KISHORI LAL Vs. EMPEROR

JUDGEMENT

(1.) ON October 7, 1930, the appellant was convicted before the Special Tribunal set up under Ordinance III of 1930 of certain offences, including those of waging war against the King, contrary to Section 121 of the Indian Penal Code, and of murder, contrary to Section 302. For these offences he was sentenced to transportation for life, which is the only sentence, other than death, which can be awarded for these two crimes. After conviction he was imprisoned in the Central Jail at Multan and in January, 1936, was transferred to the Central Jail at Lahore. ON August 29, 1932, the Home Secretary to the Government of the Punjab wrote to the Inspector-General of Prisons, saying that the Governor in Council agreed that the appellant, on the score of his crime, was unsuitable for transportation to the Andamans, adding that "he cannot be deported as a terrorist as the Government of India has not so far addressed any communication authorising the Punjab Government to deport terrorists there. " The Andamans is the only place outside the mainland of India to which convicts sentenced to transportation are sent, and it is not in dispute that this letter signified the intention of the Government not to transport the appellant overseas but to keep him imprisoned in India. In fact, he has ever since been kept in the Central Jail at Lahore, and has there been dealt with in the same manner as if sentenced to rigorous imprisonment. His sentence has never been commuted under Section 55 of the Penal Code, or Section 402(1) of the Code of Criminal Procedure, to one of rigorous imprisonment. While there is no section either in the Penal Code, or in the Code of Criminal Procedure, which says in terms that no sentence of rigorous imprisonment is to exceed 14 years, it is the fact that in no case where rigorous imprisonment is prescribed as the punishment is the maximum term longer than 14 years and, by a proviso to Section 35(2) of the latter Act, consecutive sentences of imprisonment cannot amount in the aggregate to more than 14 years. So it can be said with truth that when the Code enacts that an offence shall be punishable by rigorous imprisonment as the sentence, it cannot exceed that period. The only sentence known to the law which can exceed 14 years is one of transportation for life and with two exceptions where transportation is a part of the sentence the term is always for life. Convicts serving this sentence may be granted remission for good conduct, and for the purpose of calculating remission in the case of life sentences, it appears that in India they are treated as sentences of 20 years. This is no doubt the reason why Section 57 of the Code provides that for calculating a fractional part of a life sentence it should be treated as one of 20 years.

(2.) ON July 1, 1943, the position was that the appellant had earned remission and, if the amount thus earned were added to the term he had actually served, the aggregate would have exceeded 14 years but would not have exceeded 20 years. ON that date he applied to the High Court at Lahore for an order in the nature of a habeas corpus under Section 491 of the Code of Criminal Procedure, claiming that he had justly served his sentence and should therefore be released. His application was refused by Monroe J. on July13. ON appeal the High Court held that they had no jurisdiction to entertain it as being one in relation to a criminal matter, and it is conceded that this view was correct. Subsequently, special leave to appeal to His Majesty in Council from the order of Monroe J. was granted as it was clear that a question of importance and some difficulty was involved.

(3.) BY Section 31, the Governor in Council may order the removal of a person sentenced to transportation from the prison in which he is confined to any other prison in British India. BY Section 32, as amended in 1920, the Local Government may appoint places within the province to which prisoners under sentence of transportation shall be sent and the Local Government or an officer authorised by them shall give orders for the removal of such persons to the places so appointed except where sentence of transportation is passed on a person already undergoing transportation under a sentence previously passed for another offence. Since 1937, all the above powers can now be exercised by Provincial Governments.