GOPAL VINAYAK GODSE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) THIS is a; petition under Art. 32 of the Constitution for an order in the nature of habeas corpus claiming that the petitioner has justly served his sentence and should, therefore, be released.

(3.) THE first question that falls to be decided is whether, under the relevant statutory provisions, an accused who was sentenced to transportation for life, could legally be imprisoned in one of the jails in India; and if so, what was the term for which he could be so imprisoned. We shall briefly notice the relevant provisions of the Indian Penal Code before it was amended by the Code of Criminal Procedure (Amendment) Act XXVI of 1955. Section 53 of the Indian Penal Code set out six different punishments to which offenders were liable. THE second of those punishments was transportation and the fourth was imprisonment which was of two descriptions, namely, rigorous and simple. THE word ' transportation ' was not defined in the Indian Penal Code, but it was for life with two exceptions. Under s. 55 of the Indian Penal Code, ' In every case in which sentence of transportation for life shall have been passed, the Provincial government of the Province within which the offender shall have been sentenced may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.' Under s. 58 thereof, in every case in which a sentence of transportation was passed, the offender, until he was transported, should be dealt with in the same manner as if sentenced to rigorous imprisonment and should be held to have been undergoing his sentence of transportation during the term of his imprisonment. It was averred on behalf of the State that the petitioner's sentence had not been commuted under s. 55 of the Indian Penal Code or under s. 402 (1) of the Code of Criminal Procedure to one of rigorous imprisonment. We have no reason for not accepting this statement. On that basis, a question arises whether the petitioner, who was sentenced to transportation, could be dealt with legally as if he were a person sentenced to rigorous imprisonment. This question was raised before the Judicial Committee of the Privy council in Pandit Kishori Lal v. King Emperor(1). After considering the history of the sentence of transportation, the relevant provisions of the Indian Penal Code, the Code of Criminal Procedure and the Prisons Act, the Privy council came to the conclusion that the said provisions made it plain that when a sentence of transportation had been passed it was no longer necessarily a sentence of transportation beyond the seas. It was observed at p. 9 thus: ' But at the present day transportation is in truth but a name given in India to a sentence for life and, in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentences which do not exceed two years and penal servitude to those of three years and upwards...... .................. So, in India, a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners, where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment.' In view of this weighty authority with which we agree, it is not necessary to consider the relevant provisions, particularly in view of s. 53A of the Indian Penal Code which has been added by Act XXVI of 1955. Section 53A of the said Code reads: '(1).......... (2) In every case in which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act, 1954, the offender shall be dealt with in the same manner as if sentenced to rigorous imprisonment for the same term. Whatever justification there might have been for the contention that a person sentenced to transportation could not be legally made to undergo rigorous imprisonment in a jail in India except temporarily till he was so transported, subsequent to the said amendment there is none. 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.