Facts of the Case

  • An FIR was lodged on October 21, 1977, the petitioner was arrested on the next day and he along with others was charge sheeted for the murder.
  • The petitioner was tried and convicted for murder on December 20, 1978 by Sessions Judge, and was ordered to suffer imprisonment for life. His appeal was dismissed by the High Court of Rajasthan. Since then he was serving time.
  • He filed a Habeas Corpus Writ Petition, 1987 in the High Court of Rajasthan at Jodhpur for premature release on the plea that he was entitled to be considered for such release under the relevant rules of Rajasthan Prisons (Shortening of Sentences) Rules, 1958, notwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973 with effect from December 18, 1978, just two days before his conviction.
  • His grievance was that he was being denied the benefit of early release under the 1958 Rules under the garb of the newly added Section 433A, on the ground that it places a statutory embargo against the release of such a convict unless he has served atleast 14 years of imprisonment’.
  • He contended that the said provision could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice could be based on a variety of considerations including the provisions of the 1958 Rules.
  • The writ petition was, however, dismissed by the High Court on October 31, 1988, on the ground that it was premature inasmuch as the petitioner’s two representations, one to the Governor and another to the State Home Minister, were pending consideration. The High Court directed that they should be disposed of within one month. In this view of the matter the High Court did not deem it necessary to consider the various questions of law raised in the petition on merits.
  • After the rejection of his writ petition by the High Court, the petitioner through his counsel addressed a letter dated November 28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision thereon within a month as observed by the High Court.
  • Failing to secure his early release notwithstanding the above efforts, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution.

Contentions of the Petitioners

  • The petitioner’s case in a nutshell was that under the provisions of the 1958 Rules, a `lifer’ who has served an actual sentence of about 9 years and 3 months is entitled to be considered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour.
  • However, the petitioner contended, his case for premature release was not considered by the concerned authorities in view of the newly added section 433A of the Code on the interpretation that by virtue of the said provision the case of a `lifer’ cannot be considered for early release unless he has completed 14 years of actual incarceration, the provisions of sections 432 and 433 of the Code as well as the 1958 Rules notwithstanding.
  • According to him, even if the provisions of sections 432 and 433 of the Code do not come into play unless a convict sentenced to life imprisonment has completed actual incarceration for 14 years as required by section 433A, the authorities have failed to realise that section 433A cannot override the constitutional power conferred by Articles 72 and 161 of the Constitutional on the President and the Governor, respectively, and the State Government i.e., the Council of Ministers, could advise the Governor to exercise power under Article 161 treating the 1958 Rules as guidelines.
  • Since the petitioner had already moved the Governor under Article 161 of the Constitution it was incumbent on the State Government to consider his request for early release, notwithstanding section 433A, and failure to do so entitled the petitioner to immediate release as his continued detention was, wholly illegal and invalid.
  • The petitioner brands section 433A of the Code to be a `legislative fraud’ inasmuch as the said provision was got approved by the Parliament on the assurance that the said provision is complementary to the various amendments proposed in the Indian Penal Code, inasmuch as the connected legislation, namely, the Indian Penal Code (Amendment) Bill XLII of 1972 did not become law although passed by the Rajya Sabha as the IPC (Amendment) Act, 1978, on November 23, 1978.
  • Counsel submitted that section 433A was got introduced on the statute book by deception, in that, when the former Bill was made law an impression was given that the twin legislation which had already been cleared by the Rajya Sabha on November 23, 1978 would in due course be cleared by the Lok Sabha also so that the application of section 433A would be limited to capital offences only and would have no application to a large number of `lifers’.

  It must be conceded that such would have been the impact if the Indian Penal Code (Amendment) Bill was passed by the Lok Sabha in the form in which the Rajya and approved it.    

Provision of Section 433A

433A.Restriction on powers of remission or Commutation in certain cases,

“Notwithstanding anything contained in section 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 section 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 Supreme Court Analysis

The Supreme Court analysed the case as follows-

  • Section 433A was expected to deny premature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence, i.e., an exceptionally heinous crime specified in the second part of the proposed section 302, IPC.
  • It was clarified that section 433A cannot and does not in any way affect the constitutional power conferred on the President/Governor under Article 72/161 of the Constitution. It does give an impression that certain provisions of the Indian Penal Code (Amendment) Bill were interlinked with section 433A of the Code.
  • The language of section 433A is clear and unambiguous and does not call for extrinsic aid for its interpretation. To accept the counsel’s submission to read down or interpret section 433A of the Code with the aid of the change proposed by the Indian Penal Code (Amendment) Bill would tantamount to treating the provisions of the said Bill as forming part of the Indian Penal Code which is clearly impermissible.

  To put such an interpretation with the aid of such extrinsic material would result in violence to the plain language of section 433A of the Code. We are, therefore, unable to accept even this second limb of the contention.  

  • Unless the sentence for life imprisonment is commuted or remitted as stated earlier by the appropriate authority under the provisions of the relevant law, a convict is bound in law to serve the entire life term in prison; the rules framed under the Prisons Act or like statute may enable such a convict to earn remissions but such remissions will not entitle him to release before he has completed 14 years of incarceration in view of section 433A of the Code unless of course power has been exercised under Article 7/161 of the Constitution.
  • Under the Constitutional Scheme the President is the Chief Executive of the Union of India in whom the executive power of the Union vests. Similarly, the Governor is the Chief Executive of the concerned State and in him vests the executive power of that State. Articles 72 and 161 confer the clemency power of pardon, etc., on the President and the State Governors, respectively.
  • Needless to say that this constitutional power would override the statutory power contained in sections 432 and 433 and the limitation of section 433A of the Code as well as the power conferred by sections 54 and 55, IPC. No doubt, this power has to be exercised by the President/Governor on the advice of his Council of Ministers.
  • How this power can be exercised consistently with Article 14 of the Constitution was one of the Questions which this Court was invited to decide in Maru Ram’s case[1]. In order that there may not be allegations of arbitrary exercise of this power this Court observed at pages 1243-44 as under:

  “The proper thing to do, if Government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, ofcourse, a large residuary power to meet special situations or sudden developments.   This will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, color or political loyalty.”  

  • Till such rules are framed this Court thought that extant remission rules framed under the Prisons Act or under any other similar legislation by the State Governments may provide effective guidelines of a recommendatory nature helpful to the Government to release the prisoner by remitting the remaining term. It was, therefore, suggested that the said rules and remission schemes be continued and benefit thereof be extended to all those who come within their purview.
  • At the same time the Court was aware that special cases may require different considerations and `the wide power of executive clemency cannot be bound down even by self-created rules’. Summing up its findings in paragraph 10 at page 1249, this Court observed:

  “We regard it as fair that until fresh rules are made in keeping with the experience gathered, current social conditions and accepted penological thinking-a desirable step, in our view-the present remissions and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, section 433A is itself treated as a guideline for exercise of Articles 72/161.

These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.”

It will be obvious from the above that the observations were purely recommendatory in nature.  

  • Lastly the learned counsel for the petitioner raised a hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of section 433A of the Code?
  • It is difficult and indeed not advisable to answer such a hypothetical question without being fully aware of the nature of conditions imposed for release. We can do no better than quote the following observations made at page 1247 in Maru Ram’s case:

  “……..the expression `prison’ and `imprisonment’ must receive a wider connotation and include any place notified as such for detention purposes. `Stone-walls and iron bars do not a prison-make’: nor are `stone walls and iron bars’ a sine qua non to make a jail. Open jails are capital instances any life under the control of the State whether within high-walled or not may be a prison if the law regards it as such. House detentions, for example, Palaces, where Gandhiji was detained were prisons.  

Restraint on freedom under the prison law is the test. Licenced where instant re-capture is sanctioned by the law and likewise parole, where the parole is not free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment. This point is necessary to be cleared even for computation of 14 years under section 433A.  

Therefore, in each case, the question whether the grant of conditional premature release answers the test laid down by this Court in the afore-quoted passage, would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is to be executed. No general observation can be made and we make none.  

  • The relief claimed in the petition is two-fold, namely, (a) to grant a mandamus to the appropriate Government for the premature release of the petitioner by exercising constitutional power with the aid of 1958 Rules and (b) to declare the petitioner’s continued detention as illegal and void.
  • The petitioner has not completed 14 years of actual incarceration and as such he cannot invoke sections 432 and 433 of the Code. His continued detention is consistent with section 433A of the Code and there is nothing on record to show that it is otherwise illegal and void.

  The outcome of his clemency application under the constitution is not put in issue in the present proceedings if it has been rejected and if the same is pending despite the directive of the High Court it would be open to the petitioner to approach the High Court for the compliance of its order. Under the circumstance no mandamus can issue.”  


Ashok Kumar Alias Golu vs Union Of India: 1991 SCR (2) 858, 1991 SCC (3) 498

[1] Maru Ram v. Union of India, [1981] 1 SCR 1196