Y. Dass v. State — 1989 DIGILAW 468 (MAD)

Judgment Y. Dass son of Yasu - petitioner No.1 and G.Ananda Raj, son of Gangaiah - petitioner No.2 sent the petition through the Senior Superintendent, Central Prison, Bangalore to the Hon’ble Chief Justice with a prayer to admit the petition as writ petition and direct the State Government to release them from the prison contending that they were entitled to premature release. The petition was registered as a writ petition and Rule nisi was issued to the Respondent (State) by the order dated 13.4.1989. The return is filed by the respondent in the form of an affidavit of the Senior Superintendent, Central Prison, Bangalore. 2. The record is perused. The learned counsel for the petitioners and Sri S.S.Koti, the learned High Court Government Pleader for the respondent, are heard. 3. The facts relevant to dispose of the writ petition are these: Y.Dass (petitioner No.1) and G.Anand Raj (petitioner No.2) were accused No.10 and accused 5 respectively in Sessions Case No.16 of 1978 on the file of the Sessions Judge, Kolar. Petitioners Nos.1 and 2 were tried along with 8 others of the various offences including the offences punishable under Secs.148, 302, 326 read with Sec.34/149 of the Indian Penal Code. The learned trial Judge by the judgment and order dated 13.12.1979, convicted G.Ananda Raj (petitioner No.2) along with 5 others arranged as A1 to A4 and A6 for the offence punishable under Sec.148 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for two years. Petitioner No.1 was convicted along with 7 others arraigned, as A3 to A9 for the offence punishable under Sec.326 read with Sec.149 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a period of five years. He was also convicted along with two of his companions arraigned as A3 and A4 for the offence punishable under Sec.326 read with Sec.34 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a period of one year. Petitioner No.2 was convicted for the offence punishable under Sec.324 read with Sec.34 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a period of one year. We are not concerned here with the particulars of the convictions entered and sentences imposed on other 8 persons who were tried of the offences along with these two petitioners. We are not concerned here with the particulars of the convictions entered and sentences imposed on other 8 persons who were tried of the offences along with these two petitioners. These two petitioners and 8 persons arraigned with them as co-accused preferred an appeal to this Court in Criminal Appeal No.120 of 1979. The respondent (State) being dissatisfied with the judgment and order of the learned trial Judge acquitting petitioner No.1 and petitioner No.2 and four others arraigned as A6, A7, A8 and A9 of the offence punishable under Sec.302 read with Sec.149 of the Indian Penal Code, sought leave to present an appeal against the same and on leave being granted, the appeal preferred by the State was registered in Criminal Appeal No.279 of 1979. There was also an appeal filed by the State in Criminal Appeal No.280 of 1979 for enhancement of the Life Imprisonment imposed on Ashokan and Vijayan arraigned as A3 and A4 respectively in the Sessions Case to that of death. Persons arraigned as A1 and A2 had been convicted for the offence punishable under Sec.302 read with Sec.34 of the Indian Penal Code on two counts and had been sentenced to death. There was a reference made by the learned trial Judge under Sec.306 of the Code of Criminal Procedure (‘the Code’ for short), for confirmation of the death sentences imposed on persons arraigned as A1 and A2, registered in Criminal Referred Case No.2 of 1979. A Division Bench of this Court heard Criminal Appeals Nos.120, 279 and 280 of 1979 along with Criminal Referred Case No.2 of 1979 and by the judgment and order dated 18.8.1980 disposed of the aforesaid three Criminal Appeals and the Criminal Referred Case. The Division Bench rejected the Reference allowed Criminal Appeal No.120 of 1979, in part set aside the conviction of A1 and A2 under Sec.302 read with Sec.34 and convicted them (A1 and A2) under Sec.302 read with Sec.149 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life. The Division Bench rejected the Reference allowed Criminal Appeal No.120 of 1979, in part set aside the conviction of A1 and A2 under Sec.302 read with Sec.34 and convicted them (A1 and A2) under Sec.302 read with Sec.149 of the Indian Penal Code and sentenced each of them to suffer imprisonment for life. The Division Bench allowed the appeal preferred by the State in Criminal Appeal No.270 of 1979 and convicted petitioner No.2 and petitioner No.1 and their four companions arraigned as A6, A7, A8 and A9 for the offence punishable under Sec.302 read with Sec.149 for having caused the murders of three deceased persons and sentenced each of the petitioners and four others to undergo imprisonment for life. The conviction of A3 and A4 for the offence punishable under Sec302 read with Sec.34 was set aside and instead they were convicted for the said offence read with Sec.149 and the sentences of Life Imprisonment imposed on them were maintained. The Criminal Appeal No.280 of 1979, the appeal preferred by the State for enhancement of sentence of Life Imprisonment imposed on A3 and A4 to death was dismissed. Persons in the array not convicted by the trial Court in respect of the assaults caused on the persons of two witnesses examined as P.Ws.1 and 7 were convicted for the offences punishable under Secs.326 and 324 read with Sec.149 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for five years and one year respectively. The convictions of petitioner No.1 under Sec.326 on two counts for having caused grievous hurt to two witnesses were ordered to be deleted. The offences which were tried, were in respect of an occurrence that happened on 1.2.1978 at about 7.30 P.M., in Bazar Street, Ashok Nagar, Kolar Gold Field about a mile away from Robertsonpet Police Station. In the occurrence, three persons namely, Balaram, Manoharan and Parasuraman were done to death and two persons were injured. 4. It was submitted by both the sides that during the course of investigation, petitioner No.1 came to be arrested on 9.7.1978 and petitioner No.2 was arrested on 27.2.1978. The trial Court rendered judgment on 13.2.1979 and this Court (the Appellate Court) rendered the judgment on 18.8.1980). 5. 4. It was submitted by both the sides that during the course of investigation, petitioner No.1 came to be arrested on 9.7.1978 and petitioner No.2 was arrested on 27.2.1978. The trial Court rendered judgment on 13.2.1979 and this Court (the Appellate Court) rendered the judgment on 18.8.1980). 5. Before we proceed further, it appears necessary to decide the date on which it can be said that petitioners Nos.1 and 2 were convicted of the offence punishable under Sec.302 on three counts with the aid of Sec.149 of the Indian Penal Code. Sec.433-A entered Chapter XXXII of the Code and came into force with effect from 18.12.1978. Petitioners Nos.1 and 2 had been acquitted in the trial Court of the offences of murders and were convicted in the appeal. 6. It is by now well settled by the law pronounced by the judgment of the Supreme Court in Mam Ram v. Union of India, A.I.R. 1980 S.C. 2147:1980 Crl.L.J. 1440, that when a person is convicted in appeal, it follows that the Appellate Court has exercised its power in the place of the original Court and the guilt conviction and sentence must be substituted for and shall have retroactive effect from the date of the judgment of the trial Court. The appellate convictions substitute the verdict of the trial Court. An appeal is continuation of an Appellate Court judgment as a replacement of the original judgment. In that view of the matter, the convictions of petitioners Nos.1 and 2 by this Court (the Appellate Court) must dated back to 13.2.1979, the date of the trial Court’s verdict. 7. For the reasons aforesaid, the date to be taken which would be material and relevant would be 13.2.1979, the date on which the trial Court gave its verdict. Obviously, that is the date after December 18, 1978, the date on which Sec.433-A came into force. 8. 7. For the reasons aforesaid, the date to be taken which would be material and relevant would be 13.2.1979, the date on which the trial Court gave its verdict. Obviously, that is the date after December 18, 1978, the date on which Sec.433-A came into force. 8. Sri S.Shankarappa, the learned counsel for petitioners Nos.1 and 2 submitted that the occurrence, in which three persons were murdered and two were injured, happened on 1.2.1978 though petitioners Nos.1 and 2 were convicted and sentenced on 13.2.1979; that petitioners Nos.1 and 2 were not responsible in any manner for the delay in the conclusion of the trial of the offences; and that, therefore, the case of petitioners Nos.1 and 2 should be considered in the background of the law that prevailed as on 1.2.1978 and not in accordance with the law that was in force on 13.2.1979. In other words, what he submitted was that the question as to whether petitioners Nos.1 and 2 were entitled to release from the Prison should be examined without reference to the provisions contained in Sec.433-A of the Code after taking into account the pre-conviction detention of petitioners Nos.1 and 2 and the remissions earned by them after 13.2.1979. 9. In support of his submissions, the learned counsel relied on three decisions of the Supreme Court, namely, Rao Shiv Bahadur Singh v. State of Vindhya Pradesh, 1953S.C.R. 1188:1953 S.C.J. 563.A.I.R. 1953 S.C. 394:1953 Crl.L.J. 1480, Union of India v. Sukumar Pyne, A.I.R. 1966S.C. 1206:1966 Crl.L.J. 946: (1966)2 S.C.J. 227: (1966)2 S.C.R. 34 and State of Kamataka v. K.H.Annegowda, A.I.R. 1977 S.C. 357:1977 Crl.L.J. 220. 10. Having carefully examined the enunciations made by the Supreme Court in the aforesaid three decisions, it is difficult to hold that the enunciations have application to the case of petitioners Nos.1 and 2. 11. In the case of Rao Shiv Bahadur Singh, A.I.R. 1953 S.C. 394: 1953 Crl.L.J. 1480, the Supreme Court had an occasion to consider the objections raised, placing reliance on Art.20 of the Constitution. 12. 11. In the case of Rao Shiv Bahadur Singh, A.I.R. 1953 S.C. 394: 1953 Crl.L.J. 1480, the Supreme Court had an occasion to consider the objections raised, placing reliance on Art.20 of the Constitution. 12. Art.20(1) of the Constitution is as follows: "No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." 13. This article prohibits convictions and sentences under ex post facto laws. The principle underlying the prohibition of the kind mentioned in Art.20(1) has been elaborately discussed and pointed out in the well known case of Phillips v. Eyre, (1870)6 Q.B. 1 at pp.23 and 25 and the Supreme Court of United States of America in Colder v. Bull, (1798)3 Dallas 386:1 Law Ed. 648 at p.649. In Phillips v. Eyre, (19870)6 Q.B. 1, it is explained that expost facto laws which voided and punished what had been lawful when done. The paramount importance of the principles is that such ex post facto laws which retrospectively create offences and punish them have been universally held as had being highly inequitable and unjust. In the English system of jurisprudence repugnance of such laws to universal notions of fairness and justice is treated as a ground not for invalidating the law itself, but as compelling a beneficient construction thereof where the language of the statute by any means permits it. In the American system of jurisprudence, such ex post facto laws are themselves rendered invalid by virtue of Art.1, Secs.9 and 10 of its Constitution. 14. The Supreme Court in the case of Rao Shiv Bahadur Singh v.. State of Vindhya Pradesh, 1953 S.C.R. 1188: 1953 S.C.J. 563.A.I.R. 1953 S.C. 394: 1953 Crl.L.J. 1480, dealing with the objections raised after referring to the broad import of Art.20(1) of the Constitution and the decisions in Phillips v. Eyre, (1870)6 Q.B. 1, and Colder v. Bull, 1 Law Ed. State of Vindhya Pradesh, 1953 S.C.R. 1188: 1953 S.C.J. 563.A.I.R. 1953 S.C. 394: 1953 Crl.L.J. 1480, dealing with the objections raised after referring to the broad import of Art.20(1) of the Constitution and the decisions in Phillips v. Eyre, (1870)6 Q.B. 1, and Colder v. Bull, 1 Law Ed. 648: (1798)3 Dallas 386, ruled on the scope and object of Art.20(1) of the Constitution and observed as under: "(9) In this context it is necessary to notice that what is prohibited under Art.20 is only conviction or sentence under an ‘ex post facto’ law and not the trial thereof. Such trial under a procedure different from what obtained at the time of commission of the offence or by a Court different from that which had competence at the time cannot ‘ipso facto’ be held to be unconstitutional. A person accused of the commission of an offence has no fundamental right to trial by a particular Court or by a particular procedure, expect in so far as any constitutional objection by way of discrimination or the violation of any other fundamental right may be involved". 15. In the case on hand, petitioners Nos.1 and 2 were tried for the offences of murder punishable under Sec.302 of the Penal Code in respect of the murders that took place on 1.2.1978 by the competent Court in accordance with the provisions contained in the Code. They were convicted of the offences of murder and were sentenced to imprisonment for life on 13.2.1979. The punishment provided for the offence of murder on 1.2.1978 was death or imprisonment for Life and Fine. In this view of the matter, in my considered view, Petitioners Nos.1 and 2 cannot derive any assistance from the enunications made by the Supreme Court in the case of Rao Shiv Bahadur Singh, A.I.R. 1953 S.C.394:1953 Crl.L.J. 1480, to contend the in view of the date of occurrence, the case should be considered without reference to Sec.433-A of the Code. 16. 16. In the case of Union of India v. Sukumar Pyne, A.I.R. 1966S.C. 1206:1966 Crl.L.J. 946, following the recovery in 1954 of some foreign currency and travellers cheques at No.311, Bow Bazar Street, Calcutta, where the respondent therein along with his mother and brother and carried the business of jewellers, the Director of Enforcement had issued on April 23, 1958 on the petitioner calling upon him to show cause within 10 days of the receipt of the notice why adjudication proceedings should not be held against him for contravention of Sec.23(1) of the Foreign Exchange Regulation Act, 1947 (‘the Act of 1947 for short). On May 10, 1958, the respondent had replied to the notice giving his version as to how he had come into possession of the foreign currency, but had denied having sold any Travellers Cheques. He had prayed that the proceedings may be dropped and the currency seized returned to him. The Director after considering the cause shown by the respondent had come to the conclusion that the adjudication proceedings should be held. He had, therefore, requested the respondent to arrange to be present either personally or his authorised representative before the Director on May 13, 1958 in the Office of the Calcutta Branch of the Directorate. On May 13, 1958, the respondent had filed a petition under Art.226 of the Constitution, challenging the adjudication proceedings on various grounds, the principal ground being Sec.23(1)(a) and Sec. 23-D of the Act of 1947 were ultra vires of Art.20(2)of the Constitution and that the offence having been committed in 1954, the proposed adjudication was illegal and entirely without jurisdiction. The High Court had held that Sec.23(1)(a) of the Act of 1947 violated Art. 14 of the Constitution and was ultra vires the Constitution. It had also held that the relative provision of Sec.23-D must also be condemned. The High Court had come to the conclusion that the petitioner had a vested right to be tried by an ordinary Court of the land with such rights of appeal as were open to all and although Sec.23(1)(a) substituted by the Amending Act XXXIX of 1957 was procedural, since a vested right had been affected prima facie, it was not a question of procedure. On the basis of this reasoning the High Court had come to the conclusion that the provision as to adjudication by the Director could not have any retrospective operation. The learned Judge who had disposed of the writ petition had observed that the impairment of a right by putting a new restriction thereupon is not a matter of procedure only and that it impairs the substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment. Accordingly, the adjudication proceedings had been quashed as being without jurisdiction. 17. The Supreme Court following its earlier decision in Shanti Prasad Jain v. Director of Enforcement, (1963)2 S.C.R. 297 : A.I.R. 1962 S.C. 1764, held that Sec.23(1) and Sec.23-D of the Act of 1947 did not violate Art.14 of the Constitution. The Supreme Court after comparing Sec.23(1) as it stood before its amendment by Act XXXIX of 1957 with that Section after amendment, held that the effect of the amendment of Sec.23(1) and the addition of Sec.23-D by the amendment was that after the amendment, adjudication proceedings or criminal proceedings could be taken up in respect of contravention mentioned in Sec.23(1) while before the amendments only criminal proceedings before a Court could be instituted to punish the offender. The Supreme Court quoting the view taken in the case of Rao Shiv Bahadur Singh, A.I.R. 1953 S.C. 394:1953 Crl.L.J. 480, held that the general principle that alterations in procedure are retrospective unless there be some good reason against it was attracted to the case and that principle underlying Art.20 of the Constitution, would not constitute a good reason to hold that alterations in procedure brought about by Sec.23(1)(a) and Sec.23-D by Act XXXIX of 1957 were prospective in nature. Negativing the contention urged on behalf of the respondent on the basis of the principle of Art.20 of the Constitution that a substantive vested right to be tried by an ordinary Court existed in favour of the respondent before the amendment, the Supreme Court held that no person has a vested right in any course of procedure and that the said ordinary rule should prevail in the case before it. The Supreme Court also held that the principle underlying Art.20 of the Constitution does not make a right to any course of procedure a vested right. The Supreme Court also held that the principle underlying Art.20 of the Constitution does not make a right to any course of procedure a vested right. Interpretating Sec.23(1) as substituted by Act XXXIX of 1957, the Supreme Court held that there was no breach of Art.20 of the Constitution. The appeal by the Union of India was accepted with costs there and in the High Court and the petition filed by the respondent under Art.226 was dismissed. 18. In the case on hand, there is no question of alteration in procedure. Petitioners Nos.1 and 2 were tried of the offences in accordance with the procedure that held the field on 1.2.1978 and which was in force during the trial of the offences. Hence, I am firm in my mind that the enunications made by the Supreme Court in the case of Union of India v. Sukumar Pyne, A.I.R. 1/966 S.C. 1206:1966 Crl.L.J. 946, have no application to the facts of the case of petitioners Nos.1 and 2. 19. In the case of State of Kerala v. K.H.Annegowda, A.I.R. 1977 S.C. 357:1977 Crl.L.J. 220, an interesting question of law relating to the interpretation of certain provisions of the Code of Criminal Procedure 1898 (the old Code) had been raised. 20. In respect of the murder of one Bobegowda, a case had been registered in the jurisdictional police station on 13th October, 1973. The police had laid charge-sheet against the respondents therein on completion of investigation in the Court of the Judicial Magistrate, Chikmagalur, and the case had been registered in C.C.No.2819 of 1973. After holding an enquiry in accordance with the provisions of Chapter XVII of the old Code and being of the opinion that the respondents should be committed for trial, the learned Magistrate had framed a charge against the respondents under Sec.302 read with Sec.34 of the Penal Code and had read over and explained the charge to the respondents. After giving an opportunity to the respondents to give a list of the names of witnesses whom they wished to be summoned to give evidence, the learned Magistrate had made an order committing the respondents for trial by the Court of Session, Chikmagalur. The order of Committal had been made on 15th March, 1974. In pursuance of it, the record of the case had been forwarded to the Court of Session, Chikamagalur. The order of Committal had been made on 15th March, 1974. In pursuance of it, the record of the case had been forwarded to the Court of Session, Chikamagalur. The record had reached the Court of Session on 23rd March, 1974 and the case had been registered as S.C. No.5 of 1974. The Sessions Judge had fixed the trial of the case on 15th July, 1974. But before that date, on 29th June, 1974, the Public Prosecutor had filed an application for permission to withdraw from the prosecution under Sec.494 of the old Code. The learned Sessions Judge by an order passed on the same day had accorded permission to the Public Prosecutor to withdraw from the prosecution and had discharged the respondents in respect of the offences charged against them. Instead of using the expression “acquitted”, the learned Sessions Judge had used the word “discharged”. 21. The State thereafter had ordered fresh investigation into the of fence and in consequence of such investigation, a new charge-sheet had been filed against the respondents and three others in the Court of the J.M.F.C., Chikmagalur. Since the charge-sheet had been filed after 1st April, 1974 when the Code had come into force, the learned Magistrate, following the provisions of the Code, had committed the respondents and the other three accused to stand their trial before the Court of Session, Chikmagalur for the same offence. When the case came up for hearing before the Sessions Judge, the respondents had made an application contending that by virtue of the order dated 29.6.1974 made by the Sessions Judge under Sec.494 of the old Code, the respondents had been acquitted and that therefore, they were not liable to be prosecuted again for the same offence in view of S.ec.300 of the Code. The Sessions Judge had rejected the application taking the view that the respondents had been discharged and not acquitted under the order dated 29th June, 1974, and, therefore, Sec.300 of the Code was not applicable and there was no bar against their fresh prosecution for the same offence. The challenge made by the respondents by preferring Revision Application in this Court had succeeded. The State after obtaining Special Leave had challenged the order made by this Court in the Appeal. 22. The challenge made by the respondents by preferring Revision Application in this Court had succeeded. The State after obtaining Special Leave had challenged the order made by this Court in the Appeal. 22. The Supreme Court, on the facts, held that the case of the respondents was pending before the Court of Session for trial on 1.4.1974; that it was liable to be tried in accordance with the provisions of the old Code, that the withdrawal of the prosecution was after the framing of the charge against the respondents; and that it had resulted in the acquittal of the respondents under Clause (b) of Sec;494 of the old Code. The Supreme Court after comparing the procedure that was required to be followed by the Sessions Court where an accused had been committed to it for trial as laid down in Chapter XXIII of the old Code with the procedure under the Code where there is no provision for framing a charge by the Committing Magistrate and where the Court of Session to which the case is committed finds, after considering the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution, that there is ground for presuming that the accused has committed an offence which is exclusively triable by the Court of Session, is required by Sec.228 to frame a charge against the accused, held that the charge against the accused under the procedure prescribed in the Code is to be framed for the first time by the Court of Session while according to the procedure prescribed under the old Code, the charge was to be framed by the committing Magistrate and the Court of Session was merely given power to alter or amend the charge if it thought necessary to do so. The Supreme Court, on the facts found, held that when the Court of Session commenced the trial of the respondents, there was already before it a charge framed by the Committing Magistrate, that it was that charge unless altered or amended under Sec.226 of the old Code that was required to be read out and explained to the respondents and on which the plea of the respondents was required to be taken. The Supreme Court held that on withdrawal of the case by the Public Prosecutor with the consent of the Court of Session under Sec.494 of the old Code, the respondents were entitled to be acquitted and not merely discharged and that, therefore, the respondents, who had been acquitted, were not liable to be tried again for the same offence in view of Sec.300 of the Code. The law pronounced has no application to the case of petitioners Nos.1 and 2. 23. Add to that, the challenge to the Constitutional validity of Sec.433-A of the Code based on Art.20(1) of the Constitution was negatived by the Supreme Court in the case of Maru Rant, A.I.R. 1980 S.C. 2147: 1980 Crl.L.J. 1440. The Supreme Court examined the question whether the inflexible insistance on 14 years as a minimum term for release retroactively enlarged the punishment, and the question as to whether if at the time of the com -mission of the offence a certain benign scheme of remissions ruled, the penalty to which the person accused can be said to have been subjected was not the punishment stated in the Indian Penal Code, but that sentence reduced or softened by the Remission Scheme or short-sentencing provision. The argument was that the lifers would ordinarily have been released well before 14 years, the mandatory minimum prescribed by Sec.433-A of the Code and that Sec.433-A would cast a heavier punishment than governed the crime when it was committed. The Supreme Court negatived the contention in the following words: "28. Neither argument has force. The first one fails because Sec.302, Indian Penal Code (or other like offence) fixes the sentence to be life imprisonment 14 years’ duration is never heavier than life term. The second submission fails because a remission, in the case of life imprisonment, ripens into a reduction of sentence of the entire balance only when a final release order is made. Godse, A.I.R. 1961 S.C. 600: (1961)1 Crl.L.J 736, is too emphatic and unmincing to admit of a different conclusion. The haunting distance of death which the terminus ad quern of life imprisonment makes deduction based on remission indefinite enough not to fix the date with certitude. Thus, even if remissions are given full faith and credit, the date of release may not come to pass unless all the unexpired, uncertain balance is remitted by a Government Order under Sec.432. The haunting distance of death which the terminus ad quern of life imprisonment makes deduction based on remission indefinite enough not to fix the date with certitude. Thus, even if remissions are given full faith and credit, the date of release may not come to pass unless all the unexpired, uncertain balance is remitted by a Government Order under Sec.432. If this is not done, the prisoner will continue in custody. We assume here that the constitutional power is kept sheathed.“ 24. These observations made by the Supreme Court, in my opinion, are sufficient to negative the contention urged on behalf of petitioners Nos.l and 2 with persuasive flavour that the question, as to whether petitioners Nos.l and 2 were entitled to release from the prison, should be examined without reference to the provisions contained in Sec.433A of the Code. 25. Sec.433-A of the Code reads: "433-A. 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 person 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.“ 26. This section was added by the Criminal Law Amendment Act, 1978 with the object of prescribing minimum imprisonment for 14 years for those who are convicted of an offence for which death is one of punishments provided by law or where a sentence of death imposed on a person has been commuted under Sec.433 into one of imprisoment for life. 27. In Maru Ram’s case, A.I.R. 1980 S.C. 2147: 1980 Crl.L.J. 1440, the Supreme Court held that Sec.433-A was within the legislative competence of Parliament by virtue of Entries 1 and 2 in List III, especially Entry 2 of the Seventh Schedule read with Art.246 of the Constitution, that it was not violative of Art.14 of the Constitution as it was based on reasonable classification and, as stated earlier, it was not violative of Art.20(1) of the Constitution. 28."A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. But a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing“. (Vide Craies on Statute Law, Seventh Edition, page 387). 29. The Supreme Court in Maru Ram’s case, A.I.R. 1980 S.C. 2147:1980 Crl.L.J. 1440, has held that Sec.433-A is prospective. A Division Bench of this Court in Thimma v. Union of India, 1981 Crl.L.J. 244, has held that Sec.433-A creates no new obligation or imposes no new duty nor it impairs any vested right acquired by a life convict; that it is just a constraint on the unconditional and unlimited power of remission conferred by Sec.432 on the State; and that, therefore, it cannot be said that Sec.433-A has been given any retrospective operation. 30. In the case on hand, both the petitioners were tried of the offences of murder for which death is one of the punishment provided by law and have been sentenced to imprisonment for life on their conviction for the offences of murders. They were convicted and sentenced after December 18, 1978. 31. Hence, I hold that the case of petitioners Nos.1 and 2 is governed by the provisions contained Sec.433-A of the Code. 32. It is necessary to read Secs.432 and 433 of the Code before deciding the merit of the contention of petitioners Nos.1 and 2. They read: "432. (1) When any person has been sentenced to punishment for an offence, 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. They read: "432. (1) When any person has been sentenced to punishment for an offence, 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. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to State his opinion as to whether the application should be granted or refused together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with; Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and- (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property. (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 is sentenced or the said order is passed." "433. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment for a simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine." 33. These two sections relate to remission and commutation of sentences, Sec.432 clothes the appropriate Government with the power to suspend the execution of the sentence of a person sentenced to punishment for an offence, at any time, without conditions or upon any conditions which the person sentenced accepts, to remit the whole or part of any sentence. The power given to the appropriate Government under Sec.432 is a very wide power. In the absence of Sec.433-A, the power extends to remission of the entire life sentence if Government chooses to do so. A liberal use of the power of remission under Sec.433(a) may mean that many a killer or other offender who could have been given death sentence by the Court but has been actually awarded only life sentence may find his way out legally the very next morning, the very next year, after a decade or at any other time the appropriate Government is in a mood to remit his sentence. 34. 34. If we read the fasciculus of Secs.432, 433 and 433-A, it would be clear that while the Code confers wide powers of remission and commutation of sentences, it emphatically and in clear terms intends to carve out a category from the broad and large generosity of the executive power. 35. The non obstante clause, with which Sec.433-A opens in terms, excludes Sec.432. The message regarding the intent of the Legislature is contained in the rest of the Section. This message necessarily subjects the operation of Sec.433(a) to a serious restriction. The obligation enjoined by Sec.433-Ais the actual detention in Prison for full 14 years as a mandatory minimum in the two classes of cases mentioned therein. 36. The embargo enacted in Sec.433-A directs that commutation in the category of cases coming within the mischief of Sec.433-A shall not reduce the actual duration of imprisonment below 14 years. 37. Once it is held, as it ought to be that the case of the petitioners is governed by Sec.433-A of the Code and as is evident from the facts on record that both the petitioners have not completed their detention in Prison for full 14 years, the inescapable impression and the inevitable conclusion is that they cannot claim any direction to the respondent (State) to consider their case for premature release. 38. Of course, the material on record shows that if the pre-conviction detentions and the remissions earned by petitioners Nos.1 and 2 are taken into consideration, the total period of detention would well be beyond 14 years. 39. But the moot question would be whether the petitioners would be entitled to ask the Court to take into consideration their pre-conviction detentions and the remissions earned by them to calculate the mandatory minimum of 14 years enacted in Sec.433-A of the Code. 40. In Gopal Vinayak Godse v. State of Maharashtra, A.L.R. 1961 S.C. 600: (1961)1 Crl.L.J. 736, the Constitution Bench of the Supreme Court held 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 remitted or commuted by the appropriate Government. 40. In Gopal Vinayak Godse v. State of Maharashtra, A.L.R. 1961 S.C. 600: (1961)1 Crl.L.J. 736, the Constitution Bench of the Supreme Court held 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 remitted or commuted by the appropriate Government. The Supreme Court further held in the said case that since such a sentence could not be equated with any fixed term, the Rules framed under the Prison Act entitled such a person to earn remissions but that, such remissions were to be taken into account only towards the ends of the term. As observed earlier, the appropriate Government in exercise of the power conferred on it under Sec.432 of the Code may remit the whole or any part of the punishment to which a person has been sentenced. The appropriate Government in exercise of the power given to it under Sec.433 of the Code, inter alia, may commute the sentence of imprisonment for Life to imprisonment for a term not exceeding 14 years or to fine. 41. Indeed, in view of the decision of the Supreme Court in Bhagirath v. Delhi Administration, (1985)2 S.C.C. 580 :1985 S.C.C. (Crl.) 280:1985 Crl.L.J. 1179.A.I.R. 1985 S.C. 1050, both the petitioners would be entitled to set off of period of detention undergone by them as under-trial prisoners, but they would be so entitled subject to the provisions of Sec.433-A and provided the appropriate Government or the competent Authority passes an order either under Sec.432 or Sec.433 of the Code. 42. In Mam Ram’s case, A.I.R. 1980 S.C. 2140: 1980 Crl.L.J. 1440, the Supreme Court pointing out the distinction between prisons and prisoners on the one hand and sentences and their executions, remissions and commutation on the other, has pronounced that the Remission Schemes cannot be read as upsetting sentence but as merely providing rewards and remissions for in-prison good conduct and the like and that if the sentence is Life Imprisonment, remissions, as such cannot help. The law laid down by the Supreme Court is that Sec.433-A not only excludes Sec.432 and subjects operation of Sec.433(a) to serious restriction, but also excludes all contrary Prison Rules in respect of convicts contemplated by it. 43. The remissions earned by Petitioners Nos.1 and 2 can come up for consideration subject to the provisions contained in Sec.433-A. 44. The law laid down by the Supreme Court is that Sec.433-A not only excludes Sec.432 and subjects operation of Sec.433(a) to serious restriction, but also excludes all contrary Prison Rules in respect of convicts contemplated by it. 43. The remissions earned by Petitioners Nos.1 and 2 can come up for consideration subject to the provisions contained in Sec.433-A. 44. For the reasons aforesaid, I hold that the petitioners are not entitled to the relief claimed in the Writ Petition. The case of Petitioners Nos.l and 2 for their premature release can be considered by the State Government and the appropriate authorities only after they complete the term of 14 years in the Prison without reference to their pre-conviction detentions and the remissions earned by them. 45. In the result, the Rule is discharged and the writ petition is dismissed.