KISHORI LAL Vs. EMPEROR

JUDGEMENT

(1.) On 7 October 1980, the appellant was convicted before the Special Tribunal set up under Ordinance 8 of 1930 of certain offences, including those of waging war against the King, contrary to S.121, Indian Penal Code, and of murder, contrary to S. 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 29 August 1982, 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 S.55, Indian Penal Code, or S.402 (1), Criminal PC, to one of rigorous imprisonment. While there is no section either in the Indian Penal Code, or in the Criminal P. C., 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 S. 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 S. 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 1 July 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 be applied to the High Court at Lahore for an order in the nature of a habeas corpus under S. 491, Criminal PC, claiming that he had justly served his sentence and should therefore be released. His application was refused by Monroe J. on 13 July. 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.) The appellant's main contention was, and is, that as he has all along been subjected to rigorous imprisonment he cannot be made to serve longer than a term, which, aggregated with the period of remission earned, amounts to 14 years, that being the maximum term of rigorous imprisonment permitted by law. He also contends that the Government by causing him to be dealt with in the same manner as if sentenced to rigorous imprisonment must be deemed to have commuted his sentence under S. 55, Indian Penal Code. The contention of the Government is that they can confine a prisoner sentenced to transportation in any prison appointed by them for that purpose there to be dealt with as though sentenced to rigorous imprisonment, but that this does not affect the length of the sentence unless it has been commuted, and the present appellant's sentence never has been commuted. It is therefore necessary to examine the various statutory provisions dealing with the sentence of transportation.