# Pandit Kishori Lal v. King-Emperor, (r944) L.R. 72 I.A. r

- **Citation:** [1961] 3 S.C.R. 440
- **Court:** Supreme Court of India
- **Decided:** 1960-09-30
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. Subba Rao, K. N. w ANOHOO, J. R. Mudholkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pandit-kishori-lal-v-king-emperor-r944-l-r-72-i-a-r-2026
- **Pages:** 9

## Headnote

Habeas Corpus-Sentence-Transportation for life--:Imprisonc
ment for life, if equivalent to any fixed term-Remissions, right toWhen can be taken into consideration-Indian Penal Code, r86o
(XLV of r86o), s. 53A-Code of Criminal Procedure, r898 (V of
1898), s. 401.
The petitioner was convicted in r949 and sentenced to transportation for life.
He earned remission of 2963 days and adding
this to the term of imprisonment actually served by the petitioner
the aggregate exceeded 20 years. The petitioner contended that
his further detention in jail was illegal and prayed for being set
at liberty:
Held, that the petitioner had not yet acquired.any right to be
released. A sentence of transportation for life could be undergone
by a prisoner by way of rigorous imprisonment for life in a designated prison in India. Section 53A of the Indian Penal Code,
introduced by the Code of Criminal Procedure (Amendment) Act,
r955, provided that any person sentenced to transportation for
life before the Amendment Act would be treated as sentenced to
rigorous imprisonment for life.
A prisoner sentenced to life
imprisonment was bound to _ _serve the remainder of his life_ ill
prison unless the sentence was commuted or remitte.d by the
appropriate authority. Such a sentence could not be equated with
any fixed term. The rules framed under the Prisons Act entitled
such a prisoner to earn remissions but su-ch rernissions were to be
taken into account only towards the end of the term. The question of remissions was exclusively within the province of the
appropriate Government. In the present case though the Government had made certain remissions under s. 4or of the Code of
Criminal_Procedure, it had not remitted the entire sentence.
Pandit Kishori Lal v. King-Emperor, (r944) L.R. 72 I.A. r,
referred to.
ORIGINAL JURISDICTION:
Petition No. 305/1960.
Petition under Article 32 of the Constitution of
India for enforcement of Fundamental Rights.
Petitioner in person.
Fl. N.· Sanyal, Additional Solieilor-Gen~ral of India
and R. Fl. Dhebar, for the respondents.
3 S.C.R.
SUPREME COURT REPORTS
441
1961. January 12. The Judgment of the Court was
delivered by
SuBBA RAO, J.-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.
On February 10, 1949, the Judge, Special Court, Red
Fort, Delhi, convicted the petitioner for offences under
s. 3, read with s. 6, of the Explosive Substances Act,
under s. 4(b) and s. 5 thereof, and for murder under
s. 302, read with s. 109, of the Indian Penal Code; for
the first two offences he was sentenced to seven years'
rigorous imprisonment and five years' rigorous imprisonment respectively and for the third offence to transportation for life and all the sentences were directed
to run concurrently. After conviction he was imprisoned in jails in the State of Punjab till May 19, 1950,
and thereafter he was transferred to N asik Road
Central Prison in the State of Bombay (now Maharashtra). According to the petitioner, he has earned
the following remissions up to September 30, 1960:
(a) Ordinary remission
836 days
(b) Special re_mission
206 days
(c) Physical training remission
113 days
(d) Literary remission
108 days
(e) Annual good conduct remission
250 days
(f) Sta,te remission
1380 days
The total of the remissions earned is 2,893 days; but
the State in its counter-affidavit state that the petitioner has earned up to the said date remission of 2,963
days. The figure given by the State may be accepted
as correct for the purpose of this petition. If the
amount of remissions thus earned was added to the
term of imprisonment the petitioner has actually
served, the aggregate would exceed 20 years, and even
if only the State remission was added to it, it would
exceed 15 years. The petitioner, claiming that under
the relevant provisions governing his imprisonment
bis further detention in jail would be illegal, pr

## Text

Januayy Ia.
440
SUPR.EME COURT REPORTS
[1961]
GOP AL VIN AY AK GODSE
THE STATE OF MAHARASHTRA AND OTHERS;
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
. K. SUBBA RAO, K. N. w ANOHOO and.
J. R. MUDHOLKAR, JJ.)
Habeas Corpus-Sentence-Transportation for life--:Imprisonc
ment for life, if equivalent to any fixed term-Remissions, right toWhen can be taken into consideration-Indian Penal Code, r86o
(XLV of r86o), s. 53A-Code of Criminal Procedure, r898 (V of
1898), s. 401.
The petitioner was convicted in r949 and sentenced to transportation for life.
He earned remission of 2963 days and adding
this to the term of imprisonment actually served by the petitioner
the aggregate exceeded 20 years. The petitioner contended that
his further detention in jail was illegal and prayed for being set
at liberty:
Held, that the petitioner had not yet acquired.any right to be
released. A sentence of transportation for life could be undergone
by a prisoner by way of rigorous imprisonment for life in a designated prison in India. Section 53A of the Indian Penal Code,
introduced by the Code of Criminal Procedure (Amendment) Act,
r955, provided that any person sentenced to transportation for
life before the Amendment Act would be treated as sentenced to
rigorous imprisonment for life.
A prisoner sentenced to life
imprisonment was bound to _ _serve the remainder of his life_ ill
prison unless the sentence was commuted or remitte.d by the
appropriate authority. Such a sentence could not be equated with
any fixed term. The rules framed under the Prisons Act entitled
such a prisoner to earn remissions but su-ch rernissions were to be
taken into account only towards the end of the term. The question of remissions was exclusively within the province of the
appropriate Government. In the present case though the Government had made certain remissions under s. 4or of the Code of
Criminal_Procedure, it had not remitted the entire sentence.
Pandit Kishori Lal v. King-Emperor, (r944) L.R. 72 I.A. r,
referred to.
ORIGINAL JURISDICTION:
Petition No. 305/1960.
Petition under Article 32 of the Constitution of
India for enforcement of Fundamental Rights.
Petitioner in person.
Fl. N.· Sanyal, Additional Solieilor-Gen~ral of India
and R. Fl. Dhebar, for the respondents.
3 S.C.R.
SUPREME COURT REPORTS
441
1961. January 12. The Judgment of the Court was
delivered by
SuBBA RAO, J.-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.
On February 10, 1949, the Judge, Special Court, Red
Fort, Delhi, convicted the petitioner for offences under
s. 3, read with s. 6, of the Explosive Substances Act,
under s. 4(b) and s. 5 thereof, and for murder under
s. 302, read with s. 109, of the Indian Penal Code; for
the first two offences he was sentenced to seven years'
rigorous imprisonment and five years' rigorous imprisonment respectively and for the third offence to transportation for life and all the sentences were directed
to run concurrently. After conviction he was imprisoned in jails in the State of Punjab till May 19, 1950,
and thereafter he was transferred to N asik Road
Central Prison in the State of Bombay (now Maharashtra). According to the petitioner, he has earned
the following remissions up to September 30, 1960:
(a) Ordinary remission
836 days
(b) Special re_mission
206 days
(c) Physical training remission
113 days
(d) Literary remission
108 days
(e) Annual good conduct remission
250 days
(f) Sta,te remission
1380 days
The total of the remissions earned is 2,893 days; but
the State in its counter-affidavit state that the petitioner has earned up to the said date remission of 2,963
days. The figure given by the State may be accepted
as correct for the purpose of this petition. If the
amount of remissions thus earned was added to the
term of imprisonment the petitioner has actually
served, the aggregate would exceed 20 years, and even
if only the State remission was added to it, it would
exceed 15 years. The petitioner, claiming that under
the relevant provisions governing his imprisonment
bis further detention in jail would be illegal, prays
that he might be set at liberty forthwith. The State,
while conceding that he had earned remissions
56
Gopal' V inayak
Godse
v.
State bf
l1f aharashtra
Subba Rao].
I96I
Gopal V inayak
Godse
v.
State of
Maharashtra
Subba Rao].
442
SUPREME COURT REPORTS
[1961]
amounting to 2,963 days, alleged in the counter.
affidavit that the remissions earned did not entitle him
to be released and that under the rules the question of
his release would be considered only after he completed 15 years' actual imprisonment.
The petitioner argued his case in person. He rejected
the help of an advocate as amicus curiae to assist him.
In the circumstances, his argument was based more on
emotional plane than on legal basis. But as the liberty
of a citizen is involved, we have gone through the
relevant provisions and considered the possible contentions that. may be raised on the basis of the said
provisions.
The first question that falls to be decided is whether, under the relevant statutory provisions, au
accused who was sentenced to transportation for life,
could legally be imprisoned in cne 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 c01rnent 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
3 S.C.R.
SUPREME COURT REPORTS
443
State that the petitioner's sentence had not been
commuted under s. 55 of the Indian Penal Code or
under s. 402 {l) of the Code of Criminal Procedure to
oneofrigorous imprisonment. We have no reason for
not accE,pting this statement. On that basis, a question ari;es 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, th<> 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 tb e said Code reads :
"(l) .........
(2) In every casein 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 1mpnsonment for the same term."
(1) (194'!) L.R. 72 I.A. 1.
Go pal V inayak
Godse
v.
State of
Maharashtra
Subba Rao].
I96I
Gopal Vinayak
Godse
v.
State of
.. lf aharashlf'a
Suliba Rao.!
444
SUPREME COURT REPORTS
(1961)
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.
If so, the next question is whether there is any proviflion of law whereunder a sentence for life impri,onment, without any formal remission by appropriate
Government, oa n be automatically treated as one for a
definite period No such provision is found in the
Indian Penal Code, Code of Criminal Procedure or the
Prisons Act. Though the Government of India stated
before the .Judicial Committee in the case cited supra
that, having regard to s. 57 of the Indian Penal Code,
20 years' imprisonment was equivalent to a sentence
of transportation for life, the Judicial Committee did
not express its final opinion on that question. The
Judicial Committee observed in that case thus at p. 10:
" Assuming that the sentence is to be regarded as
one of twent.y years, and subject to remission for
good conduct, he had not earned remission sufficient
to entitle him to discharge at the time of his application, and it was therefore rightly dismissed, but in
saying this, their Lordships are not to be taken as
meaning that a life sentence must and in all cases be
treated as one of not more than twenty years, or
that the convict is necessarily entitled to remission."
Section 57 of the Indian Penal Code has no real
bearing 011 the question raised before us. For calculating fractions uf terms of punishment the section provides that transportation for life shall be regarded as
equivalent to imprisonment. for twenty years. It does
not say that transportation for life shall be deemed to
be transportation for twenty years for all purposes ;
nor does the amended section which substitutes the
words "imprisonment for life " for " transportation
for life" enable the drawing of any such all-embracing
fiction.
A sentenee of transportation for life or
3 s.c.R.
SUPREME COURT REPORTS
445
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.
It is said that the Bombay rules governing the
remission system substituted a definite period for life
imprisonment and, therefore, if the aggregate of the
term actually served exceeds the said period, the
person would be entitled to be released. To appreciate
this contention the relevant Bombay rules may be
read.
·
Release.
Rule 934. " In n,ll cases of premature
releases, orders under Section 401, Criminal Procedure Code, will have to b!) issued by Government
before·the prisoners can actually be released from
Jail."
R·ule 937. ( c) " When a life con vi ct or a prisoner
in whose case the State Government has passed an
order forbidding his release without reference to it,
has earned such remission as would entitle him to
relea"e but for the provisions of this .rule, the
Superintendent shall report accordingly to the State
Government through the Inspector-General in order
that his case may be considered with reference to
Section 401 of the Code of Criminal Procedure, 1898."
The Remission System: Rule 1419. (c) "A sentence
of transportation for life shall ordinarily be taken as
15 yea.rs' actual imprisonment."
Review of Sentences: Rule 1447. (2) "Notwithstanding anything contained in rule 1419 no prisoner
who has been sentenced to transportation for life or
inore than 14 years, imprisonment or to transportation and imprisonment or to transportation and
imprisonment for terms exceeding in the aggregate
14 years shall be released on completion of his term
of transportation or imprisonment or both, as the
case may be, including all remissions unless a report
with respect to such prisoner has beAn made under
sub-rule (l) and orders of Government have been
received thereon with regard to the date of his final
release."
It is common case that the said rules were ma.de
under the Prisons Act, 1894, and that they have
Gopal Vinayak
Godse
v.
StaJ1 of
M aharaslttra
Subba Rao].
Gopal V inayak
God'>t
v.
Sta'e of
Maharashtra
Subba Rao J.
446
SUPREME COURT REPORTS
[1961)
statutory force. But the Prisons Act does not confer
on any authority a power to commute
or remit
sentences; it provides only for the regulation of
prisons and for the treatment of prisoners confined
therein. Section 59 of the Prisons Act confers a power
on the State Government to make rules, inter alia, for
rewards for good conduct. Therefore, the rules made
under the Act should be construed within the scope of
the ambit of the Act. The rules, inter alia, provide
for three types of remissions by way of rewards for
good conduct, namely, (i) ordinary, (ii) special and
(iii) State. For the working out of the ,said remissions
under rule l419(c), transportation for life is ordinarily
to be taken as 15 years' actual impri~onment. The
rule cannot be construed as a statutory equation of
15 years' actual imprisonment for transportation for
life. The equation is only for a particular purpose,
namely, for the purpose of " remission system " a.nd
not for all purposes. The word " ordinarily" in the
rule also supports the said construction. The non
obstante clause in sub-rule (2) of rule 1447 reiterates
tha.t notwithstanding anything containAd in rule 1419
no prisoner ~ho has been sentenced to tra.nsporta.tion
for life shall be released on completion of his term
unless orders of Government have been received on a.
report submitted to it. This also indicates tha.t the
period of 15 years' a.ctua.l imprisonment specified in
the rule is only for the purpose of calculating the
remission and tha.t the completion of the term on that
ha.sis does not ipso faclo confer a.ny right upon the
prisoner to release. The order of Government contemplated in rule 1447 in the case of a. prisoner
sentenced to tra.nsporta.tion for life ca.n only be an
order under s. 401 of the Code of Criminal Procedure,
for in the ca.se of a. sentence of transportation for life
the release of the prisoner can legally be effected only
by remitting the entire ha.la.nee of the sentence. Rules
934 a.nd 937(c) provide for tha.t contingency. Under the
sa.id rules the orders of an a.ppropria.te Government
under s. 401, Criminal Pruceuure Code, a.re a. prerequisite for a. release. No other rule ha.s been brought
to our notice which confers a.u indefeasible right on a.
3 S.C.R.
SUPREME COUltT REPORTS
447
prisoner sentenced to transportation for life to an
unconditional release on the expiry of a particular
term including remissions. The rules under the Prisons
Act do not substitute a lesser sentence for a sentence
of transportation for life.
Briefly stated the legal position is this: Before Act
XXVI of 1955 a sentence of transportation for life
con Id be undergone by a prisoner by way of rigorous
imprisonment for life in a designated prison in India.
After the said Act, such a convict shall be dealt with
in the same manner as one sentenced to rigorous
imprisonment for the same term. Unless the said
sentence is commuted or remitted by appropriate
authority under the relevant provisions of the [ndian
Penal Code or the Code of Criminal Procedure, a
prisoner sentenced to life imprisonment is bound in law
to serve the life term in prison. The rules framed
under the Prisons Act enable such a prisoner to earn
remissions-ordinary, special and State-and the said
remissions will be given credit towards his term of
imprisonment. For the purpose of working out the
remissions the sentence of transportation for life is
ordinarily equated with a definite period, but it is
only for that particular purpose and not for any other
purpose.
As the sentence uf transportation for life or
its prison equivalent, the life imprisonment, is one of
indefinite duration, the remissions so earned do not
in practice help such a convict as it is not possible to
predicate the time of his death. That is why the
rules provide for a procedure to enable the appropriate Government to remit the sentence under s. 401
of the Code of Criminal Procedure on a consideration
of the relevant factors,
including the period of
remissions earned. The questiun of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the
appropriate Government made certain remissions
under s. 401 of the Code of Criminal Procedure, it did
not remit the entire sentence.
We, therefore, hold
that the petitioner has not yet acquired any right to
release,
Gopal Vinayak
Godse
v.
State of
Maharashb'a
Subba Rao .f.
Gopal Vinayak
Godse
v.
Stale of
lvf aharashtra
Subba Rao].
IQ6I
fj
-
·' January zz.
448
SUPREME COURT REPORTS
(1961]
The petitioner made an impassioned appeal to us
that if such a construction be accepted, he would be at
the mercy of the appropriate Government and that
the said Government, out of spite, might not remit the
balance of his sentence, with the result that he would
be deprived of the fruits of remissions earned by him
for sustained good conduct, useful service and evPn
donation of blood. 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. \Ve cannot assume that the
appropriate Government will not exercise its jurisdiction in a reasonable manner.
For the foregoing reasons we hold that the petitioner is under legal detention and the petition for
habeas corpus is not maintainable. The petition is
dismissed.
Petition dismissed.
RABIABAI
v.
THE CUSTODIAN-GENERAL OF EVACUEE
PROPERTY.
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. SUBB:. RAO, K. N. W ANCHOO and
J. R. MUDHOLKAR, JJ.)
Evacuee Properly-Sale before enactment of evacuee lawsConfirmation of sale-Vendor inteniling to defeat apprehended
evacuee .laws-Good faith, if lacking-Administration of Evacuee
Property Act, r950 (XXXI of r950). s. 40(4)(a).
M who had gone to Pakistan in 1947, sold his property in the
State of Madras to the appellant on August II, 1949. At that
time there was no legislation with respect to evacuee property in
Madras. On August 23, 1949, the Administration of EvacProperty (Chief Commissioners Provinces) Ordinance, 1949 (XII
of 1949), was extended to Madras. The appellant made an application for the confirmation of the sale. Subsequently, M was
declared an evacuee and the property as evacuee property. It
was found that M had entered into the transaction with the
object of evading the evacuee Jaw which it was apprehended,
would be extended to Madras. Consequently, confirmation of the
·sale was refused under s. 40(4)(a) of the Administration of Evacuee