STATE OF RAJASTHAN AND OTHERS versus MUKESH SHARMA on 22 April 2019

Issues

1. A common question of law arises for consideration in this batchof appeals. The individual facts are therefore not relevant for adjudication.GSuffice it to observe that each of the respondents in the respective appealswas convicted under Section 302 and other provisions of the Indian PenalCode in different Sessions trials arising from separate unconnectedincidents and sentenced to imprisonment for life. They filed individualwrit petitions contending that they had served more than 14 years incustody but their cases were not placed by the Jail Authorities beforeH

the State Advisory Boards for shortening of their sentences and prematurerelease. The constitutional validity of Rule 8(2)(i) of the Rajasthan Prisons(Shortening of Sentences) Rules, 2006, (hereinafter referred to as “theRules, 2006”) was challenged, putting a fetter on consideration of theircases till they earned a minimum of four years of remission aftercompleting 14 years of actual imprisonment excluding remission, as beingcontrary to Section 433-A Cr.P.C. No other issue was urged.

2. The Rules, 2006 were framed by the State Government inexercise of powers under Clause (2) & (5) of Section 59 (1) of thePrisons Act, 1894 (hereinafter referred to as ‘the Act’). The High Courtheld that the Rules not having been placed before the Legislature of theState as required by Section 59(2) of the Act did not acquire statutoryforce. Furthermore, the Rules could not have been framed contrary toSection 433-A of the Code of Criminal Procedure, 1973, relying on theConstitution Bench decision in Maru Ram vs. Union of India, 1981 (1)SCC 107.

3. In view of the question of law involved, it will be proper to setout the statutory provisions arising for consideration.

“Section 59. Power to make rules.-

(1) The State Government may by notification in the OfficialGazette make rules consistent with this Act- xxx

(2) determining the classification of prison-offences intoserious and minor offences; xxx

(5) for the award of marks and the shortening of sentences; xxx

(2) Every Rule made under this section shall be laid, as soon asmay be after it is made, before the State Legislature.”

“Rule 8(2) Notwithstanding anything contained insub-rule (i)

(i) a prisoner who has been sentenced to imprisonment for life forany offence for which death penalty is one of the punishment A

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Aprovided by law or who has been sentenced to death but thissentence has been commuted under Section 433 of Code ofCriminal Procedure, 1973, into one of imprisonment for life, shallbe considered only after he has served 14 years of actualimprisonment excluding remission but including the period ofdetention spent during enquiry, investigation or trial, on the conditionBthat such a prisoner shall also have to earn minimum of 4 years ofremission in order to be eligible for consideration.”

“Section 433-A. Restriction on powers of remission andcommutation in certain cases - Notwithstanding anythingcontained in section 432, where a sentence of imprisonment forClife is imposed on conviction of a person for an offence for whichdeath is one of the punishments provided by laws, or where asentence of death imposed on a person has been commuted undersection 433 into one of imprisonment for life, such person shallnot be released from prison unless he had served at least fourteenDyears of imprisonment.”

4. Learned Senior Counsel Dr. Manish Singhvi, for the appellants,submitted that the High Court erred in striking down the latter part ofRule 8(2)(i) requiring a minimum of four years remission after completionof 14 years in custody on both counts. Adverting to the striking down ofEthe Rule for not laying it before the Legislature, it was submitted that theRules did not contemplate laying before the Legislature prior topromulgation, as a pre-condition. The use of the words “as soon as”does not give any definite time period before which it is to be laid beforethe State Legislature. No consequences were provided for not layingthe Rules before the Legislature, and in absence of which it could notFcome into force. The provision was therefore directory and not mandatory.Any omission, therefore, in laying the Rules before the Legislature doesnot render the Rules invalid. In any event, the Rules had subsequentlybeen laid before the Legislature. Dr. Singhvi relied on M/s. Atlas CycleIndustries Ltd. & ors. vs. the State of Haryana, (1979) 2 SCC 196.

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5. It was next submitted that remission after completion of 14years in custody was not a matter of right, but was dependent on a hostof considerations. Maru Ram (supra) has not been correctly appreciated.Life imprisonment normally means an imprisonment for life. Section 433-A, Cr.P.C. stipulates that where sentence for imprisonment for life isHimposed for an offence for which death is one of the punishments such person shall not be released from prison unless he had served at leastfourteen years of imprisonment. Thus, the State in its wisdom couldeasily provide that life imprisonment shall not be subject to any remissionor provide limitations on the same. Remission, in the present case, beinga matter of State policy as incorporated in statutory rules falling withinthe domain of the State, could not be claimed as a matter of fundamentalright. Reliance was placed on Mohd. Munna vs. Union of India &ors., (2005) 7 SCC 417. The State Government could, therefore, alwaysinsist on a minimum number of years before premature release of aconvict serving life sentence.

6. Learned counsel for the respondents submitted that the remissionpolicy of the State Government was ultra vires Article 14 of theConstitution of India as it would take approximately 18 years ofimprisonment for a model prisoner to earn 4 years of remission, makingit virtually impossible to be considered for shortening of sentence in termsof Section 433-A. Rule 8(2)(i) was clearly contrary to Section 433-ACr.P.C. in view of Maru Ram (supra) to the extent that it restrictsconsideration for remission after 14 years.

7. We have considered the respective submissions. The plainlanguage of Section 59(2) makes it manifest that there is no requirementfor laying of the Rules before the Legislature prior to promulgation. Notime limit for laying has been provided. As rightly urged, the use ofwords “as soon as” coupled with the absence of any consequence fornot laying makes the provision directory and not mandatory. In AtlasCycle (supra) it was observed:

“22. …In the instant case, it would be noticed that sub- section(6) of Section 3 of the Act merely provides that every order madeunder Section 3 by the Central Government or by any officer orauthority of the Central Government shall be laid before bothHouses of Parliament, as soon as may be, after it is made. Itdoes not provide that it shall be subject to the negative or theaffirmative resolution by either House of Parliament. It also doesnot provide that it shall be open to the Parliament to approve ordisapprove the order made under Section 3 of the Act. It doesnot even say that it shall be subject to any modification whicheither House of Parliament may in its wisdom think it necessaryto provide. It does not even specify the period for which theorder is to be laid before both Houses of Parliament nor does it AB

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provide any penalty for non-observance of or non-compliance withthe direction as to the laying of the order before both Houses ofParliament. It would also be noticed that the requirement as tothe laying of the order before both Houses of Parliament is not acondition precedent but subsequent to the making of the order. Inother words, there is no prohibition to the making of the orderswithout the approval of both Houses of Parliament. In thesecircumstances, we are clearly of the view that the requirement asto laying contained in sub-section (6) of Section 3 of the Act fallswithin the first category i.e. “simple laying” and is directory notmandatory.”

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In conclusion, it was held that the Legislature never intended thatnon-compliance with the requirement of laying as envisaged by sub-section (6) of Section 3 of the Act should render the order void.

8. Part-3 of the Rajasthan Prison Rules, 1951, under the headingRemission System, in Rule 1(e) provides that the sentence forDimprisonment for life or transportation of life shall be deemed to meanimprisonment for 20 years.

9. Rule 2(e) of the Rules 2006, defines shortening of sentence tomean the reduction of that period of sentence of a prisoner which he hasto serve in the prison upon a judicially pronounced sentence as a matterEof grace on the part of the Stateand as a recognition of his good behaviourin the prison.

10. That sentence for imprisonment for life or transportation oflife under the Penal Code shall mean the convict’s natural life needs nofurther elaboration in view of Gopal Vinayak Godse vs. State ofFMaharashtra (1961) 3 SCR 440 followed in para 72(4) of Maru Ram(supra) as follows:

“5….. A sentence of transportation for life or imprisonment forlife must prima facie be treated as transportation or imprisonmentfor the whole of the remaining period of the convicted person’sGnatural life.”

11. Section 432 Cr.P.C. provides for the power to suspend orremit sentences and also to refuse the same. Section 433 (b) Cr.P.C.provides for commuting a sentence of imprisonment for life to 14 years.Section 433-A Cr.P.C. provides that remission or commutation shall not H

STATE OF RAJASTHAN AND OTHERS v. MUKESH SHARMA[NAVIN SINHA, J.]

enable release of the convict from prison unless the person had servedat least 14 years of imprisonment. It, therefore, fixes a minimum periodbefore which remission could not be considered. Any rule that mayprovide to consider remission before 14 years would obviously be bad inview of the statutory provision contained in the Code. In Union ofIndia vs. V. Sriharan, (2016) 7 SCC 1, it was observed:

“79. In this context, the submission of the learned Solicitor Generalon the interpretation of Section 433-A CrPC assumes significance.His contention was that under Section 433-A CrPC what isprescribed is only the minimum and, therefore, there is no restrictionto fix it at any period beyond 14 years and up to the end of one’slifespan. We find substance in the said submission. When we referto Section 433-A, we find that the expression used in the saidsection for the purpose of grant of remission relating to a personconvicted and directed to undergo life imprisonment, it stipulatesthat “such person shall not be released from prison unless he hadserved at least fourteen years of imprisonment” (emphasissupplied). Therefore, when the minimum imprisonment isprescribed under the statute, there will be every justification forthe court which considers the nature of offence for whichconviction is imposed on the offender for which offence the extentof punishment either death or life imprisonment is provided for, itshould be held that there will be every justification and authorityfor the court to ensure in the interest of the public at large and thesociety, that such person should undergo imprisonment for aspecified period even beyond 14 years without any scope forremission. In fact, going by the caption of the said Section 433-A,it imposes a restriction on powers of remission or commutation incertain cases….”

12. Manifestly remission not being a matter of right, much lessupon completion of 14 years of custody, but subject to rules framed inthat regard, including complete denial of the same in specifiedcircumstances, as a matter of State policy, nothing prevents the Statefrom imposing restrictions in the manner done by Rule 8(2)(i) to considerclaims for remission. In Maru Ram (supra) this Court held:

“30. A possible confusion creeps into this discussion by equatinglife imprisonment with 20 years’ imprisonment. Reliance is placedfor this purpose on Section 55 IPC and on definitions in various A

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ARemission Schemes. All that we need say, as clearly pointed outin Godse, is that these equivalents are meant for the limitedobjective of computation to help the State exercise its wide powersof total remissions. Even if the remissions earned have totalled upto 20 years, still the State Government may or may not releasethe prisoner and until such a release order remitting the remainingBpart of the life sentence is passed, the prisoner cannot claim hisliberty. The reason is that life sentence is nothing less than lifelongimprisonment. Moreover, the penalty then and now is the same— life term. And remission vests no right to release when thesentence is life imprisonment. No greater punishment is inflictedCby Section 433-A than the law annexed originally to the crime.Nor is any vested right to remission cancelled by compulsory 14-year jail life once we realise the truism that a life sentence is asentence for a whole life.”

13. It is, therefore, held that the High Court erred in striking downDRule 8(2)(i) of the Rules, 2006 on both counts. The Rule is held to bevalid and consistent with the law. The impugned orders of the HighCourt are set aside and the appeals are allowed.

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Kalpana K. Tripathy

Appeals allowed.

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