Pavitar Singh vs State of Punjab and Another

I.S. Tiwana, J.—The petitioner who claims to be less than 17 years of age on the date of crime on being sentenced to life imprisonment u/s 302, I.P.C. on Mar. 12, 1980, prays that since he has undergone more ten years'' imprisonment (actual plus remissioas), the State authorities be directed to consider his case for premature release. This claim is made in the light of para. 516-B of the Punjab Jail Manual the relevant part of which reads as under:-

(b) The case of a female prisoner and of a male prisoner under 20 years of age at the time of commission of offence who is undergoing:

(i) Imprisonment/s for life.

(iv) A single sentence of more than 20 years shall be submitted through the Inspector General of Prisons, Punjab, for the orders of the State Government when the prisoner has undergone a period of detention in jail amounting together with remission earned to 10 years.

Stand further is that the restriction imposed on the powers of the State Government qua remission and commutation of sentences in such cases vide Section 433A as introduced by the Criminal Amendment Act, 1978, with effect from Dec. 18, 1978, does not affect power of the State Government to order premature release or at least the consideration for such a release u/s 433(b) of the Cr.P.C. In other words, the submission is that the power of the State Government to commute a sentence of life u/s 433, Cr.P.C. is not affected by Section 433A in any manner. The stand of the respondents while conceding that up to April 20, 1987 the petitioner had undergone actual imprisonment of 6 years 7 months and 20 days and had also earned remission for 5 years 5 months and 2 days in accordance with the critieria laid down in the above noted manual for remission of sentences is that the provisions of the manual which are no more than Government instructions are of no avail to the convicts in the face of Section 433A, Cr.P.C. as the bar created by this section that a person who has been sentenced to imprisonment for life for an offence for which death is one of the punishments provided by law cannot be released from prison unless he has served at least 14 years of imprisonment, is absolute. Having given my thoughtful consideration to the entire matter I find that the petitioner has no case.

The submission of Mr. B. S. Malik, learned Counsel for the petitioner, as has been noticed above, appears to be the result of some confusion as the learned Counsel equates ''remission'' with ''commutation'' of sentences. He while conceding that Section 433A is a complete bar to the remission of sentences as envisaged by Section 432, Cr.P.C. contends that this bar is not applicable to the power of the State Government to direct a premature release of the convict as envisaged by Clause (b) of Section 433, Cr.P.C. As pointed out earlier, this submission is founded on the belief that remission of a sentence is the same thing as commutation of a sentence. This, however, on the face of it, is totally fallacious. The ordinary dictionary meaning of ''remission'' is to remit, relinquishment of a claim, pardon, forgiveness. On the other hand, ''to commute'' means to exchange or to exchange for a punishment less severe. This was the precise meaning attributed to these two words by the Law Commission in its 41st report while it was considering the revision of Sections 401 and 402 of the earlier Cr.P.C. This is what the Commission observed in its report:

''Remission'' originally meant a pardon under the great seal and release, but laterly it came to mean the same as a reduction of the quantum of the punishment, e.g. amount of the fine imposed or term of imprisonment awarded (without changing its character). ''Commutation'' means the alteration of a sentence of one kind into a sentence of a less severe kind as indicated in Section 402 of the Code.

It is thus patent that power of the State Government to grant remission or direct commutation of sentences in such cases is not the same. u/s 433, Cr.P.C. the appropriate Government can only commute a sentence, i.e., can change its character by making it less severe. It cannot order release. The object of Section 433A of the Code is to prescribe minimum imprisonment of 14 years for those who are convicted of 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 or altered u/s 433 into one of imprisonment for life. The opening non obstante clause of this section makes it clear that such minimum imprisonment is notwithstanding anything contained in Section 432, Cr.P.C. which means that the power to suspend or remit sentence under that section cannot be exercised so as to reduce the imprisonment of a person convicted of such an offence or whose death sentence has been commuted or altered to life imprisonment for less than 14 years. Clause (b) of Section 433, Cr.P.C. entitles or empowers the appropriate Government to commute a sentence of imprisonment for life which in he normal course is to end up with the last breath of the convict for imprisonment to lesser term but not less than 14 years or to fine. This power of the Government has nothing to do with the power of remission or please as envisaged by Section 432, Cr.P.C. It is, therefore, manifest that the petitioner who had by now not undergone 14 years'' actual imprisonment is not entitled to be released. In the face of this conclusion of mine, the Superintendent of Central Jail, Patiala, is under no obligation to forward the case of the petitioner to the State Government for his premature release as is being contended on his behalf in the light of the above noted paragraph of the Punjab Jail Manual.

The petition is thus totally meritless and is dismissed.