petition, the petitioner filed
a writ of Habeas Corpus being W.P. (Crl.) No. 279 of 2004 –
for his immediate release in which it was stated that as per
his calculation, he has undergone total sentence of
imprisonment for a period of 22 years 2 months and 16 days
including earned remission. According to him, even as per
the stand taken by the respondents in their counter
affidavits, he had undergone sentence for a period of 20
years 1 month and 17 days including remission and set off
as on 31.12.2004. In other words, according to the
petitioner, he has already undergone full sentence of 20
years with remission.
(b) By order dated 24.11.2010, this Court disposed of W.P.
(Crl.) Nos. 20 and 279 of 2004 with the following directions:
“In the light of the decision of this Court in State of
Haryana & Ors. vs. Jagdish, 2010 (4) SCC 216 and
considering the relief prayed in both the writ petitions, we
dispose of the writ petitions by the following directions:
The State of West Bengal is directed to consider the
claim of both the writ petitioners, life convicts and proceed
to conclude the sentence for the purpose of consideration
of remission as per the Statute/Policy applicable on the
date of conviction and pass appropriate orders in terms of
2Page 3
the above decision within a period of eight weeks from the
date of the receipt of the copy of this order.
The Writ Petitions are disposed of.
Sd/-
(P.Sathasivam,J.)
Sd/-
(Dr. B.S.ChauhanJ.)”
3) It is the claim of the petitioner that in spite of the said
order of this Court dated 24.11.2010 and in view of the West
Bengal Correctional Services Act, 1992 (West Bengal Act 32
of 1992) (hereinafter referred to as “the W.B.Act”), the
respondents have not released him which necessitated him
to file the above contempt petition.
4) Pursuant to the notice issued by this Court, Mr. B.K.
Srivastava, respondent No.1, Secretary to the Government of
West Bengal, Judicial Department has filed the counter
affidavit highlighting their stand. In addition to the same,
Dr. G.D. Gautama, respondent No.2, Additional Chief
Secretary to the Government of West Bengal, Home
Department and Mr. Biplab Das – respondent No.3,
Superintendent of the Presidency Correctional Home have
filed counter affidavits reiterating their stand. In these
counter affidavits, the State Government has highlighted
3Page 4
that on going into the period of custody, other particulars
and the provisions of the West Bengal Act, it rejected the
prayer of the petitioner for his premature release, hence,
according to them, there is no violation of order dated
24.11.2010 passed by this Court and prayed for dismissal of
the present contempt petition.
5) We heard Mr. B.S. Malik, learned senior counsel for the
petitioner and Mr. Avijit Bhattacharjee, learned counsel for
the respondents.
Discussion:
6) In order to appreciate the claim of both the parties, it is
useful to refer relevant provisions relating to release of
prisoners under the W.B. Act. Section 2(c) of the W.B. Act
defines “correctional home” which reads as under:
“2(c) “correctional home” means any place used
permanently or temporarily under the orders of the State
Government for detention of persons, whether under-trial
or convicted, in accordance with any order for confinement
under any law providing for preventive detention or any
other law for the time being in force, but does not include a
place for confinement of a person under the custody of the
police;”
Chapter XVII of the said Act deals with remission, release
and parole. Section 58 speaks about remission, Section 59
4Page 5
relates to special remission to examinees and Section 61,
with which we are concerned, speaks about release. Section
61 contains 6 sub-sections and thereafter Explanation has
been appended to. Mr. B.S. Malik, learned senior counsel for
the petitioner heavily relied on the Explanation to Section 61
which reads as under:
“Explanation – For the purpose of calculation of the total
period of imprisonment under this section, the period of
imprisonment for life shall be taken to be equivalent to the
period of imprisonment for 20 years.”
7) Relying on the Explanation and in view of the fact that
even according to the State, the petitioner has crossed 20
years in correctional home (prison), according to the learned
senior counsel, as per order of this Court dated 24.11.2010,
the respondents ought to have released the petitioner on
completion of a period of 20 years. The above claim was
resisted by Mr. Avijit Bhattacharjee, learned counsel for the
respondents. According to him, it cannot be construed that
the period of imprisonment for life is equivalent to
imprisonment for 20 years. He further pointed out that in
the absence of remission order for the whole period by the
State Government, the petitioner cannot be released.
5Page 6
8) Even at the outset, Mr. B.S. Malik, learned senior
counsel for the petitioner, relied on a decision rendered by
this Court on 16.09.2011 in Writ Petition (Crl.) No. 38 of 2011
titled Harpal Singh vs. State of Haryana & Another. The
said writ petition, under Article 32 of the Constitution, was
filed by one Harpal Singh for issuing a writ of Habeas Corpus
and to set him at liberty forthwith from his illegal detention
in the prison beyond 20 years of his sentence. This Court,
after going into the Jail Custody Certificate dated 28.08.2011
issued by the Superintendent Central Jail, Ambala and
finding that the petitioner had undergone imprisonment of
more than 20 years with remissions, allowed the writ petition
and directed the authorities to release him forthwith from
the jail unless his presence in jail is needed with reference to
any other case.
9) After going into the relevant provisions, viz., Section 57
of the Indian Penal Code, 1860 (in short “IPC”), Sections 2(c)
and 61 of the W.B. Act as well as various decisions of this
6Page 7
Court on this point, we are unable to accept the claim of the
petitioner for the following reasons.
10) Before adverting to various decisions, it is useful to
reproduce Section 57 of IPC which reads as under:
“57. Fractions of term of punishment – In calculating
fractions of terms of punishment, imprisonment for life
shall be reckoned as equivalent to imprisonment for twenty
years.”
11) At the foremost, it is useful to refer the decision of the
Constitution Bench of this Court in Gopal Vinayak Godse
vs. The State of Maharashtra & Ors., AIR 1961 SC 600.
In that case, a writ petition, under Article 32 of the
Constitution, was filed for an order in the nature of Habeas
Corpus claiming that the petitioner therein has justly served
his sentence and should, therefore, be released forthwith.
Among other questions, the main question considered by the
Constitution Bench was whether there is any provision of law
whereunder a sentence for life imprisonment, without any
formal remission by appropriate Government, can be
automatically treated as one for a definite period? The
Constitution Bench, in an answer to the above question, said
7Page 8
“No”. The following discussion and ultimate conclusion are
relevant:
“5………… No such provision is found in the Indian Penal
Code, Code of Criminal Procedure or the Prisons Act.
Though the Government of India stated before the Judicial
Committee in the case cited supra that, having regard to
Section 57 of the Indian Penal Code, 20 years’
imprisonment was equivalent to a sentence of
transportation for life, the Judicial Committee did not
express its final opinion on that question. The Judicial
Committee observed in that case thus at p. 10:
“Assuming that the sentence is to be regarded as
one of twenty years, and subject to remission for
good conduct, he had not earned remission sufficient
to entitle him to discharge at the time of his
application, and it was therefore rightly dismissed,
but in saying this, Their Lordships are not to be taken
as meaning that a life sentence must in all cases be
treated as one of not more than twenty years, or that
the convict is necessarily entitled to remission.”
Section 57 of the Indian Penal Code has no real
bearing on the question raised before us. For
calculating fractions of terms of punishment the
section provides that transportation for life shall be
regarded as equivalent to imprisonment for twenty
years. 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.”
“7. It is common case that the said rules were made
under the Prisons Act, 1894 and that they have statutory
force. But the Prisons Act does not confer on any authority
a power to commute or remit sentences; it provides only
for the regulation of prisons and for the treatment of
prisoners confined therein. Section 59 of the Prisons Act
8Page 9
confers a power on the State Government to make rules,
inter alia, for rewards for good conduct. Therefore, the
rules made under the Act should be construed within the
scope of the ambit of the Act. The rules, inter alia, provide
for three types of remissions by way of rewards for good
conduct, namely, (i) ordinarily, (ii) special and (iii) State.
For the working out of the said remissions, under Rule
1419(c), transportation for life is ordinarily to be taken as
15 years’ actual imprisonment. The rule cannot be
construed as a statutory equation of 15 years’ actual
imprisonment for transportation for life. The equation is
only for a particular purpose, namely, for the purpose of
“remission system” and not for all purposes. The word
“ordinarily” in the rule also supports the said construction.
The non obstante clause in sub-rule (2) of Rule 1447
reiterates that notwithstanding anything contained in Rule
1419 no prisoner who has been sentenced to
transportation for life shall be released on completion of
his term unless orders of the Government have been
received on a report submitted to it. This also indicates
that the period of 15 years’ actual imprisonment specified
in the rule is only for the purpose of calculating the
remission and that the completion of the term on that
basis does not ipso facto confer any right upon the prisoner
to release. The order of the Government contemplated in
Rule 1447 in the case of a prisoner sentenced to
transportation for life can only be an order under Section
401 of the Code of Criminal Procedure, for in the case of a
sentence of transportation for life the release of the
prisoner can legally be effected only by remitting the entire
balance of the sentence. Rules 934 and 937(c) provide for
that contingency. Under the said rules the orders of an
appropriate Government under Section 401 Criminal
Procedure Code, are a pre-requisite for a release. No other
rule has been brought to our notice which confers an
indefeasible right on a prisoner sentenced to transportation
for life to an unconditional release on the expiry of a
particular term including remissions. The rules under the
Prisons Act do not substitute a lesser sentence for a
sentence of transportation for life.
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
9Page 10
term. Unless the said sentence is commuted or remitted by
appropriate authority under the relevant provisions of the
Indian 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 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.”
From the above decision, it is clear that in the absence of
subsequent order of remission by the competent
Government either based on Section 57 of IPC or any other
provision of the Criminal Procedure Code, 1973, the life
convict cannot be released. The above decision of the
Constitution Bench has been followed in various subsequent
decisions.
10Page 11
12) In State of Madhya Pradesh vs. Ratan Singh &
Ors., (1976) 3 SCC 470, following the decision of the
Constitution Bench in Gopal Vinayak Godse’s case
(supra), this Court held as under:
“4. As regards the first point, namely, that the prisoner
could be released automatically on the expiry of 20 years
under the Punjab Jail Manual or the Rules framed under the
Prisons Act, the matter is no longer res integra and stands
concluded by a decision of this Court in Gopal Vinayak
Godse v. State of Maharashtra where the Court, following a
decision of the Privy Council in Pandit Kishori Lal v. KingEmperor,AIR 1945 PC 64 observed as follows:
“Under that section, a person transported for life
or any other term before the enactment of the said
section would be treated as a person sentenced to
rigorous imprisonment for life or for the said term.
If so, the next question is whether there is any
provision of law whereunder a sentence for life
imprisonment, without any formal remission by
appropriate Government, can be automatically
treated as one for a definite period. No such
provision is found in the Indian Penal Code, Code of
Criminal Procedure or the Prisons Act.
* * *
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.”
The Court further observed thus:
“But the Prisons Act does not confer on any
authority a power to commute or remit sentences; it
provides only for the regulation of prisons and for the
treatment of prisoners confined therein. Section 59
of the Prisons Act confers a power on the State
Government to make rules, inter alia, for rewards for
good conduct. Therefore, the rules made under the
Act should be construed within the scope of the
11Page 12
ambit of the Act…. Under the said rules the orders of
an appropriate Government under Section 401 of the
Criminal Procedure Code, are a prerequisite for a
release. No other rule has been brought to our notice
which confers an indefeasible right on a prisoner
sentenced to transportation for life to an
unconditional release on the expiry of a particular
term including remissions. The rules under the
Prisons Act do not substitute a lesser sentence for a
sentence of transportation for life.
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.”
It is, therefore, manifest from the decision of this Court
that the Rules framed under the Prisons Act or under the
Jail Manual do not affect the total period which the prisoner
has to suffer but merely amount to administrative
instructions regarding the various remissions to be given to
the prisoner from time to time in accordance with the
rules. This Court further pointed out that the question of
remission of the entire sentence or a part of it lies within
the exclusive domain of the appropriate Government under
Section 401 of the Code of Criminal Procedure and neither
Section 57 of the Indian Penal Code nor any Rules or local
Acts can stultify the effect of the sentence of life
imprisonment given by the court under the Indian Penal
Code. In other words, this Court has clearly held that a
sentence for life would enure till the lifetime of the accused
as it is not possible to fix a particular period of the
prisoner’s death and remissions given under the Rules
could not be regarded as a substitute for a sentence of
transportation for life. In these circumstances, therefore, it
is clear that the High Court was in error in thinking that the
respondent was entitled to be released as of right on
completing the term of 20 years including the remissions.
For these reasons, therefore, the first contention raised by
the Learned Counsel for the appellant is well founded and
must prevail.
12Page 13
9. From a review of the authorities and the statutory
provisions of the Code of Criminal Procedure the following
propositions emerge:
“(1) that a sentence of imprisonment for life does not
automatically expire at the end of 20 years including
the remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act
cannot supersede the statutory provisions of the Indian
Penal Code. A sentence of imprisonment for life means
a sentence for the entire life of the prisoner unless the
appropriate Government chooses to exercise its
discretion to remit either the whole or a part of the
sentence under Section 401 of the Code of Criminal
Procedure;
(2) that the appropriate Government has the
undoubted discretion to remit or refuse to remit the
sentence and where it refuses to remit the sentence no
writ can be issued directing the State Government to
release the prisoner;
(3) that the appropriate Government which is
empowered to grant remission under Section 401 of the
Code of Criminal Procedure is the Government of
the State where the prisoner has been convicted and
sentenced, that is to say, the transferor State and not
the transferee State where the prisoner may have been
transferred at his instance under the Transfer of
Prisoners Act; and
(4) that where the transferee State feels that the
accused has completed a period of 20 years it has
merely to forward the request of the prisoner to the
concerned State Government, that is to say, the
Government of the State where the prisoner was
convicted and sentenced and even if this request is
rejected by the State Government the order of the
Government cannot be interfered with by a High Court
in its writ jurisdiction.”
After holding so, this Court set aside the order of the High
Court releasing the prisoner therein from Central Jail,
Amritsar.
13Page 14
13) In Kartar Singh & Ors. vs. State of Haryana, (1982)
3 SCC 1, a Bench of three Judges of this Court while
considering the similar claim held as under:
“6……Further, Section 57 IPC or the remission rules
contained in Jail Manual (e.g. para 516-B of Punjab/Haryana
Jail Manual) are irrelevant in this context. Section 57 IPC
provides that imprisonment for life shall be reckoned as
equivalent to imprisonment for 20 years for the specific
purpose mentioned therein, namely, for the purpose of
calculating fractions of terms of punishment and not for all
purposes; similarly remission rules contained in Jail
Manuals cannot override statutory provisions contained in
the Penal Code and the sentence of imprisonment for life
have to be regarded as a sentence for the remainder of the
natural life of the convict. The Privy Council in Pandit
Kishori Lal case and this Court in Gopal Godse case have
settled this position once and for all by taking the view that
a sentence for transportation for life or imprisonment for
life must be treated as transportation or imprisonment for
the whole of the remaining period of the convicted
person’s natural life. This view has been confirmed and
followed by this Court in two subsequent decisions — in
Ratan Singh case, and Maru Ram case In this view of the
matter life convicts would not fall within the purview of
Section 428 CrPC.”
The Bench also considered Gopal Godse case (supra) and
the decision of the Privy Council in Pandit Kishori Lal vs.
King Emperor, AIR 1945 PC 64.
14) In Laxman Naskar vs. Union of India & Ors., (2000)
2 SCC 595, this Court reiterated the same proposition.
15) The last decision which is directly on the point similar to
the case on hand is Mohd. Munna vs. Union of India &
14Page 15
Ors. etc. (2005) 7 SCC 417. The said case arose in a writ
petition filed under Art. 32 of the Constitution. According to
the petitioner therein, the length of duration of
imprisonment for life is equivalent to 20 years’ imprisonment
and that too subject to further remission admissible under
law. It was further pointed out that on completion of this
term, he was liable to be released under Rule 751(c) of the
West Bengal Jail Code. The petitioner relied on Explanation
to Section 61 of the West Bengal Correctional Services Act,
1992 (West Bengal Act 32 of 1992) whereunder
imprisonment for life is equated to a term of 20 years’
imprisonment. As said earlier, it is a case identical to the
case on hand. Here again, Explanation to Section 61 of the
West Bengal Act was pressed into service. After going into
the very same provisions and considering the decision of the
Privy Council in Pandit Kishori Lal’s case (supra) as well
as the decision of the Constitution Bench in Gopal Vinayak
Godse’s case (supra), this Court concluded thus:
“13. The counsel contended that by virtue of Rule 751(c) of
the West Bengal Jail Code, the petitioner was liable to be
released from jail on completion of twenty years. He also
relied on the Explanation to Section 61 of the West Bengal
15Page 16
Correctional Services Act, 1992 (W.B. Act 32 of 1992) wherein
the imprisonment for life is equated to a term of twenty years’
simple imprisonment for the purpose of remission. But there
is no provision either in the Indian Penal Code or in the Code
of Criminal Procedure whereby life imprisonment could be
treated as fourteen years or twenty years without there being
a formal remission by the appropriate Government. Section
57 of the Penal Code reads as follows:
“57. Fractions of terms of punishment.—In
calculating fractions of terms of punishment,
imprisonment for life shall be reckoned as equivalent to
imprisonment for twenty years.”
The above section is applicable for the purpose of
remission when the matter is considered by the
Government under the appropriate provisions. This very
plea was placed before the Judicial Committee of the
Privy Council in Kishori Lal v. Emperor5 and the Privy
Council held as under: (AIR p. 67)
“Assuming that the sentence is to be regarded as
one of 20 years, and subject to remission for good
conduct, he had not earned remission sufficient to
entitle him to discharge at the time of his application
and it was therefore rightly dismissed but, in saying
this, Their Lordships are not to be taken as meaning
that a life sentence must and in all cases be treated as
one of not more than 20 years or that the convict is
necessarily entitled to remission.”
14. The Prisons Rules are made under the Prisons Act and
the Prisons Act by itself does not confer any authority or
power to commute or remit sentence. It only provides for the
regulation of the prisons and for the terms of the prisoners
confined therein. Therefore, the West Bengal Correctional
Services Act or the West Bengal Jail Code do not confer any
special right on the petitioner herein.
15. In Godse case6, the Constitution Bench of 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. It was
also held in AIR para 5 as follows: (SCR pp. 444-45)
“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
16Page 17
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.”
16. Summarising the decision, it was held in AIR para 8 as
under: (SCR p. 447)
“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 Indian
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 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.”
We are bound by the above dicta laid down by the
Constitution Bench and we hold that life imprisonment is not
17Page 18
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.”
16) It is clear that neither Section 57 IPC nor Explanation to
Section 61 of the W.B. Act lays down that a life imprisonment
prisoner has to be released after completion of 20 years. 20
years mentioned in 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 pre-mature 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 401 of the Code of Criminal
Procedure, 1973 and neither Section 57 of the IPC nor any
rules or local Acts (in the case on hand W.B. Act) can stultify
the effect of the sentence of life imprisonment given by the
18Page 19
Court under the 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 of the IPC
does not, in any way, limit the punishment of imprisonment
for life to a term of 20 years.
17) In the case on hand, it is highlighted by the learned
counsel for the respondents that in West Bengal there is a
duly constituted Review Board for consideration of
applications for premature release made by life convicts. It
consists of:
1. Additional Chief Secretary, Home Department –
Chairman of the Review Board;
2. Commissioner of Police, Kolkata – Member
3. Chief Probation Officer, West Bengal – Member
4. Inspector General of Prisons, West Bengal – Member
5. Judicial Secretary, West Bengal – Convener
6. Director General and Inspector General of Police, West
Bengal – Member
7. Principal Secretary, Jails Department, West Bengal –
Member
19Page 20
On receipt of the application for premature release except
under Article 161 of the Constitution, the Review Board
would go into all the details and place it before the
Government. Ultimately on approval of the Hon’ble Chief
Minister, the convict is prematurely released under Section
432 of the Criminal Procedure Code, 1973. Insofar as
application under Article 161 is concerned, it was explained
that the procedure followed remains the same but the file is
finally placed before His Excellency the Governor of the
State through the Hon’ble Chief Minister.
18) In the counter affidavits filed by the State, it is pointed
out that regarding the case of the petitioner –Khoka @
Prasanta Sen, the Sentence Review Board observed as
under:
“The life convict was convicted on 18.01.1990 under
Section 302/34 IPC and detained in connection with S.T.
No. 01 of June 1989. He was released on parole from
Presidency Correctional Home on 29.04.2005 in
compliance with Hon’ble Supreme Court’s order in Writ
Petition (Criminal) No. 279 of 2004. The police authority
vehemently opposed the premature release of the life
convict on the following grounds:
(a) He was a notorious fellow in the area before his
conviction.
(b) He still maintains relationship with his old associates.
20Page 21
(c) He is within the age of 52 years with sound health.
(d) His socio economic condition is not sound.
(e) In case of his premature release there is every
possibility of his reverting to criminality.
(f) During his parole he has been technically serving life
imprisonment binding him to refrain from criminal
activities for the time being. There is every
possibility of his committing further crimes.
Considering the above fact, the Review Board did not
find any reason to recommend premature release of
the life convict now on parole.”
It is seen that after careful consideration of all the aspects,
the Review Board in its meeting held on 27.01.2011 did not
recommend the petitioner for his premature release. The
recommendation of the Review Board was placed before the
State Government and the State Government accepted the
recommendation of the State Sentence Review Board. The
decision of the State Government was communicated to the
petitioner vide letter No. 790-J dated 09.02.2012.
19) In view of the decision of the State Sentence Review
Board, approval by the State Government and the principles
enunciated in various decisions of this Court including the
decision of the Constitution Bench in Gopal Vinayak
Godse’s case (supra), we find no merit in the contempt
petition, consequently, the same is dismissed.
21Page 22
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
FEBRUARY 13, 2013.
22

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