State of Punjab & Ors Vs. Joginder Singh & Ors [1990] INSC 109 (23 March 1990)

Ahmadi, A.M. (J) Ahmadi, A.M. (J) Fathima Beevi, M. (J)

CITATION: 1990 AIR 1396 1990 SCR (2) 147 1990 SCC (2) 661 JT 1990 (2) 323 1990 SCALE (1)610

ACT:

Manual for the Superintendence and Management of Jails in Punjab.' Paragraphs 516-B and 631--Whether statutory in character-Interpretation of--Remission of sentence--Grant of--Powers and fetters.

Code of Criminal Procedure, 1973.' Sections 432, 433 and 433A-Sentence--Suspension, remission and commutation--Grant Punjab Jail Manual-Paragraphs 516B and 631--Interpretation of.

HEAD NOTE:

Paragraph 516-B of the Manual for the Superintendence and Management of Jails in Punjab provides for premature release of prisoners. The State Government had issued in- structions in 1971 modifying the executive instructions in paragraph 516B, to the effect that a convict must have undergone 8 1/2 years of substantive sentence before his case could be submitted to the Government for consideration.

Again there was another executive instruction in 1976 which provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment would not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment.

Paragraph 631 of the said Manual relates to remission of sentences. The note below paragraph 631 reproduces the gist of paragraph 516-B.

Going by the preface of the Manual, paragraph 631 has statutory force whereas paragraph 5 16B being in the nature of executive instruction has no statutory force.

The respondents filed Criminal Writ Petitions before the High Court praying for their premature release on the basis that the note under paragraph 631 has statutory force, the executive instructions issued in 1971 and 1976 have to be ignored and that the Jail Superintendent was bound to submit their cases to the Government for premature release.

148 The High Court allowed the claim of the respondents and held that the executive instructions issued in 1971 and 1976 being in conflict with the statutory note must give way to the latter.

These appeals, by special leave, preferred by the State Government challenge the High Court's decision on the ground that the source of paragraphs 516 and the note at the foot of paragraph 631 being the same, viz., resolution dated 6th September, 1905, it cannot be concluded that the note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and in case of conflict between the two, the note which is statutory in character must prevail.

Allowing the appeals, this Court,

HELD: 1. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Criminal Procedure Code or in exercise of constitutional power under Article 72/161 of the Constitu- tion. Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Constitution is in- voked. The power under Articles 72 and 161 of the Constitu- tion is absolute and cannot be lettered by any statutory provision such as Sections 432, 433 and 433A of the Code.

This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules. [153H; 154A-C]

2. Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences. If the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 Cr.P.C. , carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment. Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years. In the case of other 'lifers' the insistence under the 1971 amendment is that he should have a period of atleast 8-1/2 years of incarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code. Since Section 433A is prospective, so also 149 would be the 1971 and 1976 amendments. [154E-H] Gopal Vinayak Godse v. State of Maharashtra, [1961] 3 SCR 440 and Maru Ram v. Union of India, [1981] 1 SCR 1196, relied on.

3. According to the preface only those paragraphs which are blacklined have statutory character. The note in ques- tion is not so blacklined. The source of paragraph 516B and the note is the very same Resolution No. 159-167 of the Government of India dated 6th September, 1905. It is diffi- cult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in anoth- er. The marginal note to the Note in question in terms refers to paragraph 516-B which means it was merely a repro- duction of the latter paragraph. In the circumstances, if the note was intended to be conferred a statutory character, it would have been blacklined in keeping with the scheme of the Manual. Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g., 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison- ers. The note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, paragraph 5 16B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under paragraph 516B. It is, therefore, clear that the note is neither an integral part of paragraph 631; nor does it have statutory flavour as held by the High Court. [155B- F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 7 18-7 19/81 & 205-2 12, 2 13- 2 17 & 204 of 1990.

From the Judgments and Order dated 29.4.1981, 22.5.1981 & 29.4. 1981 of the Punjab and Haryana High Court in Crl. W.P. Nos. 38 & 46, 80-84, 86-88 & 40 of 1981.

R.S. Suri, Mr. Mohan Pandey and R.P. Singh for the Appel- lants.

S.Srinivasan and C.L. Sahu Amicus Curiae for the Respond- ents.

The Judgment of the Court was delivered by AHMADI, J. Special leave granted in all the above matters.

These appeals involve the interpretation of paragraphs 516-B and 631 of the Manual for the Superintendence and Management of 150 Jails in the Punjab. The preface to the Manual shows that those paragraphs of the Manual against which a black line appears are, in substance, either quotations from the law, or, from the Rules having the force of law, the authority having been indicted on the upper right hand margin of each paragraph whereas the paragraphs which have not been black- lined are executive instructions issued from time to time by the Government of India, or the Local Government or the Inspector-General with the sanction and approval of the Local Government. It may at once be mentioned that paragraph 5 16-B contained in Chapter XV entitled 'Release of Prison- ers' is not blacklined while paragraph 631 contained in Chapter XX entitled 'Remission System' is blacklined. The note in the upper right hand margin of paragraph 516B refers to G of I Resolution No. 159-167 dated 6th September, 1905 and P.G. No. 18608--Jails-dated 28th June, 1920. There is no dispute that this paragraph contains an executive instruc- tion only. Paragraph 631 contains a note on the upper right hand margin referring to the G of I Resolution No. 161-172 of 2nd May, 1908 and P.G. Letter No. 1669-S (Home) of 31st July, 1908. At the foot of paragraph 631 is a 'Note' in small type with a right hand marginal note See para 5 16B'.

While there can be no controversy that paragraph 631 which is blacklined has statutory force, the question is whether the Note at the foot thereof, which is not blacklined, also has statutory force.

Paragraph 5 16-B provides that the case of every con- victed prisoner (except females and males below 20 years at the date of the commission of the crime) sentenced to im- prisonment for life or imprisonment aggregating to over 14 years and who has undergone a period of detention in Jail amounting, together with remission earned, to 14 years, 'shall be' submitted to the State Government, through the Inspector General of Prisons, for orders. In the case of female prisoners or prisoners who were below 20 years on the date of commission of the crime, reference is required to be similarly made to the State Government on their completing a detention period of 10 years inclusive of remissions. Clause (v), however, provides that notwithstanding anything con- tained in the earlier part of the paragraph, a Superintend- ent of jail 'may', in his discretion, refer at any time, for the orders of the State Government, the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent's opinion be suitably commuted to a term of imprisonment. It would appear from a plain reading of this paragraph that in the case of a prisoner who has com- pleted 14 years of detention in jail. inclusive remissions earned, it is imperative on the part of the Superintendent of 151 the Jail to submit his case, through the I.G. of Prisons, to the State Government for consideration. The use of the words 'shall be submitted' bring out this intention when we con- trast them with the word 'may' and the words 'in his discre- tion' used in clause (v) thereto which begins with a non- obstante clause. Therefore, where the intention was to confer a mere discretion on the Superintendent of Jail, it was made manifest by the use of the expression 'may' fol- lowed by the words 'in his discretion' and where the inten- tion was to cast a duty to submit the case of the State Government, it was brought out by the word 'shall' preceding the words 'be submitted ..... for the orders of the State Government'. We have, therefore, no doubt in our minds that paragraph 5 16B, though an executive instruction, has been couched in language which clearly shows that in the former type of cases where the prisoner has completed 14 years of detention in jail, inclusive of remissions, his case must be referred to the State Government for consideration. Notwith- standing this limitation of completion of 14 years, clause (v) confers a discretion on the Superintendent of the jail to refer or submit the case of a prisoner to the State Government even before he has completed 14 years if in his opinion the case is fit for commuting the sentence.

Paragraph 631 is indisputably a statutory one as it is blacklined. But the blacklined portion of the paragraph merely defines certain expressions including the expression 'life convicts' which means a person whose sentence amounts to 20 years imprisonment. Then appears the Note which reads as follows:

"Note: The case of all life-convicts and of all prisoners sentenced to more than 14 years imprisonment or to transpor- tation and imprisonment for terms exceeding in the aggregate 14 years shall, when the term of imprisonment undergone, together with any remission earned under the rules amounts to 10 or 14 years, as the case may be, submitted for the orders of the Local Government in accordance with the in- structions contained in the Home Department Resolution No. 159-167 (Jails), dated the 6th September, 1905." (See para 516B) It will be seen that the note merely reproduces the gist of paragraph 5 16-B. Even the right side marginal note says 'see para 5 16-B' and is based on the same Resolution of 6th September, 1905 on which paragraph 5 16-B is based. The note is not blacklined as in the case of 152 the Note below paragraph 633. It was, therefore, urged that when paragraph 516-B is not blacklined, this note below.

paragraph 63 1, which too is not blacklined, can not be construed to be statutory in character merely because para- graph 631 incorporates a statutory rule.

Since the source of paragraph 5 16-B and the Note at the foot of paragraph 631 is the same, namely, the Resolution of 6th September, 1905, counsel for the State of Punjab submit- ted that the learned Judge in the High Court was not right in concluding that the Note being an integral part of the statutory rule incorporated in paragraph 631 must receive the same character and if there is a conflict between the two, the note which is statutory in character must prevail.

The difficulty arises because the State Government has issued instructions in 1971 which has the effect of modify- ing the executive instructions in paragraph 5 16-B, in that, it is now provided that a convict must have undergone 8-1/2 years of substantive sentence before his case for premature release can be submitted to the State Government for consid- eration. A further change was made by an executive instruc- tion issued in 1976 whereby it was provided that cases of convicts who were sentenced to death and whose sentences were subsequently commuted to life imprisonment will not be submitted to the State Government for consideration unless the convict has undergone atleast 14 years of substantive imprisonment. The High Court has taken the view that while paragraph 5 16-B would stand amended or modified by the subsequent executive instructions, the statutory rule con- tained in the Note below paragraph 631 cannot be touched by mere executive instructions and hence it still holds the field and the Superintendent for the jail is bound to submit the case to the State Government ignoring the change brought about by the executive instructions of 1971 and 1976. In other words, according to the High Court the executive instructions of 1971 and 1976 being in conflict with the statutory Note must give way to the latter.

Before we deal with the above question it may be advan- tageous to refer to Sections 432,433 and 433A of the Crimi- nal Procedure Code which have a bearing on the question of premature release. Section 432 confers on the appropriate Government the power to suspend the execution of the sen- tence or remit the whole or part of the sentence with or without conditions. Section 433 confers power on the appro- priate Government to commute

(a) a sentence of death for any other punishment provided under the Penal Code,

(b) a sen- tence of imprisonment for life, for imprisonment for a term not exceeding 14 years or 153 fine

(d) a sentence of simple imprison- ment for fine. Section 433A provides that where an offender is visited with a sentence of imprisonment for life for an offence for which death is one of the punishments or where a sentence of death is commuted under Section 433 into one of punishment for life, such persons shall not be released from prison unless he has served atleast 14 years of imprison- ment. It will thus seen that Section 432 and 433 confer powers of suspension, remission and commutation of sentences on the appropriate Government, an expression defined in Sub-section (7) of Section 432 of the Code.

In Gopal Vinayak Godse v. State of Maharashtra, [1961] 3 SCR 440, this Court held that a sentence of transportation for life or imprisonment for life must be treated as trans- portation or imprisonment for the whole of the remaining period of the convict's normal life, unless the said sen- tence is commuted or remitted by the appropriate Government.

Dealing with the Rules framed under the Prisons Act, 1894, this Court held that even though they were statutory in character they did not confer an indefeasible right on a prisoner sentenced to transportation for life an uncondi- tional release on the expiry of a particular term including remissions. It held that the rules framed under the Prisons Act enabled a prisoner to earn remissions-ordinary, special and State the said remissions were to be given credit to- wards his term of imprisonment and for the purpose of work- ing out the remissions the sentence of transportation for life was equated with a definite period, but it is only for the particular purpose and not for any other purpose. Lastly it observed that the question of remission was exclusively within the province of the appropriate Government.

In Maru Ram v. Union of India, [1981] 1 SCR 1196 this Court repelled the challenge to Section 433A both on the question of competence of Parliament to enact the provision and its constitutional validity. While interpreting Sections 432,433 and 433A of the Code, this Court pointed out that wide powers or remission and commutation of sentences were conferred on the appropriate government but an exception was carved out for the extreme category of convicts who were sentenced to death but whose sentence had been commuted under Section 433 into one of imprisonment for life. Such a prisoner is not to be released unless he has served atleast 14 years of imprisonment. The Court refused to read down Section 433A to give overriding effect to the Remission Rules of the State. It categorically ruled that Remission Rules and like provisions stand excluded so far as 'lifers' punished for capital offences are concerned. Remissions by way of 154 reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Code or in exer- cise of constitutional power under Article 72/161 of the Constitution. Remission cannot detract from the quantum and quality of the Judicial sentence except to the extent per- mitted by Section 432 of the Code, subject of course to Section 433A, or where the clemency power under the Consti- tution is invoked. But while exercising the Constitutional power under Article 72/161, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers. The power under Article 72 and 161 of the Consti- tution is absolute and cannot be lettered by any statutory provision such as Sections 432,433 and 433A of the Code.

This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.

Now, paragraph 5 16-B requires that the case of every convict sentenced to imprisonment for life or imprisonment aggregating to more than 14 years and who has undergone a period of detention in jail amounting, together with remis- sion, to 14 years, shall be submitted to the State Govern- ment for orders. The State Government's instruction issued in 1971 provides that the convict must have undergone 8-1/2 years of substantive sentence before his case could be submitted to the Government. The other instruction issued in 1976 provides that the case of a convict who was sentenced to death and whose sentence was subsequently commuted to life imprisonment will not be submitted unless he has under- gone atleast 14 years of substantive imprisonment. Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences; if the sentences is of imprisonment for life. ordinarily the convict has to pass the remainder of his life in prison but remissions and commutations are granted in exercise of power under Sections 432 and 433 carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment. Even in such cases Section 433A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at- least 14 years. In the case of other 'lifers' the insistence under the 1971 amendment is that he should have a period of atleast 81/2 years of incarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433A of the Code. Since Section 433A is prospective, so also would be the 1971 and 1976 amendments.

155 But the High Court has come to the conclusion that Paragraph 5 16-B, as amended by the executive instructions of 1971 and 1976, cannot override the statutory rule con- tained in Paragraph 631 read with the note appended thereto.

Counsel for the State argued that the Note at the foot of Paragraph 631 merely reproduces Paragraph 5 16-B; the mar- ginal note thereto says to in no uncertain terms and, there- fore, the Note cannot be ascribed a statutory character. We think there is considerable force in this submission. In the first place it must be realised that according to the pref- ace only those paragraphs which are blacklined have statuto- ry character. The Note in question is not so blacklined.

Where the note is intended to be given statutory character it is blacklined, see the note at the foot of Paragraph 633.

Secondly the source of paragraph 5 16-B and the Note is the very same Resolution No. 159-167 of the Government of India dated 6th September, 1905. It is difficult to believe that the same resolution was intended to be a mere executive instruction in one part of the Manual and was intended to be conferred a statutory character in another part of the same Manual. Thirdly the marginal note to the Note in question in terms refers to Paragraph 5 16-B which means it was merely a reproduction of the latter paragraph. In the circumstances if the Note was intended to be conferred a statutory charac- ter, it would have been blacklined in keeping with the scheme of the Manual. These are clear indicators which support the submission of the learned counsel for the State.

Lastly Paragraph 631 classifies prisoners and fixes the duration of their sentences e.g. 20 years for life convicts and class 3 prisoners and 25 years for class 1 and 2 prison- ers. The Note at the foot of the paragraph is by way of a reminder that notwithstanding the duration fixed under the said rule, Paragraph 5 16-B requires that cases of such prisoners should be submitted on the expiry of the duration fixed under Paragraph 5 16-B. It, therefore, seems clear to us that the Note is neither an integral part of Paragraph 631 nor does it have statutory flavour as held by the High Court.

We, therefore, find it difficult to uphold the view taken by the High Court in this behalf. We may make it clear that Paragraph 516B insofar as it stands amended or modified by the 1971 and 1976 executive orders is prospective in character. We allow these appeals and set aside the judgment and Order of the High Court in each of these appeals.

G.N. Appeals allowed.