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1954 DIGILAW 253 (RAJ)

Arjun v. State Of Rajasthan

1954-11-16

BAPNA, RANAWAT

body1954
Ranawat, J.—This is an application by Arjun, son of Sarwan Mina, under Art. 226 of the Constitution of India and also under sec. 491 of the Code of Criminal Procedure. 2. The petitioner was convicted under sec.290 of the Jaipur Penal Code (corresponding to sec. 302 of the Indian Penal Code) by the Sessions Judge of Jaipur on 11th May, 1942, and sentenced to life imprisonment, which was described by the Sessions Judge as equivalent to 25 years rigorous imprisonment. The judgment of the Sessions Judge was confirmed by the then High Court of Jaipur on the 2nd December, 1942. 3. The case of the petitioner is that after taking into account the remissions awarded to him, he has already undergone a sentence of a little more than 20 years rigorous imprisonment, and according to the law then in force a sentence of life imprisonment passed by the court of the former Jaipur State has been held to be of 20 years rigorous imprisonment only, and that, he is, therefore, entitled to be released from jail. The jail authorities, it is said, are detaining him on the assumption of his sentence being of 25 years rigorous imprisonment as specified in the warrant of imprisonment by the Sessions Judge of Jaipur. 4. The Superintendent of Jail, Jodhpur, where the petitioner is undergoing his sentence has verified by his letter No. Jud/Pet/C.9887/-6308 dated 26th August, 1954, that the petitioner has undergone a sentence of 12 years 3 months and 20 days, and has earned a remission of 7 years 11 months 24 days, thus he has undergone a total sentence of 20 years 3 months and 14 days upto the date of the report. 5. The Deputy Government Advocate has raised a preliminary objection that this petition is not competent, as a petitioner had once before applied under sec. 491 Cr.P.C. and Art.226 of the Constitution of India, and his application was dismissed by this Court on the 7th January, 1952. 6. 5. The Deputy Government Advocate has raised a preliminary objection that this petition is not competent, as a petitioner had once before applied under sec. 491 Cr.P.C. and Art.226 of the Constitution of India, and his application was dismissed by this Court on the 7th January, 1952. 6. It may be noted here that the petitioner had moved this Court under Art. 226 of the Constitution of India on 15th November, 1951, previously, and his petition was dismissed on the ground that though a sentence of life imprisonment had been awarded to him, yet, as life imprisonment in this case had been described to be equal to a sentence of 25 years rigorous imprisonment by the court of the then Jaipur State, this Court was not competent to revise the sentence passed by the courts of the former Jaipur State, which had long before become final. After the decision in that case, doubts were entertained about the correctness of that decision in Chotia vs. The State (habeas corpus Application No. 36 of 1953), and a reference was made to a Full Bench, which was decided on the 29th of July, 1953, vide Chhotia vs. The State(l). It was observed that— "But Janardhan Reddys case (A.I.R. 1951 S.C. 217)did not specifically consider the other part, namely where the sentence is, on the face of it, excessive either because it is more than the law prescribed for the particular offence, or it is more than which the court of the grade which purported to pass the sentence could pass under the law as it was in force at the time the sentence was passed. These two types of cases appear to us to be clearly exceptions to the rule laid down in Janardhan Reddys case, and where the sentence is illegal on these grounds, it would, in our opinion; be open to the High Court, when dealing with an application for a writ of habeas corpus, whether under Art. 226 of the Constitution or sec. 491 of the Code of Criminal Procedure, to examine the legality of the sentence. We may say at once that it is not open to the High Court to substitute any sentence in place of the sentence passed by the court which has already become final. The High Court may, however do one of two things. 491 of the Code of Criminal Procedure, to examine the legality of the sentence. We may say at once that it is not open to the High Court to substitute any sentence in place of the sentence passed by the court which has already become final. The High Court may, however do one of two things. If the legal portion of the sentence has been served and only the illegal portion remains to be served, the High Court should order the release of the convict, but if the legal portion of the sentence has not been fully served and some part of it still remains to be served, the application must be dismissed leaving it to the prisoner to come again when the legal portion has been completely served." 7. The point whether successive applications can be moved under sec. 491 Cr.P.C. or Art.226 of the Constitution of India has come up before the High Courts in India, and it seems there is some divergence of opinion on this point. The Common Law practice in England is that successive applications can be made for a writ of habeas corpus to each one of the Judges of the High Court, though such an application cannot be made to the Judge who has already decided it. As regards India, their Lordships of the Privy Council in C.P. Matthen vs. District Magistrate, Trivndrum(2), have held that the English Common Law practice in filing successive application for a writ of habeas corpus is not applicable to India, where the making of such applications was governed by the provisions of sec. 491 Cr. P.C. The position has, however, altered after the coming into force of the Constitution of India by Art, 226, which invests the High Court in India with authority to issue writ or direction in the nature of the English Common Law Writs. In Mst. 491 Cr. P.C. The position has, however, altered after the coming into force of the Constitution of India by Art, 226, which invests the High Court in India with authority to issue writ or direction in the nature of the English Common Law Writs. In Mst. Haydari Begum vs. Jawad Ali Shah (3) it was held by the High Court of Allahabad that— "where an application under sec 491 is dismissed by a Judge of the High Court, a second application to the same effect and with the same object is expressly prohibited and is not maintainable by R.8, of Allahabad High Court Rules." It was further held in that case that the rules of English Common Law which governed the procedure relating to an application for writ of habeas corpus were not applicable to the exercise of the statutory power conferred upon the High Courts under sec. 491 Cr.P.C. in India. In a subsequent case. Satish Gopal Gurha vs. Rex (4)the view in the previous case referred to above was modified and it was held that dismissal of an application under sec. 491 would not bar a second application where the further detention of a person had become illegal by something that transpired after the first application was disposed of. In Malhari Ramaji Chikate vs. Emperor(5),it has been held by the High Court of Bombay that it is not open to a detenu to ask for a review of an order already made under sec. 491; in other words successive applications cannot be made for a writ of habeas corpus being barred by sec.369Cr.P.C. The learned Judge placed reliance on the decision of the first Allahabad case referred to above, which is based on Rule 8 of that Court, and the decision in Kishori Lal vs. Crown(6) which, it may be noted, has been dissented from by the East Punjab High Court in Ramji Lal vs. Rex(7), which is a Full Bench decision. In a later case, viz., I re Prahlad Krishna Kurne(8), the Bombay High Court has slightly modified its opinion by holding that under Art. 226 of the Constitution of India, Common Law writs could now be issued by a High Court, but at the same time it has been held that once an order is passed by the High Court on an application for issue of a writ of habeas corpus, successive applications cannot be entertained, sec. 369 Cr.P.C. being a bar to such petitions. In Haridas Damaji Awade vs. Provincial Government, C P. and Berar(9), it has been held by the High Court of Nagpur that an order passed under sec. 491 of the Code of Criminal Procedure is a judgment within the meaning of sec. 369, because it finally determines the legality or the propriety of the detention and the question whether the applicant is entitled to be released, and as such, cannot be altered or reviewed except to correct a clerical error. Successive applications under sec. 491 were, therefore held not to be entertainable. 8. It may be observed that in the present case after the decision was given in the previous application, the point whether this Court could examine the legality of a sentence passed by a court of the then Jaipur State, which had become final, was referred to a Full Bench, and it has since then been decided that this Court can examine the legality of such a sentence, Virtually, therefore, when the first petition was decided, this Court refused to go into the legality of the sentence passed against the petitioner on account of certain considerations which prevailed with the Court at that time. The opinion of this Court has since then been altered on account of the Full Bench decision, and now it is considered competent for this Court to go into the question of the legality of the sentence passed against the convict by the courts of the former Jaipur State, in spite of the fact that those orders had become final long before. There is, therefore, a new circumstance which has arisen in this case, and which supports the petitioner in his contention for making a second application for the same relief. 9. There is, therefore, a new circumstance which has arisen in this case, and which supports the petitioner in his contention for making a second application for the same relief. 9. Coming to the facts of the present case, it may be noted that in Chhotia vs. State (Habeas Corpus Application No 36 of 1953) it has been held by this Court that life imprisonment was equivalent to 20 years rigorous imprisonment according to the law of the former Jaipur State. The council resolution which purported to change the term of life imprisonment to 25 years rigorous imprisonment was not valid, and no change in fact was brought about in the law. Under sec. 220 of the Jaipur Penal Code a sentence of life imprisonment could be passed, which meant a sentence of 20 years rigorous imprisonment only. The Sessions Judge, therefore, could not legally pass a sentence of 25 years rigorous imprisonment under sec. 290 J. P. C. The sentence of 25 years rigorous imprisonment passed by the Sessions Judge of Jaipur and later confirmed by the Chief Court of Jaipur is obviously illegal. It should be treated a sentence of 20 years rigorous imprisonment only. In view of the principle laid down in the judgment of the Full Bench, when the legal portion of the sentence has been undergone by the convict, he should be ordered to be released. 10. We therefore, allow this petition, and order that the petitioner, be released at once, if not required in any other case.