Judgement Appeal (No. 15 of 1944), by special leave in forma pauperis, against an order of a single judge of the High Court in the exercise of criminal jurisdiction (July 13, 1942) whereby the appellants application for a writ in the nature of habeas corpus under s. 491 of the Code of Criminal Procedure, 1898, was dismissed. The following facts are taken from the judgment of the Judicial Committee. 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 s. 121 of the Indian Penal Code, and of murder, contrary to s. 302. For those offences he was sentenced to transportation for life, which was the only sentence, other than death, which could be awarded for those 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 " authorizing the Punjab Government to deport terrorists " there." The Andamans was the only place outside the mainland of India to which convicts sentenced to transportation were sent, and it was not in dispute that that letter signified the intention of the Government not to transport the appellant overseas but to keep him imprisoned in India. In fact, he had ever since been kept in the Central Jail at Lahore, and had there been dealt with in the same manner as if sentenced to rigorous imprisonment. His sentence had never been commuted under s. 55 of the Penal Code, or s. 402, sub-s.1, of the Code of Criminal Procedure, to one of rigorous imprisonment. On July 1, 1942, 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 fourteen years but would not have exceeded twenty years. On July 1, 1942, 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 fourteen years but would not have exceeded twenty years. On that date he applied to the High Court at Lahore for an order in the nature of a habeas corpus under s. 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 July 13. 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 was conceded before the Board that that 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. 1944. Oct. 23, 24, 31; Nov. 1. Pritt K.C. and Handoo for the appellant. In a case like this the Crown ought to be able to show a positive statutory provision saying that if the Government thinks right, or if certain conditions are fulfilled, a person sentenced to a term of transportation may be dealt with as if he were a person sentenced to rigorous imprisonment. There is no such clear positive statutory provision. There is an interim one; there is a clear power to keep a transportation prisoner in imprisonment, rigorous or otherwise, whilst awaiting transportation s. 58 of the Indian Penal Code (By s. 58, Indian Penal Code—"In every case in which a sentence of transportation is passed, the offender, until he is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment, and shall be held to have been undergoing his sentence of transportation during the term of his imprisonment."). That section, however, and s.32 of the Prisoners Act, 1900, are concerned only with temporary and provisional arrangements in respect of the detention of persons sentenced to and awaiting transportation, and neither section authorizes the subjection to imprisonment for an indefinite period of persons who, like the appellant, are no longer "awaiting transportation." The Prisoners Act does not enlarge the rights of detention. Section 58 of the Penal Code can be read in two ways, (1.) he can be detained indefinitely until transported, so long as there is an intention to transport, and here there was not; (2.) even if s. 58 can apply indefinitely, if he is going to be dealt with in the same way as if sentenced to rigorous imprisonment it can only be for fourteen years. The section must be construed with reasonable strictness, and if there be any ambiguity it should be construed not on the basis of the convenience of the executive but in the interests of the liberty of the subject. There is power under s. 55 of the Penal Code to commute a sentence of transportation for life to rigorous imprisonment up to fourteen years, and a sentence of transportation for life can only be served in the Punjab if it has been, expressly or impliedly, commuted to one of rigorous imprisonment for a term not exceeding fourteen years. The appellants sentence has not been commuted, so there are only two possibilities; (1.) that at all times after August, 1932, since the possibility of transportation disappeared, the appellant has been unlawfully imprisoned, or (2.) his imprisonment must be taken to have been made lawful by the implied commutation of his sentence to one of rigorous imprisonment not exceeding fourteen years. The appellant has served a sentence of over fourteen years rigorous imprisonment, the longest sentence of imprisonment which can be inflicted on him. There was no power to sentence him to fourteen years rigorous imprisonment for any of the offences of which he was convicted. Rigorous imprisonment cannot be imposed on anybody for more than fourteen years, and the rate of transportation for life is the same thing as rigorous imprisonment for fourteen years. The Crown propose, without any right, to keep the appellant in prison for twenty years. They propose to inflict on him twenty years of a form of imprisonment to no part of which was he ever sentenced—six years more of that imprisonment than they could have imposed if the sentence had been commuted. They propose to inflict on him a sentence which could not have been imposed by the trial court, and one which no court in India has power to inflict on anybody for any offence in any circumstances. They propose to inflict on him a sentence which could not have been imposed by the trial court, and one which no court in India has power to inflict on anybody for any offence in any circumstances. If they can keep him in rigorous imprisonment for twenty years, they can do so for the whole of his life. It would be very undesirable that the Crown should be held to have that tremendous arbitrary power when it is not expressly conferred by any statute. The appellant is unlawfully imprisoned. With regard to remissions, it is submitted that remission is not a privilege or concession, but a right. The appellant is entitled to remission under para.647, sub-para.2, of Punjab Jail Manual. G. D. Roberts K.C. and Pringle for the respondent. In the circumstances the appellant could lawfully be held to serve in jail in the Punjab the sentence of transportation for life which was passed on him, and he has no right to claim commutation or implied commutation. In other words, fourteen years is not a significant period for him. The law requires a person serving a sentence of transportation in British India to be dealt with in the same manner as if sentenced to rigorous imprisonment. The attitude the Government of India takes is that having regard to s. 57 of the Indian Penal Code twenty years imprisonment is equivalent to a sentence of transportation for life. Section 55 of the Penal Code is permissive; the Government "may" commute. Under s. 58 of that Code a man can serve the whole of his transportation sentence in jail in British India. When s. 58 was enacted it was replacing a rule which had ben created for the serving of a sentence of transportation for life in the jail in Bengal or Alipore Beng. Reg. XIV of 1811; Beng. Reg. IX of 1813. If the object of s. 58 had been to cut down the right of a sentence of transportation being served in British India it would have said so in clear language. There is no definition of transportation. Section 368, sub-s.2, of the Code of Criminal Procedure says that " No sentence of transportation shall " specify the place to which the person sentenced is to be transported,” and then the subsequent Prisoners Act of 1900, in s. 32, says that the place in British India shall be named. There is no definition of transportation. Section 368, sub-s.2, of the Code of Criminal Procedure says that " No sentence of transportation shall " specify the place to which the person sentenced is to be transported,” and then the subsequent Prisoners Act of 1900, in s. 32, says that the place in British India shall be named. If there be any ambiguity as to the construction of s. 58 of the Penal Code, reliance is placed on the question of convenience. It is the policy of the Government of India to keep the worst type of criminal in India. This appellant was given the least sentence for the offences of which he was convicted, and that he should be released automatically after fourteen years, inclusive of remissions, would be a most inconvenient result. Pritt K.C. replied. Section 55 of the Penal Code would be unnecessary if s. 58 had the wide meaning for which the respondent contends. Looking at all the statutory provisions, and in the absence of any positive provision for treating a person who is sentenced to transportation for life as subject to indefinite imprisonment, the argument for the Crown must fail. Section 32 of the Prisoners Act, 1900, is entirely location, and nothing else—a machinery section; it cannot be read as enlarging the period of time in which a prisoner may be kept in that place beyond what s. 58 of the Penal Code says, still less can it be said to authorize the form or nature, of any particular imprisonment. Dec. 6. The judgment of their Lordships was delivered by LORD GODDARD, who stated the facts set out above and continued 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 fourteen years, it is the fact that in no case where rigorous imprisonment is prescribed as the punishment is the maximum term longer than fourteen years, and by a proviso to s. 35, sub-s. 2, of the latter Act, consecutive sentences of imprisonment cannot amount in the aggregate to more than fourteen years. So it can be said with truth that when the Penal Code enacts that an offence shall be punishable by rigorous imprisonment as the sentence it cannot exceed that period. So it can be said with truth that when the Penal 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 fourteen 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 twenty 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 twenty years. The appellants 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 fourteen 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 of the 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 appellants sentence never has been commuted. It is therefore necessary to examine the various statutory provisions dealing with the sentence of transportation. Section 53 of the Penal Code sets out six different punishments to which offenders are liable. The second of these is transportation, and the fourth imprisonment of two descriptions, rigorous and simple. As already stated, where the Penal Code prescribes transportation as the punishment, the sentence, with two exceptions, must be for life. Section 53 of the Penal Code sets out six different punishments to which offenders are liable. The second of these is transportation, and the fourth imprisonment of two descriptions, rigorous and simple. As already stated, where the Penal Code prescribes transportation as the punishment, the sentence, with two exceptions, must be for life. By s. 55, in every case in which a sentence of transportation for life shall have been passed, the Government of India, or the Government of the place within which the offender shall have been sentenced, may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years. Section 58 provides that in every case in which a sentence of transportation is passed, the offender, until he is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment, and shall be held to have been undergoing his sentence of transportation during the term of his imprisonment." Were these the only statutory provisions dealing with the matter, there would be much force in the argument that s. 58 should be read as providing merely for the temporary or transitory detention and treatment of an offender while arrangements were being made for his transportation beyond the seas. If the history of the sentence be examined there is no doubt that when first enacted transportation meant transportation beyond the seas. When framing the Penal Code the draftsmen undoubtedly intended this sentence to remain as one whereby those on whom it was passed should be sent overseas. This appears in the introduction to the Code, the author of which was Mr.—afterwards Lord—Macaulay, then Legal Member of Council, and a principal draftsman of the Act. The Code was drafted about 1836 but was not enacted until 1860, and at that time also the sentence involved the convict being sent out of India. In 1836 transportation was a common sentence in England for felony, and one reason for thinking that s. 58 was intended by the authors of the Code to provide only for temporary detention of prisoners awaiting transportation is that the English Act, 24 Geo. 4, c. 84, which consolidated the law of this country relating to transportation, contained a very similar provision. 4, c. 84, which consolidated the law of this country relating to transportation, contained a very similar provision. Shortly stated, that Act provided that the sentence should always be one of transportation or banishment beyond the seas; that places on land or vessels in the river (commonly called the hulks) should be appointed for the confinement of prisoners until they could be placed on a convict ship, and that until they could be removed to such places they were to be kept to hard labour in the common jail or house of correction, and the time spent there was to be counted towards their sentence. Opinions, however, on matters of penology change from time to time in all communities, and no one doubts the competency of the legislature to adopt and provide for new and enlightened methods in the treatment of prisoners and management of penal establishments, even if the result be to change entirely the character of the punishment from that which has hitherto prevailed. In England transportation beyond the seas ceased as a punishment in 1854. In India it is still part of the penal system, but Acts passed since the Penal Code have effected so radical a change in the law relating thereto that, whatever may have been the case in 1860, s. 58 can no longer be construed as providing only for the transitory detention of prisoners awaiting conveyance to a penal settlement outside India. A sentence of transportation no longer necessarily involves prisoners being sent overseas, or even beyond the provinces wherein they were convicted. The first provision to notice in this respect is s. 368, sub-s. 2, of the Code of Criminal Procedure, 1898, which enacts that no sentence of transportation shall specify the "place to which the person sentenced is to be transported." Then comes the Prisoners Act of 1900, as amended in 1903, which, in the opinion of their Lordships, is the decisive statute on the point. Section 29 in its amended form provides as follows— "(1.) The Governor-General in Council may by general or special order, provide for the removal of any person confined in a prison.... (b) Under, or in lieu of, a sentence of imprisonment or transportation....to any other prison in British India. Section 29 in its amended form provides as follows— "(1.) The Governor-General in Council may by general or special order, provide for the removal of any person confined in a prison.... (b) Under, or in lieu of, a sentence of imprisonment or transportation....to any other prison in British India. (2.) The Local Government and subject to its orders and under its control the Inspector-General of Prisons may in like manner provide for the removal of any person confined as aforesaid in a prison in the province to any other prison in the province." By s. 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 authorized 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. The effect of the concluding words of s. 32, sub-s.1, seems to be that if a prisoner has been actually transported and then is sentenced on a subsequent charge, he is to remain where he is and not be removed thence to a place within the province. The Central Jail at Lahore, in which the appellant is confined, is one of the prisons constituted as a place for the detention of transportation prisoners. These sections make it plain that when a sentence of transportation has been passed it is no longer necessarily a sentence of transportation beyond the seas. Nowhere is any obligation imposed on the Government either of India or of the Provinces to provide any places overseas for the reception of prisoners. It appears that for many years the only place to which they have been sent is the Andaman Islands, which are now in Japanese occupation. Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are, and are not, regarded as fit subjects for transportation thereto, and showing also that nowadays only such of those prisoners sentenced to transportation as may volunteer to undergo transportation overseas are sent to those islands. Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are, and are not, regarded as fit subjects for transportation thereto, and showing also that nowadays only such of those prisoners sentenced to transportation as may volunteer to undergo transportation overseas are sent to those islands. Learned commentators on the criminal law of India, in particular Lord Macaulay, in the introduction to the Penal Code, to which reference has already been made, have pointed out that a sentence of transportation is one likely to be regarded with particular terror by Hindoos, largely because of their dread of crossing " the black water,” the loss of caste which a journey overseas entails, and of the uncertainty whether they will ever see their homes again. No doubt, therefore, the sentence has been preserved for its deterrent effect and because in certain cases it may be both useful and desirable to send convicts to the islands. 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. A convict sent to penal servitude may nowadays serve his sentence either in a prison known as a convict establishment or in an ordinary local prison, and in the latter he will be subject to exactly the same discipline, conditions of labour and treatment generally as those sentenced to imprisonment. 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. The appellant was lawfully sentenced to transportation for life; at the time when he made his application to Monroe J. he was confined in a prison which had been appointed as a place to which prisoners so sentenced might be sent. The appellant was lawfully sentenced to transportation for life; at the time when he made his application to Monroe J. he was confined in a prison which had been appointed as a place to which prisoners so sentenced might be sent. Assuming that the sentence is to be regarded as one of twenty 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 in all cases be treated as one of not more than twenty years, or that the convict is necessarily entitled to remission. A further point was taken by Mr. Pritt on behalf of the appellant to which brief reference may be made although, in view of the opinion of their Lordships on the main question, it has now become immaterial. On the assumption that the sentence was to be regarded as one of not more than fourteen years rigorous imprisonment, he contended that taking into account the remission earned, the appellant would have been entitled to be discharged at the time when he made his application to the learned judge under sub-para. 2 of the Government of India Resolution No. 234-245 of July 12, 1910, and Provincial Government endorsement No. 236 of August 25, 1910, reproduced as para.647, sub-para.2, in the Punjab Jail Manual. In view of sub-para, IC the Board caused an inquiry to be made of the Punjab Government whether any order had been passed by them forbidding the prisoners release. In reply the Government referred to a letter of March 24, 1942, from the Deputy Secretary to the Government Home Department to the Inspector-General of Prisons, in which the former requested that the roll of the convict might be resubmitted for the further consideration and orders of Government in the first week of March, 1943. That is not an order under the paragraph to which reference has been made, and if the sentence had in law to be regarded as one of fourteen years rigorous imprisonment it appears to their Lordships that the prisoner would have been entitled to be discharged. That is not an order under the paragraph to which reference has been made, and if the sentence had in law to be regarded as one of fourteen years rigorous imprisonment it appears to their Lordships that the prisoner would have been entitled to be discharged. But, for the reasons given, their Lordships are of the opinion that at that time he was in lawful custody, and still is, and they will humbly advise His Majesty that this appeal should be dismissed.