DATTU CHIMANRAO MARATHA v. STATE — 1985 DIGILAW 237 (GUJ)

J. P. DESAI, J. ( 1 ) THE learned Additional Sessions Judge has sentenced the accused appellant to imprisonment for life for the offence of murder and there cannot be any quarrel with the sentence imposed by the learned trial Judge for the said offence but the 9earned trial Judge has given following directions while sentencing the accused to imprisonment for life for the offence punishable under sec. 302 I. P. C. "it is further directed that the sentence of imprisonment for life imposed on the accused shall last as long as the life of the accused lasts". The question is whether the learned trial Judge could have given such a direction while imposing the sentence of imprisonment for life for the offence of murder. ( 2 ) THE Supreme Court had an occasion to consider in the case of Gopal Vinayuk Godse v. State of Maharashtra A. I. R. 1961 S. C. 600 as to how long the prisoner has to remain in jail when he is sentenced to imprisonment for life. The Supreme Court held in that case that a prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the appropriate authority. It appears that the learned trial Judge has added the above words in his judgment in. view of this interpretation put by the Supreme Court. The interpretation put by the Supreme Court is binding on all concerned and that way so far as the interpretation of the said words is concerned no fault can be found with the interpretation made by the learned Additional Sessions Judge. But the Court has only to say that the prisoner is sentenced to imprisonment for life. The Court has not to interpret the said sentence while imposting the same. It is for the authorities concerned With the execution of the sentence to interpret as to what is meant by imprisonment for life. The Court has simply to say that the accused is sentenced to imprisonment for life. The ratio of the decision of the Supreme Court in the case of Gopal Vinayak Godse (supra) itself shows that unless the sentence of imprisonment for life is communicated or remitted by the appropriate authority under the provisions of sec. 55 I. P. C or the relevant provisions of the Criminal Procedure Code 1973 secs. The ratio of the decision of the Supreme Court in the case of Gopal Vinayak Godse (supra) itself shows that unless the sentence of imprisonment for life is communicated or remitted by the appropriate authority under the provisions of sec. 55 I. P. C or the relevant provisions of the Criminal Procedure Code 1973 secs. 432 and 433 of the Code a prisoner sentenced to life imprisonment is bound in law to serve the life tantrum in prison. Sec. 55 of I. P. C reads as under: In every case in which sentence of imprisonment for life shall have been passed the appropriate Government may without the consent of the offender commute the punishment for imprisonment of either description for a term not exceeding fourteen years". Sub-sec. (1) and sub-sec. (7) of sec. 432 of Criminal Procedure Cede 1973 ad as follows:" (1) When any person has been sentenced to punishment for an affiance the appropriate Government may at any time without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to Which he has been sentenced. (7) In this section and in sec. 433 the expression appropriate Government means - (a) in cases where the sentence is for an offence against or the order referred to in sub-sec. (6) is passed under any law relating to a matter to which the executive power of the Union extends the Central Government; (b) in other cases the Government of the State within which the offender 115 sentenced or the said order is passed". Clause (b) of sec. 433 of the said Code reads as follows:"the appropriate Government may without the consent of the person sentenced commute- (b) a sentence of imprisonment for life for imprisonment for a term not exceeding fourteen years or for fine:". Sec. 433a of the said Code reads as follows:" Notwithstanding anything contained in sec. 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 punishments provided by law or where a sentence of death imposed on a parson has been commuted under sec. 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". 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". The above provisions of the Indian Penal Code as well as the Criminal Pro cedure Code show that it is for the appropriate Government to consider whether the sentence. of imprisonment for life imposed by a Court of law should be computed or not and if so to what period. Sec. 433a of the Code of Criminal procedure places a restriction upon the powers so as not to commute the sentence in such a way that the prisoner toes out of the prison before serving 14 years of imprisonment. But the fact remains that the power is vested in the appropriate Government to consider the question whether the sentence should be commuted or not Sec. 432 (1) appropriate Government to remit the whole or any part of the punishment while sec 433 (b) empowers the appropriate Government to commute the sentence". ( 3 ) ARTICLE 72 of the Constitution of india vests in the president of india power to grant pardons reprieves respites or remission all punishment or commute the sentence while Article 161 of the Constitution vests in the Governor of a state such power. The power is thus vested in the President or the Governor as the case may be to remit or commute the sentence of imprisonment. The Court cannot by giving directions as done by the learned trial Judge in the present case take away the powers of the President the Governor or the appropriate Government which powers are vested in the above authorities by the provisions of the Constitution of India. the Code of criminal Procedure 1973 and the Indian Penal Code. The power being vested in the President the Governor and the appropriate Government to commute or remit the sentence the Court. naturally cannot direct the said authorities either to commute the sentence or to remit the sentence or any part thereof. The Supreme Court in the case of Gopal Vinayak Godse (supra) took took view that the question of remission and/or commutation is exclusively within the province of the appropriate Government. This shows that the Court cannot give any directions in the matter to the appropriate Government. The Supreme Court in the case of Gopal Vinayak Godse (supra) took took view that the question of remission and/or commutation is exclusively within the province of the appropriate Government. This shows that the Court cannot give any directions in the matter to the appropriate Government. ( 4 ) IN a very recent decision of the Supreme Court reported in Bhagirath v. Delhi Administration A. I. R. 1985 S C. 1050 the question arose as to whether a convict sentenced to imprisonment for life is entailed to set off the period of detention undergone as under trial prisoner as per sec. 428 of the Criminal Procedure Code 1973 We are not concerned in the present case with the question or set off taut the discussion made by the Supreme Court in the above case supports the view that at we are inclined to take viz. that it is within the exclusive province of the appropriate Government to commute a sentence of imprisonment for life for imprisonment for a term. While discussing the decision of the Supreme Court in Gopal Vinayak godse case (supra) at para. 11 the Supreme Court has observed that in till the absence of an order passed by an appropriate authority under sec. 432 or 433 of the Code. imprisonment for life would mean according to the rule in Gopal Vinayak Godses case. imprisonment for the remainder of life. The Supreme Court in the case of Kartar Singh v. State of Haryana A. I. R. 1982 S. C 1439 has taken the view that sec. 428 of the Code regarding set off is not applicable to convict sentenced to life imprisonment because the convict was not sentenced to imprisonment for a term. The Supreme Court in the case of Bhagirath v. Delhi Administra tion overruled the earlier decision the case of Kartar Singh (supra) and held that though the sentence of imprisonment for life is not a sentence for a term. the sentence would be for a term soon as powers are exercised by the appropriate Government under sec. 432 or 433 of the Criminal Procedure Code. The Supreme Court held that after the powers are exercised by the appropriate Government either under sec. 432 or 433 of the Code the convict will be entitled to set off under sec. 428 of the Code. 432 or 433 of the Criminal Procedure Code. The Supreme Court held that after the powers are exercised by the appropriate Government either under sec. 432 or 433 of the Code the convict will be entitled to set off under sec. 428 of the Code. The Supreme Court while allowing the appeal and the writ petition directed that the period of detention undergone by the two accused as under trial prisoners shall be set off against the sentence of life imprisonment imposed upon theme subject to the provision contained in sec. 433a are provided that orders have. been passed by the appropriate authority under sec. 432 or sec. 433 of the Criminal P. C. This final order passed by the Supreme Court in the above case clearly shows that it was within the exclusive province of the appropriate Government to exercise powers vested under sec. 432 or 433 of the Code and that the Court cannot give any directions to he said authority to exercise the powers either under sec. 432 or sec. 433 of he Code. This is clear from the clarification made by the Supreme Court that the set off shall be given provided that orders were passed by the appropriate authority under sec. 432 or sec. 433 of the Code of Criminal Procedure. This clearly shows that it was left to the appropriate Government to pass orders under sec. 432 or sec. 433 of the Code of Criminal Procedure if they were not passed. ( 5 ) THE discussion made above goes to show that it is within the exclusive province of the appropriate Government to remit or commute the sentence of life imprisonment to a term subject of course to the limitations imposed by sec. 433 and 433a of the Code. If the Court cannot give any directions to the appropriate Government either to remit or commute a sentence under sec. 432 or sec. 433 of the Code it follows that the Court cannot also give any directions whatsoever which might come in the way of the appropriate Government exercising the powers under sec. 432 or sec. 433 of the Code. It is to be left to the appropriate Government to remit or commute the sentence of a convict without living any directions one way or the other. 432 or sec. 433 of the Code. It is to be left to the appropriate Government to remit or commute the sentence of a convict without living any directions one way or the other. It is true that the Court may recommend to the appropriate Government to commute the sentence in a given case looking to the facts and circumstances of the case where it may not be permissible or the Court to award a sentence lesser than the one prescribed by the statute. But that is only a recommendation and not a direct on. If the Court feels that the sentence of imprisonment which can be remitted. or commuted by the appropriate Government and which is normally remitted or competed by the appropriate Government will not meet the ends of justice in a given case the Court may impose the extreme Penalty of death provided by the Act. It cannot on one hand avoid awarding the extreme penalty of death provided by law and on the other give such directions which the Court cannot. If the case is rarest of the rare cases it may impose the penalty of death but cannot give any such directions as were given by the learned trial Judge in the present case. ( 6 ) THE discussion made above will go to show that while the sentence of imprisonment for life awarded by the learned trial Judge for the offense of murder should be confirmed the following directions given by the learned trial Judge therein should be struck off. "it is further directed that the sentence of imprisonment for life imposed on the accused shall last as long as the life of the accused lasts". .