REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s). 3086 OF 2016

STATE OF RAJASTHAN AND OTHERS ...APPELLANT(S)

VERSUS

MUKESH SHARMA     ...RESPONDENT(S)

WITH

CIVIL APPEAL NO(s). 3092 OF 2016

STATE OF RAJASTHAN AND ANOTHER ...APPELLANT(S) VERSUS

GURUBUX SINGH alias BAKSHI SINGH     ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3087 OF 2016

STATE OF RAJASTHAN AND OTHERS ...APPELLANT(S) VERSUS

BIRBAL RAM          ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3088 OF 2016

STATE OF RAJASTHAN AND OTHERS ...APPELLANT(S) VERSUS

RATAN LAL      ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3089 OF 2016

STATE OF RAJASTHAN AND ANOTHER ...APPELLANT(S) VERSUS

RAM GOPAL      ...RESPONDENT(S)

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CIVIL APPEAL NO(s). 3091 OF 2016

STATE OF RAJASTHAN AND ANOTHER ...APPELLANT(S) VERSUS

BIRBAL MAHARIYA      ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3090 OF 2016

STATE OF RAJASTHAN AND OTHERS ...APPELLANT(S) VERSUS

TEJ SINGH alias SANWAT SINGH      ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3093 OF 2016

STATE OF RAJASTHAN AND ANOTHER ...APPELLANT(S) VERSUS

RAM AVTAR KHATIK AND OTHERS      ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3094 OF 2016

STATE OF RAJASTHAN AND ANOTHER ...APPELLANT(S) VERSUS

RAM RATAN AND OTHERS      ...RESPONDENT(S)

CIVIL APPEAL NO(s). 3095 OF 2016

STATE OF RAJASTHAN ...APPELLANT(S) VERSUS

ARJUN      ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

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A common question of law arises for consideration in this

batch of appeals. The individual facts are therefore not relevant

for adjudication. Suffice it to observe that each of the

respondents in the respective appeals was convicted under

Section 302 and other provisions of the Indian Penal Code in

different Sessions trials arising from separate unconnected

incidents and sentenced to imprisonment for life. They filed

individual writ petitions contending that they had served more

than 14 years in custody but their cases were not placed by the

Jail Authorities before the State Advisory Boards for shortening

of their  sentences  and premature  release.  The constitutional

validity of  Rule 8(2)(i)  of the Rajasthan Prisons  (Shortening of

Sentences) Rules, 2006,  (hereinafter referred to as “the Rules,

2006”) was challenged, putting a fetter on consideration of their

cases till they earned a minimum of four years of remission after

completing 14 years of actual imprisonment excluding

remission, as being contrary to Section 433­A Cr.P.C.  No other

issue was urged.

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2. The Rules, 2006 were framed by the State Government in

exercise of powers under Clause (2) & (5) of Section 59 (1) of the

Prisons Act, 1894 (hereinafter referred to as ‘the Act’).   The High

Court  held that the  Rules  not  having  been  placed  before the

Legislature of the State as required by Section 59(2) of the Act did

not acquire statutory force.   Furthermore, the Rules could not

have been framed contrary to Section 433­A of the Code of

Criminal Procedure, 1973, relying on the  Constitution  Bench

decision in Maru Ram vs. Union of India, 1981 (1) SCC 107.  

3. In view of the question of law involved, it will be proper to

set out the statutory provisions arising for consideration.  

“Section 59. Power to make rules.­  

(1)  The State  Government  may by notification  in the Official Gazette make rules consistent with this Act­

                           xxx (2) determining the classification of prison­ offences into serious and minor offences;                         xxx (5) for the award of marks and the shortening of sentences;

xxx

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(2)  Every  Rule  made under this  section shall  be laid, as soon as may be after it is made, before the State Legislature.”  

“Rule 8(2) Notwithstanding anything contained in sub­rule (i)

(i) a prisoner who has been sentenced to imprisonment for life for any offence for which death penalty is one of the punishment provided by law or who has been sentenced to death but this sentence has been commuted under Section 433 of Code of Criminal Procedure, 1973, into one of imprisonment for life, shall be considered only after he has served 14 years of actual imprisonment excluding remission but including the period of detention spent during enquiry, investigation or trial, on the condition that such a prisoner shall also have to earn minimum of 4 years of remission in order to be eligible for consideration.”

“Section 433­A. Restriction on powers of remission and commutation in certain cases  ­ Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released  from prison unless he had served at least fourteen years of imprisonment.”   

4. Learned Senior Counsel Dr. Manish Singhvi, for the

appellants, submitted that the High Court erred in striking down

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the latter part of Rule 8(2)(i) requiring a minimum of four years

remission after completion of 14 years in custody on both

counts.  Adverting to the striking down of the Rule for not laying

it before the Legislature, it was submitted that the Rules did not

contemplate laying before the Legislature prior to promulgation,

as a pre­condition.  The use of the words “as soon as” does not

give any definite time period before which it is to be laid before

the State Legislature.   No consequences were provided for not

laying the Rules before the Legislature, and in absence of which

it could not come into force. The provision was therefore

directory and not mandatory.  Any omission, therefore, in laying

the Rules before the Legislature does not render the Rules

invalid.   In  any event, the  Rules  had subsequently  been  laid

before the Legislature.   Dr. Singhvi relied on  M/s. Atlas Cycle

Industries Ltd. & ors. vs. the State of Haryana, (1979) 2 SCC

196.

5. It was next submitted that remission after completion of 14

years in custody was not a matter of right, but was dependent

on a host of considerations.   Maru Ram  (supra) has not been

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correctly appreciated. Life imprisonment normally  means an

imprisonment for life. Section 433­A, Cr.P.C. stipulates that

where sentence for imprisonment for life is imposed for an

offence for which death is one of the punishments such person

shall not be released from prison unless he had served at least

fourteen years of imprisonment. Thus, the State in its wisdom

could easily provide that life imprisonment shall not be subject

to any remission or provide limitations on the same.  Remission,

in the present case, being a matter of State policy as

incorporated in statutory rules falling within the domain of the

State, could not be claimed as a matter of fundamental right.

Reliance was placed on  Mohd. Munna vs. Union of India &

ors., (2005) 7 SCC 417.  The State Government could, therefore,

always insist on a minimum number of years before premature

release of a convict serving life sentence.

6. Learned  counsel for the respondents  submitted that the

remission policy of the State Government was ultra vires Article

14 of the Constitution of India as it would take approximately 18

years of imprisonment for a model prisoner to earn 4 years of

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remission,  making  it  virtually impossible to  be  considered  for

shortening of sentence in terms of Section 433­A.   Rule 8(2)(i)

was clearly contrary to Section 433­A Cr.P.C. in view of  Maru

Ram  (supra) to the extent that it restricts consideration for

remission after 14 years.

7. We have considered the respective submissions.  The plain

language  of  Section 59(2)  makes it  manifest that there is  no

requirement for laying of the Rules before the Legislature prior to

promulgation. No time limit  for  laying has been provided.   As

rightly urged, the use of words “as soon as” coupled with the

absence of any consequence for not laying makes the provision

directory  and not  mandatory.   In  Atlas  Cycle  (supra) it  was

observed:

“22. …In the instant case, it would be noticed that sub­ section (6) of Section 3 of the Act  merely provides that every order made under Section 3 by the Central Government or by any officer or authority of the Central Government shall be laid before both Houses of Parliament, as soon as may be, after it is made.  It does not provide that it shall be subject to the negative or the affirmative resolution by either House of Parliament.   It also does not provide that it shall be open to the

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Parliament to approve or disapprove the order made under Section 3 of the Act.  It does not even say that it shall be subject to any  modification which either House of Parliament may in its wisdom think it necessary to provide.   It does not even specify the period for which the order is to be laid before both Houses of Parliament nor does it provide any penalty for non­observance of or non­ compliance with the direction as to the laying of the order before both  Houses of Parliament.   It would also be noticed that the requirement as to the laying of the order before both Houses of Parliament is not a condition precedent but subsequent to the making of the order.   In other words, there is no prohibition to the making of the orders without the approval of both Houses of Parliament.  In these circumstances, we are clearly of the view that the requirement as to laying contained in sub­section (6) of Section 3 of the Act falls  within the first  category i.e. “simple laying” and is directory not mandatory.”

In conclusion, it was held that the Legislature never

intended that non­compliance with the requirement of laying as

envisaged by sub­section (6) of Section 3 of the Act should

render the order void.   

8.  Part­3 of the  Rajasthan Prison Rules, 1951, under the

heading Remission System, in Rule 1(e) provides that the

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sentence for imprisonment for life or transportation of life shall

be deemed to mean imprisonment for 20 years.

9.     Rule 2(e) of the Rules 2006, defines shortening of sentence

to mean the reduction of that period of sentence of a prisoner

which he has to serve in the prison upon a judicially pronounced

sentence as a matter of grace on the part of the State and as a

recognition of his good behaviour in the prison.

10.  That sentence for imprisonment for life or transportation of

life under the Penal Code shall mean the convict’s natural life

needs no further elaboration in view of  Gopal Vinayak Godse

vs. State of Maharashtra  (1961) 3 SCR 440 followed in para

72(4) of Maru Ram (supra) as follows:

“5….. 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.”  

11.  Section 432 Cr.P.C. provides for the power to suspend or

remit sentences and also to refuse the same.   Section 433 (b)

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Cr.P.C. provides for commuting a sentence of imprisonment for

life to 14 years.  Section 433­A Cr.P.C. provides that remission or

commutation shall not enable release of the convict from prison

unless the person had served at least 14 years of imprisonment.

It, therefore, fixes a  minimum period before  which remission

could not be considered.   Any rule that may provide to consider

remission before 14 years would obviously be bad in view of the

statutory provision contained in the Code.  In Union of India vs.

V. Sriharan, (2016) 7 SCC 1, it was observed:

“79.  In this context, the submission of the learned Solicitor General on the interpretation of Section 433­A CrPC assumes significance. His contention was that under Section 433­A CrPC what is prescribed is only the minimum and, therefore, there is no restriction to fix it at  any period beyond 14 years  and up to the  end of one’s lifespan. We find substance in the said submission.  When we refer to  Section 433­A,  we  find that the expression  used in the said section for the purpose of grant of remission relating to a person convicted and directed to undergo life imprisonment, it stipulates that “such person shall not be released from prison unless he had served  at least  fourteen years of imprisonment” (emphasis supplied). Therefore, when the minimum imprisonment is prescribed under the statute, there will be every justification for the court which considers the nature of offence for which conviction is imposed on the offender for which offence the extent of punishment either death or life imprisonment is provided for, it should be held that there will be every justification and authority for the court to ensure in the interest of the public at large and the society, that such

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person should undergo imprisonment for a specified period even beyond 14 years without any scope for remission. In fact, going by the caption of the said Section  433­A, it imposes a restriction on  powers of remission or commutation in certain cases….”

12.  Manifestly remission not being a matter of right, much less

upon completion of  14 years of  custody,  but subject to rules

framed in that regard, including complete denial of the same in

specified circumstances, as a  matter of  State  policy,  nothing

prevents the  State from imposing restrictions in the  manner

done by Rule 8(2)(i) to consider claims for remission.   In  Maru

Ram (supra) this Court held:

“30. A possible confusion creeps into this discussion by equating life imprisonment with 20 years’ imprisonment. Reliance is placed for this purpose on Section 55 IPC and on definitions in  various  Remission Schemes.  All that we need say, as clearly pointed out in Godse, is that these equivalents are meant for the limited objective of computation to help the State exercise its wide powers of total remissions. Even if the remissions earned  have totalled up to 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoner cannot claim his liberty. The reason is that life sentence is nothing less than lifelong imprisonment.  Moreover,  the penalty then and now is the same — life term. And remission vests no right to release when the sentence is life imprisonment. No greater punishment  is  inflicted by Section 433­A than the law annexed originally to the crime. Nor is any

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vested right to remission cancelled by compulsory 14­ year jail life once we realise the truism that a life sentence is a sentence for a whole life.”  

13. It is, therefore, held that the High Court erred in striking

down Rule 8(2)(i) of the Rules, 2006 on both counts.  The Rule is

held  to be valid  and consistent with  the  law.   The  impugned

orders of the  High  Court are set aside and the appeals are

allowed.   

.……………………….J.  (Arun Mishra)                   

………………………..J.  (Navin Sinha)   

New Delhi, April 22, 2019

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