Judgment:
A.A. Kumbhakoni, J.
1. Rule. Rule made returnable forthwith. The learned APP waives service of the rule. By consent of parties, taken for final disposal at the admission stage itself, since very short issue is involved in the matter.
2. This writ petition is received by this Court though the jail. The petitioner by this writ petition invokes the writ jurisdiction of this Court under Article 226 of the Constitution of India, for claiming set off, as contemplated by Section 428 of Code of Criminal Procedure (hereinafter referred to as 'the Code' for the sake brevity). At present the petitioner is lodged in Nashik Road Central Prison, Nashik.
3. As the petition was received through jail, we requested Mr. Nitin Pradhan, the learned Counsel who was present in the Court to assist as amicus. As usual, he readily accepted our invitation and has rendered his valuable assistance to us for which we hereby record our deep appreciation. We have also heard the learned APP for the State.
4. Undisputed facts of the case are as under-
The petitioner was arrested in connection with an offence punishable under Section 302 r/w Section 201 of Indian Penal Code, on 30th February, 1992. The petitioner was tried by the Additional Sessions Judge, Malegaon and was convicted by a judgment and order dated 20th October, 1993. The operative portion of this judgment has required us to entertain this petition and deliver this somewhat detailed judgment. In other words this operative portion is 'the cause of action' for this judgment, which reads thus-
1. The accused is hereby convicted for the offence punishable Under Section 302 of Indian Penal Code. He is sentenced to suffer R.I. For life and to pay fine of Rs. 2000/(Two thousand only) in default of payment of fine, the accused to suffer further R.I. for three months.
2. The accused is acquitted of the offence punishableunder Section 201 of Indian Penal Code.
3. The accused is undertrial prisoner but as he is sentenced for life imprisonment, no setoff is givenunder Section 428 of Code of Criminal Procedure.
5. The petitioner had preferred Criminal Appeal No. 168 of 1994 with this Court and the Division Bench was pleased to dismiss the same by its Judgment and order dated 19th August, 1996. A perusal of this judgment delivered in Appeal demonstrates that the Division Bench of this Court did not consider the aforesaid emphasised part of the operative order of the learned Sessions Judge and has not pronounced its view on the same. It appears that nothing was submitted to the Division Bench on behalf of the petitioner at that time in this regard. The Division Bench while dismissing the appeal has observed thus-
15. ...Having to the medical evidence on record, we have no hesitation in holding that the accused is guilty of having committed offence under Section 302 of the Indian Penal Code.
16. In the result, we find no reason to interfere with the judgment and order of sentence dated 20th October, 1993 passed by the Addl. Sessions Judge, Malegaon in Sessions Case No. 52/93, which is impugned in the present appeal. In the result, the appeal is dismissed.
6. As the petitioner now claims that the petitioner was never released on bail, once he was arrested on 30th February, 1992 till he was convicted on 20th October, 1993. It is also not disputed that during the pendency of trial as well as the appeal the petitioner continued to remain in the custody. Thus, as on 31st May, 2008 the petitioner has suffered imprisonment as under-
Years Months Days14 07 14 - Actual imprisonment02 00 00 - Remission by the State.05 01 20 - Other remissions.________________________________________21 09 04 - Total imprisonment.
With the aforesaid admitted factual matrix, the petitioner claims that appropriate set off be granted to the petitioner under Section 428 of the Code, which reads thus-
Section 428 : Period of detention undergone by the accused to be set off against the sentence of imprisonment - Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment, on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Provided that in cases referred to Section 433A, such period of detention shall be set off against the period of fourteen years referred in that section.
7. Whether imprisonment 'for life' is imprisonment 'for a term' under the aforesaid Section 428 was an issue that was considered by the Supreme Court in the case of Bhagirath v. Delhi Administration reported in : 1985CriLJ1179 , wherein it is held by the Supreme Court that the person who is sentenced 'for life imprisonment' is a person sentenced to imprisonment 'for a term', as contemplated by the provisions of Section 428 of the Code of Criminal Procedure.
8. It is pertinent to note that the aforesaid proviso to Section 428 Cr.P.C. was not there when the Supreme Court delivered the aforesaid judgment in the case of Bhagirath (supra). This proviso came to be added by an amendment Act 25, 2005, with effect from 23rd June, 2006. The Bill that introduced, this amendment states that-
5.7 Clause 39): This clause adds a proviso to Section 428 providing for a set off of the period of detention during investigation and trial against period of 14 years of actual imprisonment. This amendment is necessary so that the convicted accused can get a benefit of the period suffered by him as detention during the trial and investigation being set off against period of 14 years mentioned in Section 433A
9. The Section 433A of the Code reads thus-
Section 433A:- Restriction on powers of remission or 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 punishment, provided by law, 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.
10. The learned Single Judge of this Court had an occasion to deal with following issues in this regard while delivering a judgment on 24th April, 2007 in the case of Balu Shankar Patil v. State of Maharashtra reported in 2007 (2) Bom. C.R. 228-
(i) Whether the proviso to Section 428 of the Code of Criminal Procedure added by the Code of Criminal Procedure (Amendment) Act, 2005 operate retrospectively?
(ii) Whether the benefit of the proviso to Section 428 of the Code of Criminal Procedure added by the Code of Criminal Procedure (Amendment) Act, 2005 can be given to the convicts who are already undergoing life imprisonment in implementation of conviction awarded prior to the coming into force of Code of Criminal Procedure Amendment Act, 2005
The learned Single Judge, while answering the aforesaid issues held thus-
In view of the question involved in the Boucher Pierse Andre, the said authority is aptly applicable to the question before this Court. Therefore, it must be held that a person, who was convicted and sentenced to imprisonment for life prior to the Amendment Act of 2005 will also be entitled to the benefit of said proviso. In view of the proviso of law discussed above, it will be clear that the proviso to Section 428 is ex post facto law with retrospective effect in the sense that benefit of this proviso will be available to a person, who was convicted and sentenced to imprisonment for life prior to this amendment and was actually undergoing the sentence on the date when this amendment came into force. Naturally benefit of this proviso could not be available to a person, who had already undergone complete sentence and was released.
We respectfully agree with this view of the learned Single Judge, which depicts the correct relevant position of law.
11. We hold that the legal position that emanates from the aforesaid discussions is as under-
(a) A person who is sentenced for life imprisonment is a person sentenced to 'imprisonment for a term' as contemplated under Section 428 of the Code of Criminal Procedure, and therefore, such a person is entitled to claim that the period of detention undergone by him during the investigation, inquiry or trial before the date of conviction shall be set off against the life imprisonment imposed upon him on conviction.
(b) The liability of such a person to undergo imprisonment for life has to be restricted to the remainder period only and that though such a person was convicted and sentenced to life imprisonment prior to 23rd June, 2006, such a person is entitled to claim benefit of provision of Section 428.
(c) Therefore, the period of detention of such person, prior to conviction, shall be set off against the period of fourteen years, referred to in Section 433A of the Code of Criminal Procedure.
12. In the light of the aforesaid view that we have taken, it is clear that the petitioner herein is also entitled to claim set off, contemplated by Section 428 of the Code, though the petitioner is a life convict and though the petitioner was so convicted and sentenced to life imprisonment on 20th October, 1993 i.e. before 23rd June, 2006 (the day on which the aforesaid proviso came to be inserted into the Section 428 of the Code).
13. But for the aforesaid specific order of the Sessions Court convicting the petitioner by specifically ordering 'no set off is given under Section 428 of Criminal Procedure Code' (which is emphasised by us hereinabove), there was no impediment whatsoever in granting the petitioner set off under Section 428 of the Code. In this case, the whole problem has arisen (which we have referred hereinabove, as 'a cause of action' for delivering this judgment) because of the aforesaid portion of the order of the Sessions Court. This problem is aggravated by indirect confirmation of the aforesaid directions by the Division Bench of this Court, by its judgment and order dated 19th August, 1996 whereby Criminal Appeal No. 168 of 1994 filed by the petitioner was dismissed, especially even without considering the aforesaid emphasised portion of the order of the Sessions Judge in issue in this Writ Petition.
14. Therefore, the issue before us is:
Whether in spite of specific order of the Sessions Judge, directing that no set off be granted under Section 428 of the Code to the petitioner, which direction has not been interfered with in appeal by the High Court, the petitioner is entitled to claim set off under Section 428 r/w 433A of the Code of Criminal Procedure
15. We will have to consider the entire scheme of the Code for answering the aforesaid issue inasmuch as the jurisdiction of the Court and that of the State Government in respect of punishment imposed on a convict is concerned. In other words, we will have to analyse the scheme of the said Code in the context of sentence to be undergone by a convict from the point of view of judicial function as against an executive function.
16. In the aforesaid background a perusal of the said Code will demonstrate that it contains a separate Chapter bearing No. XXXII which deals with 'Execution, Suspension, Remission and Commutation of Sentence'. This chapter deals with various provisions relating to various aspects of sentences to be undergone by a convict, as the aforesaid title of the chapter itself indicates. This chapter contains the aforesaid two provisions discussed at some length hereinabove i.e. Sections 428 and 433A of the said Code. As aforesaid, these provisions deal with set off to which a convict is entitled to while undergoing sentence and remission as also commutation of such a sentence.
These and such other provisions contained in the aforfesaid Chapter XXXII demonstrate that the said Code confers exclusively on the State Government the power to remit a sentence as also power of commutation of such a sentence. The power to grant set off to a convict in terms of the provisions of the said Code contained in the aforesaid chapter XXXII also vests exclusively with the Executive Government.
17. The aforesaid discussion of the relevant aspects of the matter pertaining to grant of commutation and/or set off will show that power to commute a sentence as also to grant set off while calculating the total period of sentence is an executive power and not a judicial power as such. This power vests exclusively with the Executive Government and not with the Judiciary. In other words, it is not open for the judiciary to either grant or not to grant the set off as also either to commute or not to commute a sentence.
18. It is exclusively a judicial function to award appropriate punishment to a person who is found guilty of an offence but once such a punishment is awarded, the judicial function comes to an end. Only thereafter issues relating to execution, suspension, remission and commutation of such a sentence arise. These issues that arise subsequent to award of sentence fall in the executive function and not judicial function as such. We may draw support for our aforesaid conclusion from a Supreme Court judgement delivered in the case of Ashok Kumar v. Union of India reported in : 1991CriLJ2483 , the relevant portion of which reads thus:
This extract is taken from Ashok Kumar v. Union of India : 1991CriLJ2483 :11. The law governing suspension, remission and commutation of sentence is both statutory and constitutional. The stage for the exercise of this power generally speaking is post-judicial, i.e., after the judicial process has come to an end. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates in a judgment pronounced in accordance with law. After the judicial function thus ends the executive function of giving effect to the judicial verdict commences.
19. Thus, after concluding that it is not a judicial but it is a executive function of giving effect to a judicial verdict finding a person guilty and awarding him appropriate punishment therefor, if we now consider the aforesaid issue raised for our consideration in this case, it will become clear that at the time of delivery of the judgment holding the present petitioner guilty and awarding him life imprisonment, the Sessions Judge had no occasion to deal with the aspect of set off to be awarded to the petitioner and/or commutation of sentence so awarded to the petitioner. Same was the situation when this Court tried, entertained and decided (i.e. dismissed) the appeal of the petitioner.
20. When both the aforesaid judgments were delivered, firstly by the Sessions Judge and secondly by this Court, the Courts were fully justified in treating the punishment so awarded of imprisonment for life to the petitioner in treating it as a punishment for the whole of the remaining period of the petitioner's natural life. The following observations of the Supreme Court made in the judgment delivered in the case of Gopal Vinayak Godse v. State of Maharashtra reported in : 1961CriLJ736a supports our aforesaid contention.
This extract is taken from Gopal Vinayak Godse v. State of Maharashtra : 1961CriLJ736a 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. The Supreme Court has also made similar observations in the case of Zahid Hussain v. State of W.B. reported in : 2001CriLJ1692 as under:
This extract is taken from Zahid Hussein v. State of W.B. : 2001CriLJ1692 :
4. This Court after examining the provisions of Article 161 of the Constitution, CrPC and IPC has consistently held that a sentence of imprisonment for life does not automatically expire at the end of 20 years of imprisonment including remission, as a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or part of the sentence. (See Gopal Vinayak Godse v. State of Maharashtra; State of M.P. v. Ratan Singh; Sohan Lal v. Asha Ram3 and Bhagirath v. Delhi Admn.)
However, even in the Gopal Vinayak Godse's case (supra), the Supreme Court has observed as under:
This extract is taken from Gopal Vinayak Godse v. State of Maharashtra : 1961CriLJ736a
9. ...The Constitution as well as the Code of Criminal Procedure confer the power to remit a sentence on the executive Government and it is in its exclusive province. We cannot assume that the appropriate Government will not exercise its jurisdiction in a reasonable manner.
Similar are the observations made by the Supreme Court in the Case of Sambha Ji Krishna Ji v. State of Maharashtra reported in : 1974CriLJ302 which read thus:
This extract is taken from Sambha Ji Krishan Ji v. State of Maharashtra : 1974CriLJ302 , at page 197:As regards the third contention, the legal position is that a person sentenced to transportation for life may be detained in prison for life. Accordingly, this Court cannot interfere on the mere ground that if the period of remission claimed by him is taken into account, he is entitled to be released. It is for the Government to decide whether he should be given any remissions and whether he should be released earlier.
21. The aforesaid discussion of the relevant legal aspects of the matter thus shows that neither the judgment delivered by the Sessions Judge nor the one delivered by this Court in the appeal, can be read to mean that the petitioner cannot be granted set off to which he may otherwise be entitled to under the said Code. It was not for the judiciary to direct grant or otherwise of such a set off to the petitioner at that stage. It is exclusively within the domain of the Executive Government to take such a decision. Obviously, therefore, it is open for the Executive Government in terms of the aforesaid provisions of law and in the light of it's policy decisions reflected by relevant Government Resolutions and/or Circulars to decide the issue as to whether the petitioner is entitled to set off or not. In taking such a decision the aforesaid observations and/or order of the Sessions Judge or for that matter of this Court cannot be operate as an hurdle much less prohibition.
22. We, therefore, answer the aforesaid issue by holding that the petitioner is entitled to claim commutation of his sentence as also set off, if otherwise found entitled in law, in spite of specific orders of the Sessions Judge, which is confirmed in appeal by this Court, directing to the contrary.
23. In this petition what is impugned by the petitioner is the decision of the Executive Government not to grant such a set off to the petitioner under Section 428 of the Code only on the ground that the Sessions Judge had issued an order to the contrary which is confirmed in appeal by this Court. Thus, before us, what is questioned is the executive action of the State Government in refusing to grant set off to the petitioner under Section 428 of the said Code. We, therefore, hold, in the light of the aforesaid legal aspects of the matter, that the set off under Section 428 of the Code could not have been denied to the petitioner on the ground that the Sessions Judge has ordered accordingly, which order is confirmed by this Court in appeal and that in spite of such orders it is open for the State Government to grant such a set off to the petitioner. We may hasten to add that we have already held hereinabove that the petitioner is entitled to enjoy such a set off.
24. Another way of looking at the issue under consideration is that an occasion to try, entertain and decide the claim of a convict for set off under Section 428 of the Code will arise only when the imprisonment for life awarded to such a convict is to be commuted. Such an occasion obviously cannot arise when such a convict is being convicted and sentenced either by Sessions Judge or when sustainability of such conviction and sentence is being examined by the High Court in an appeal. In other words, an occasion to operate provisions of Section 428 r/w Section 433A of the Code arises only after the convict is convicted and not at the time when the convict is being convicted or being sentenced by a Court.
We may draw support in this regard from the observations made in paragraph 11 of the judgment delivered by the Supreme Court in the case of Bhagirath (supra), which reads thus- This extract is taken from Bhagirath v. Delhi Admn. : 1985CriLJ1179 :
11. ...The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under Section 432 or Section 433 of the Code. In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse3, imprisonment for the remainder of life.
Therefore, in our view for this additional reason as well, this aspect of the matter could neither have been considere1d by the Sessions Judge, nor by the Division Bench of this Court, while considering the question as to whether the petitioner be convicted or not and if to be convicted, what sentence be awarded to him. For this additional reason also we hold that the statutory benefit to be granted to the petitioner under Section 428 r/w Section 433A of the Code, cannot be taken away, simply because it was so ordered by the Sessions Judge, which order appears (as actually it is not) to have been confirmed in appeal unintentionally by the Division Bench of this Court.
25. Yet one more aspect of the matter also needs to be noted herein, viz. the purpose and object of beneficent provision contained in Section 428 of the Code. In this regard in the case of Bhagirath (supra) the Supreme Court observed thus-
This extract is taken from Bhagirath v. Delhi Admn. : 1985CriLJ1179 :15. We have also already answered the last of the reasons given in Kartar Singh1 that the question is not whether the beneficent provision contained in Section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude law's benevolence of its true and lasting content. Lastly, the view expressed by the Joint Committee in its Report does not yield to the inference that the 'mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life'. As we have indicated earlier, graver the crime, longer the sentence and, longer the sentence, greater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative.
26. In the light of the aforesaid discussion, we are also of the view that the petitioner is entitled to this benovalent provision, contained in Section 428 of the Code and the petitioner cannot be deprived of such a statutory compulsory benefit to be awarded to a convict, without an exception and/or discretion of the Court under Section 428 r/w Section 433A of the Code.
27. In view of the aforesaid factual and legal aspect of the matter, we allow this writ petition and hereby direct that the petitioner be granted the benefit of set off, to which he is entitled under Section 428 r/w Section 433A of the Code of Criminal Procedure.
28. The Superintendent, Central Prison Nashik road, Nashik is hereby directed to issue appropriate order in this regard within two weeks from the date of production of copy of this order with him. The learned APP is also hereby directed to forward a copy of this judgment to the petitioner forthwith and that the same be handed over to the petitioner by obtaining his written acknowledgment.
29. Rule is made absolute accordingly.