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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:

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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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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  

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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.   

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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:

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“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:  

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“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  

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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 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  

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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,

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JULY 2, 2014.

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