V.D. TULZAPURKAR, J.

1. By this writ petition under Art 32 of the Constitution the Petitioner Naib Singh is challenging his continued detention in jail and is seeking an order in the nature of habeas corpus claiming that he has justly served more than the maximum sentence of imprisonment prescribed under law and should, therefore, be released.

2. The Petitioner was originally sentenced to death on 18-1-1969 by the learned Sessions Judge, Ferozepore, for committing an offence of murder under Section 302, Penal Code Later on a mercy petition preferred by him, his death sentence was commuted by the Governor of Punjab to imprisonment for life, which he has been undergone in the Central Jail at Bhatinda. Excluding the period spent by him as an under-trial prisoner (in respect where of no life-convict is entitled to the benefit of a set off) under Section 428 Cr.P.C. 1973 as interpreted by this Court in Kartar Singhs Case, 1982 3 SCC 1 (AIR 1982 SC 1439) the petitioner appears to have years 2 months and 17 days inclusive of remissions as under :

Years months days ----- ------ ----

(a) actual rigorous imprisonment 11 5 10 after conviction.

(b) Jail remissions. 2 3 6

(c) Govt. remissions. 8 6 1

---------------------- Total : 22 2 17 ----------------------

Admittedly, neither his sentence has been remitted fully nor commuted for imprisonment for a term not exceeding 14 years either under Section 55 I.P.C. or Section 433(b) Cr.P.C. 1973 bay the appropriate Government, with the result that he is liable to serve his sentence until the remainder of his life in prison under the ruling of this Court in Gopal Godses case, 1961 3 SCR 440 [LQ/SC/1961/11 ;] : (AIR 1961 SC 600 [LQ/SC/1961/11 ;] ). However, on the basis of the aforesaid particulars, which are not disputed the petitioners case is that 14 years of sentence including remissions and since through the officer-in-charge of jail the Government got executed his sentence in jail custody in the form of rigorous imprisonment, that is by subjecting him to hard labour and also by awarding him remissions the Government must be demanded to have commuted his sentence to 14 years either under Section 55 I.P.C. of Section 433(b) Cr.P.C. 1973 not withstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith.

3. for the petitioner elaborated the petitioners case thus, Section 53 I.P.C. prescribes five of six distinct categories of punishment to which offenders are liable under the Penal Code. Prior to its amendment by Section 117 of the code of Criminal Procedure (Amendment) Act (26 of 1955) that section prescribed the punishment of Transportation at item Secondly but that was substituted by imprisonment for life by the said amendment Act (26 of 1955) with effect from January 1, 1956. According to counsel though persons who commit the offence of murder have been made liable to the newly substituted punishment of Imprisonment for life instead of the earlier sentence of transportation for life under Section 302 I.P.C. read with Secondly of Section 53, I.P.C. this new sentence of Imprisonment for life (either awarded originally by the Sessions Court or by way of commutation of death sentence by the appellate Court of the appropriate Government or authority) has not been made legally executable in jail under either the Criminal P.C. 1898 or 1973 or any other law or under by the Officer-in-charge of jail and like sentence of transportation for life, imprisonment for life remains executably by way of banishment or exile to the place envisasged under Section 32 of the Prisoners Act (3 of 1900) and the Officer-in Charge of the jail is merely mandated to keep the convict persons in intermediate custody only and is required to deliver him over to appropriate authority and custody for the purpose of removal to the places aforesaid for executing or carrying out the sentence and in this behalf reliance was placed on the prescribed Forms of Warrant of Commitment under Sections 383 and 386 of the Cr.P.C. 1898 as also under Section 418 of the Cr.P.C. 1973 and therefore, the detention in jails of a persons under Imprisonment for life is unlawful. Counsel, further urged that the Amending Act (26 of 1955) did not change the nature of punishment formerly known as transportation for life by calling Imprisonment for life and the latter like the former remains distinct from the punishment of rigorous or simple imprisonment enlisted at item Fourthly in Section 53 I.P.C. and it is only the punishment enlisted at item Fourthly (which must mean imprisonment for a term) that can be executed in a jail either in rigorous manner or simple depending upon the courts direction contained in the Warrant of Commitment; in other words the two punishments, namely, imprisonment for life sand imprisonment (for a term) rigorous or simple are distinct punishments as regards their nature, the place and the mode of their execution and the Officer executing them. In substance, counsel contention has been that in regard to the sentence of life imprisonment the place where it has to be executed or carried out has not been appointed under section 32 of the Prisoners Act. 1900 nor has its nature been a prescribed that is to say it is not necessary rigorous. In support of the latter aspect regarding the nature of the punishment. Counsel relied upon the fact that even the Law Commission in its 3rd Report dated 4th July, 1968 on The Punishment of Imprisonment for life under the I.P.C. had recommended a suitable amendment in the I.P.C. by inserting a specific provisions to the effect. "Imprisonment for life shall be rigorous", and that the said recommendation was retorted by it in its 42nd Report which suggests that the existing law on this aspect is not clear. Counsel therefore urged that since the sentence of imprisonment for life like the sentence of transportation for life can be executed only by the convict being removed to the place or places required to be appointed by the State Government under Section 32 of the Prisoners Act 1900 and since no such place of places have been appointed by the State Government the executing authorities are obliged by the present state of law to execute or carry out the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under Section 55 I.P.C. of Section 433 (b) Cr.P.C. 1973. In other words according to counsel in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail custody his detention in such jail custody will have to be regarded as illegal and unlawful or alternatively it should be held that on his being made to undergo rigorous imprisonment in jail for a period or 14 years (inclusive of remissions) he would be entitled to be released from jail as on the expiry of the aforesaid period his continued detention would be illegal. It was on the basis of the aforesaid reasoning that counsel contended that although no formal order of communication either under Section 55 I.P.C. of Section 433(b) Cr.P.C. has been passed in the case of the petitioner, the petitioner having been subjected to rigorous imprisonment for a period of more than 14 years (inclusive of remissions) the State Government should be deemed to have passed such an order and the petitioner was entitled to be released forthwith.

4. On the other hand counsel for the respondent seriously disputed that either the old sentence of transportation of life or the new sentence of imprisonment for life substituted by the Amending Act 26 of 1955 was or is executable only by way of banishment or exile of the convicts to overseas penal settlements or that the Officer-in-Charge of jails could not or cannot country for executing or carrying out the sentence imposes upon them. Counsel emphatically denied that either the old sentence of transportation of life (either awarded originally or by way of commutation of death sentence) had not been or has not been made legally executable in jails in the country and contended that there was and is ample legal authority warranting the execution or carrying out of such sentence in the jails through the Officer-in-charge thereof and in that behalf reliance was placed on Sections 383-384 of the old Cr.P.C. 1898 as well as Sections 418-419 of the present Cr.P.C. 1973 read with Sections 3, 7, 15, 16, 29 and 32 of the Prisoners Act No. 3 of 1900 and certain executors or administrative orders or directions issued from time to time by State Government in particular reference was made to paras 719 and 726A of the Punjab jail Manual whereunder transportation prisoners (who would include life convicts) could be made to undergone their sentence in certain jails in the country - such jails being constituted the place for their confinement under Section 32 of Act 3 of 1900, and counsel urged that accordingly the petitioner herein has been undergoing his sentence of life imprisonment in the Central jail, Bhatinda. Further on the aspect of the nature of the punishment counsel contended that having regard to the insertion of a new sections Section 53-A in the Penal Code by the Amending Act 26 of 1955 which is in the nature of an Interpretation Clause it would be clear that Parliament intended that a sentence of imprisonment for life should be equivalent to rigorous imprisonment for life. It was pointed out that on both the aspects touching the punishments of imprisonment for life (namely, the place of its executability as well as its nature) the contentions urged on behalf of the petitioner have been concluded by two well-known judicial pronouncement one of the Privy Council Pandit Kishori Lals case. AIR 1945 PC 64 [LQ/PC/1944/47] and the other of this court in Gopals case (AIR 1961 SC 600 [LQ/SC/1961/11 ;] ) (supra) and the position in law on both of the aspects the recommendation made by the Law Commissions in its 39th Report as well as 42nd Report will be of no avail to the regard as having been made only for the purpose of removal of doubts and clarifying or declaring the existing legal position. If therefore, the sentence of imprisonment for life is nothing but rigorous imprisonment for life can be and is being legally executed I carried out in one of the jails in the country in the use of the petitioner there will be no question of releasing him forthwith simply because he has served 14 years of rigorous imprisonment (inclusive of remissions) in the absence of an order of commutation passed by the State Government either under Section 55 of the I.P.C. of Section 433(b) of Cr.P.C. 1973. The petitioner is therefore, not entitled to the relief sought by him.

5. From the rival contention urged by counsel on wither side as summarised above it will appear clear that the entire edifice of the petitioners claim for immediate release from jail custody is based on two premises : (a) in executability of the sentence of life imprisonment (formerly called transportation for life) in jails through the Officer-in-charge thereof under the existing law and (b) undefined nature of punishment to be suffered under the sentence of life imprisonment which is not necessarily rigorous, but because he was made to undergo his sentence of life imprisonment in jails and that too in rigorous manner for more than 14 years (inclusive of remissions) his sentence should be deemed to have been commuted by the State Government either under Section 55 I.P.C. or under Section 433(b) Cr.P.C. 1973 without a formal order in that behalf and he be released forthwith. The question is whether the two premises on which his claim to immediate release rests are valid

6. On the question whether a sentence of transportation for life could be executed in jails within the country or, the same was executable only beyond the seas, the position in our view, has been clearly enunciated by the Privy Council in Pt. Kishori Lals case (AIR 194 PC 64) (supra). After considering the history of the sentence of transportation, the relevant provisions of the Penal Code the criminal P.C. and the prisoners Act the Privy Council came to the conclusions that the said provisions clearly showed that a sentence of transportation was not necessarily executable beyond the seas. It observed at page 66 of the Report thus :-

"These sections make it plan that when a sentence of transportation has been passed it is no longer necessarily a sentence of transportations beyond the seas. Nowhere is any obligations imposed on the Government either of India or of the provinces to provide any places overseas for the reception of prisoners. It appears that for many years the only place to which they have been sent is place to which they have been sent is the Andaman Islands are now in Japanese occupation. Their Lordships have been referred to various orders and directions of an administrative and not a legislative character showing what prisoners are and are not regarded as fit subjects for transportation thereto, and shoeing also that now-a-days only such of those prisoners sentences to transportation as may volunteer to undergo transportation overseas are sent to those islands. But at the prescient day transportation is in truth but a name given in India to a sentence for life and in a few special cases, for a lesser period, just as in England the term imprisonment is applied to all sentence which do not exceed two years and penal servitude to those of 3 years and upwards. So in India a prisoner sentenced to transportation may be sent to the Andamans or may be kept in one of the jails in India appointed for transportation prisoners."

However, counsel for the petitioners made a brave attempt of course in all humility to submit that the provisions of law referred to by the Privy Council for basing its aforesaid conclusion do not warrant the sad conclusions and with a view to canvass his submission he elaborately dealt with and took us through the various provisions of the Penal Code, Criminal P.C. and the prisoners Act. On giving our careful and anxious consideration tot he matter we have come to the conclusion that it is difficult to accept counsels submission.

7. Counsel pointed out that great reliance was placed by the Privy Council on Section 58 of the Penal Code, which was in force them (since repealed by Amending Act 26 of 1955) but urged that the section merely provided for the temporary or transitory detention and treatment of the offender in local jail pending his depression beyond the seas and therefore that provisions could not be relied upon for coming to the conclusion that transportation prisoners could be confined in local jails for undergoing their entire sentence, It must however, be pointed out that the Privy Council has not reaching its aforesaid conclusions. In fact in that behalf it has observed. :

"Were these (Sections 53, 55 and 58, I.P.C.) the only statutory provisions dealing with the matter there would be much force in the argument that Section 58 should be read as providing merely for the temporary or transitory detention and treatment of an offender while arrangements were being made for his transportations beyond the seas",

and has not merely gone into the history of the sentence but also indicted the other provisions of Criminal P.C. 1898 and the Prisoners Act 1900 which supported its conclusion. In other words it realises the fact that Section 58 I.P.C made provisions for a transitory period of be taken long with other statutory provisions it helped to reach the conclusions that transportations prisoners were not necessarily required to be sent beyond the seas and in that behalf it relied upon Section 363(2) Cr.P.C. 1898 and particularly certain provisions like Sections 29, 31 and 32 of the prisoner Act 1900 as amended in 1903 which in its opinion were decisive on the point. AS we shall point out presently the other statutory provisions read with the orders of administrative character issued from time to time by the State Government to which a reference has also been made in the judgment do support the conclusions reached by it.

8. It may be pointed out - and this was not even disputed by the counsel; for the petitioner - that even prior to the coming into force of the Amending Act 26 of 1955 (i.e. prior to 1-1-1956) all prisoners sentenced to transportations for a term or years of life were not invariably deported to the overseas penal settlement in the Andamans but transportations prisoner were divided into two categories, namely those who were eligible for deportation and those who were not (who generally included convicts suffering from specified diseases or infirmities) and only the former were transported to and confined in one or the other jails with in the country under Section 32 of the Prisoners Act of 1900 and in course of time their cases were referred to State Government for passing an order under Section 55 I.P.C. or Section 402 Cr.P.C. 1898 which was within the direction of the State Government. Reference in this behalf may be made to Section 32 of the Prisoners Act 1900 and para 719 of Punjab Jail Manual. Section 32 of Act III of 1900, which specifically deals with persons under sentence of transportation (now applicable to persons sentenced to imprisonment of life) runs thus :-

"32. Appointment of places for confinement of persons under sentence of transportation and removal thereto-(1) The State Government may appoint places within the State to which persons under sentence of transportation shall give orders for the removal of such persons to the places so appointed, except when sentence of transportation is passed on a person already undergoing transportation under a sentence previously passed for another offence.

(2) In any case in which the State Government is competent under sub-sec. (1) to appoint places within the States and to order the removal thereto persons under sentence of transportation the State Government may appoint such places in any other State by agreement with the State Government of that State and may be like agreement give orders or duly authorise some officer to give orders for the remove thereto of such persons".

Under this provisions the State Government has been empowered to appoint places with in the state and places in other States with their consent, where transportation prisoners could be lodged for undergoing their sentences. It is obvious that the expressions confinement occurring in the marginal note of the section means the prisoners detention in the place for the purpose of executing or carrying out their sentence.

9. Counsel for the petitioners strenuously urged that the places envisaged for confinement of transportation prisoners under Section 32 of the Prisoners Act 1900 could not be some places in the jails but must be some places of places outside the jails. In other words the contention was that under the power for confinement of transportations prisoners the State Government cannot appoint jails as the places for their confinement. We fail to appreciate as to why such a qualification or limitation on the power of the State Government under Section 32 should be read into the section. Having regard to the unqualified and clear language of the section there is no reason why the State Governments can not appoint jails as the "places" for confinement of transportation prisoners. Counsel relied upon two decisions of Lahore High Court in Kundan Lal v. Emperor, AIR 1931 Lahore 353 and in Re : Khairati Ram, AIR 1931 Lahore 476 to support his contention but in our view neither of these decisions lays down anything as suggested by Capsule. In both the case the Court was concerned with the question as to where should an approver to whom pardon has been tendered under Section 337 of Cr.P.C. 1898 should be kept during an inquiry or trial and all the the Lahore High Court has held is that he must be detained in judicial custody in prison which included a judicial lock-up and not in custody of the police and in both the cases a direction issued by the local Government under Section 154(1) of Cr.P.C. 1898 for keeping such approvers in Lahore Fort under police control was declared illegal and ultra vires. Neither of these decisions is an authority for the propositions that in the exercise of the power conferred under Section 32 of Prisoners Act 1900 the State Government cannot constitute or appoint jails within its territory as the "places" for confinement for transportation prisoners. Moreover as we shall point out the later Para 719 of the Punjab Jail Manual clearly shows that by several Notifications or orders issued by the Punjab Government certain local jails within the Province have been constituted the places under Section 32 of the Act confinement of transportations prisoners. It is thus clear that under S. 32 of Act III of 1900 a sentence of transportation either for a term or for life could be and a sentence of life imprisonment can be executable in local jails by constituting such jails as the places within the meaning of Section 32 under orders of the State Governments.

10. Apart from Section 32 of the Prisoners Act Section 383 of Cr.P.C. 1898 and Section 418 of Cr.P.C. 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails. Both the sections appear in a chapter dealing with Execution of Sentences under the respective Codes and are identically worded and each one provides that where the accused is sentenced to imprisonment for life the court passing the sentence shall forthwith forward the warrant to the jail or other place in which he is or is to be confined and unless the accused is already confined in such jails or other places with the warrant. It is obvious that the confinement to the convict in the jail pursuant to the Courts warrant issued under the section is for the purpose of executing carrying out of the sentence. The proviso, to sub-section (1) of Section 418 and sub-section (2) of Section 418 makes this position abundantly clear that the expression confinement has been used in the sence of execution or carrying out of the sentence. Some arguments based on the concerned Forms of Warrant of Commitment prescribed under both the Codes (of 1898 and 1973) was made by counsel for the petitioners but it is obvious that non-prescription of appropriate Forms of Warrant of Commitment would not affect the legality of the detention in local jails so long as the requisite legal authority and power in that behalf is vested in the Criminal Court. Moreover the Forms prescribed under the Codes cannot be regarded as exhaustive and the appropriate Warrant of Commitment directing the execution of carrying out of sentence of life imprisonment in jail could be adopted and issued by the Court so long as in law the requisite authority and power in that behalf is vested in court.

11. Para 719 of the Punjab Jails Manual as published in 1916 ran thus :-

"719 Places of confinement for transportation prisoners. - Every prisoner sentenced to transportation for a term or for life if ineligible for deportation to the Andamans shall be transferred to and confined in one one other of the following jails which are constituted places for the detention of transportations prisoners within the Punjab, under Section 32 of Act III of 1900 namely :- The Lahore Borstal Central Jail and the Central Jails at Lahore, Montgomery and Multan, the District Jails at Ambala, and Multan and the Lahore Female Jail".

In the margins reference has been given to several Notifications of Punjab Government specifying the jails named in the paragraphs. It appears that Para 71 itself was amended some time later (when it was done counsel was unable to state but presumably before transportation for life) and the words if ineligible for deportation to the Andamans were appearing in Punjab Jail manual published in 1975 runs thus :-

"719 Places of confinement for Transportation Prisoners - Every prisoners sentenced to transportation for a term of years of for life, shall be transferred to and confined in one or other of the following jails which are constituted places for the detention of transportations prisoners within the Punjab, under Section 32 of Act III of 1900 namely :- The Central Jails at Ambala and Ferozepur the Borstal Institution and Juvenile Jail, Faridkot, womens section, District Jail, Ludhiana in the case of women prisoners and District Jail, Delhi."

Here also in the margin reference is given to various Government Notification specifying the jails named in the Paragraph. It will thus appear clear that since after the deletion of the words "if ineligible for deportation to Andamans" in the Para 719 so far as the Punjab is concerned no transportations prisoners was deported overseas and all transportations prisoners were detained and confined in local jails which were the appointed places envisages under Section 32 of Act III of 1900. It is thus clear that the in course of time the sentence of transportation either for a term or for life become executable in jails within the country and the same position must obtain in regard to persons sentenced to imprisonment for life on and after 1-1-1956 in view of Section 53A, I.P.C. inserted by the Amending Act 26 of 1955. The first premises on which the petitioners claims to immediate release rests is thus not valid.

12. As regards the nature of punishment required to be suffered under the sentence of imprisonment for life (substituted for transportation by the Amending Act 26 of 1955), Counsel for the petitioner urged that its nature not having been defined anywhere, it cannot be equated to rigorous imprisonment for life. The argument was that the Amending Act 26 of 1955 did not change the nature of the punishment required to be suffered under either and like the sentence of transportation for life the sentence of imprisonment fore life remains distinct from the punishment enlisted at item Fourthly in section 53 I.P.C. Counsel pointed out that both the Penal Code as well as the Criminal P.C. (of 1898 as well as of 1973) a distinction has been maintained between imprisonment for life and imprisonment for a term and it is only the latter which can be either rigorous or simple depending upon the Courts direction given at the time of sentencing the accused under Section 60, I.P.C. and there is nothing either in the Penal Code or Procedure Codes which indicates that imprisonment for life is not possible to accept this contention for the reason which we shall presently indicates.

13. In the first place, implicit in the arguments so advanced by counsel for the petitioner is that acceptance of the position that the earlier sentence of transportation for life and the substituted sentence of imprisonment for life are similar as regards the nature of punishments required to be suffered by the convict under either. If therefore, there is sufficient statutory material or material having the force of law to show that the sentence of transportation wither for life or for a term involved exaction of hard labour from the convict while undergoing the sentence the contention must obviously fail. It is well known that transportation to overseas penal settlement always implied hard labour settlements always for the concerned convicts and hence deportation beyond the seas popularly called Black water; was the most dreaded punishments in India not without reason. Section 59 of the Prisons Act 9 of 1894 - an enactment made for amending the law relating to prisons with a view to prescribe uniform systems of prisons management in India, initially conferred power on the Governor General in Council and later since 1937 confers power on the State Government to make rules consistent with that Act, in under Clause (14) thereof rule could be made for classifying and prescribing the forms of labour and regulating the periods of rest from labour" and it appears that requisite rules in that behalf of have been made by the authorities on whom the power had been or has been conferred. Counsel for the respondent has referred us to Andamans and Nicobar manual a Government of India publication of the year 1908 which contains several rules, regulations and orders governing the Management and Control of the Penal Settlement at Port Blair and Nicobar Islands, Section 1(2) of the Manual states that the Penal Settlements of Port Blair and Nicobar islands have been specifically appointed as the places within the meaning of Section 33 of Prisoners Act 5 of 1871 which is equivalent to Section 32 of Prisoners Act 3 of 1900 and term as well as life convicts are permitted to be transported to them while Section 1(3) states that the barracks and other palaces used for the confinements of prisoners at Port Blair have been declared prison for the confinements of convicts sentenced to the penal servitude. Chapter II deal with classification of convicts and section 17 is very important which runs thus :

"17. (1) By Section 34 Act V of 1871 the governor General in Council may from time to time prescribe rules as to the classification of transported convicts.

(2) The rules so sanctioned by the Government of India for the classification of convicts are comprised in the following orders ......

(3) Transportation entails hard labour under strict discipline with only such mitigation of the above is an indulgence which may at any time be withdrawn in whole or in part."

Sub-cl (3) of Section 17 in substance gives the interpretation of the expressions transportation and in terms states that transportation means hard labour under strict discipline subject to such indulging as may be granted or withdrawn from time to time. Sections 24 and 25 provides for classification and grades of prisoners on the arrival in the Penal Settlement. Section 146 which prescribed hours of labour says that the hours of work are regulated by the Superintendent and they shall ordinarily consist of 9 hours daily including the time of going to and returning from work as far as practicable. These provisions of the Andaman and Nicobar Jail Manual clearly bring out the fact that the sentence of transportation either for life or for a term inexorably meant rigorous imprisonment in the sense of exaction of hard labour from the convict. This position has been judicially noticed and accepted by the Privy Council in Pandit Kishori Lals case (AIR 1945 PC 64 [LQ/PC/1944/47] ) (supra) where while elaborately dealing with the history of the sentence of transportation the Privy Council has clearly observed that both in England and in India transportation prisoners when deported beyond the seas were subjected to conditions of hard labour strict discipline. Relying on Section 58 I.P.C. and other statutory provisions the Privy Council also concluded that even when it was made to suffer inside a local jail within the country transportation meant rigorous imprisonment. Therefore, on counsels own arguments the two being similar in nature the sentence of imprisonment for life must mean rigorous imprisonment for life.

14. Secondly by the Amending Act 26 of 1955 a new Section 53A has been added to the I.P.C. which in our view clinches the matter beyond any doubt because sub-sec. (2) read with sub-sec. (1) of Section 53A, I.P.C. thereof affords a clear indication by necessary implication that a sentence of imprisonment for life must be regarded as equivalent to rigorous imprisonment for life. It is obvious that Section 53A in in the nature of an Interpretation Clause for in terms it deals with the how a sentence of transportation for life or for a term should be construed in penal jurisprudence. Sub-section (1) provides that any reference to transportation fore life in any other law for the time being in force or in law instrument or order having effect by virtue of any such law or of any enactment repealed, shall be construed as a reference to imprisonment for life Sub-section (2) runs thus :-

"(2) In every case which a sentence of transportation for a term has been passed before the commencement of the Code of Criminal Procedure (Amendment) Act 1955 the offender shall be sentenced to rigorous imprisonment for the same term."

Under this provision Parliament has expressly stated that a sentence of transportation for a term has to be executed or carried out as if it were a sentence of rigorous imprisonment for the same term. If transportation for a term has been equated to rigorous imprisonment for the same term by necessary implication the sentence of transportation for life now substituted by imprisonment for life which is awardable for more serious or more grave or more heinous crimes must mean rigorous. Counsel not be anything but rigorous pointed out that sub-sec (2) only deals with a sentence of transportation or imprisonment for life and that the provisions is applicable to only sentence of transportation for a term awarded prior to 1-1-1956. This is undoubtedly true but that would not affect the question whether the provision gives the requisite guidance on the nature of punishment intended to be inflicted on the convicts tended to be inflicted on the convicts sentences to imprisonment for life and such guidance is clear by necessary implication. In our view the legislative intent has been clearly spelt out and expressed that the nature of punishment required to be suffered under a sentence of imprisonment for life awardable on and after 1-1-1956 is rigorous imprisonment.

15. That this is how Section 53A(2) of I.P.C. was constructed by this Court is clear from the decision in Gopal Godses case (AIR 1961 SC 600 [LQ/SC/1961/11 ;] ) (supra). Facts of that case shortly stated were these Gopal Godse was sentenced to transportation for life by a Judge of the Special court Red Fort, Delhi, on 10th February, 1949. After undergoing 20 years rigorous imprisonment together with the remission, he challenged the legality of his continued detention, claiming that he had served his sentence and was therefore, entitled to be released. One of the question posed by the Court for its determination was :

"Whether the petitioner (Gopal Godse) who was sentenced to transportation for life (and whose sentence had not been commuted under Section 55 of the I.P.C. or under Section 402(1) Cr.P.C.) could be dealt legally as if he were a person sentenced to rigorous imprisonment "

after approving the Privy Council decision in Pandit Kishori Lals case (AIR 1945 PC 64 [LQ/PC/1944/47] ) (supra) which was based on Section 58 I.P.C. and other statutory provisions, this court answered the question in the affirmants solely basing its conclusion on the provision contained in Section 53A(2) a provision added by the Amending Act 26 of 1955 withe effect from 1-1-1956. After setting out the provision the Court observed thus :

"Whatever justification there might have been for the contention that a person sentenced to transportation could not be legally made to undergo rigorous imprisonment in jail in India except temporally till he was so transported subsequent to the said amendment there is none. Under that section a person transported for life or any other term before the enactment at the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term."

It may significantaly be pointed out that Gopal Godses sentence of transportation for life had been passed on 10th February 1949 i.e. prior to the coming into force of the Amending Act 26 of 1955 and the question had been come up for consideration before the Amending Act had come into force whereunder the sentence of imprisonment for life had been substituted for transportation with the result that this Court had to and did rely on Section 53A(2) for its conclusion. In other words, this Court ion that case equated the sentence of transportation for life (which continued as imprisonment for life on had after 1-1-1956) to rigorous imprisonment for life.

16. It may be pointed out that even thereafter there is no dearth of judicial precedents where in the matter of nature of punishment, imprisonment for life has been regarded as equivalent to rigorous imprisonment for life. In State of Madhya Pradesh v. Ahmadulla, AIR 1961 SC 998 [LQ/SC/1961/30] this Court after reversing the judgment of acquittal record by the High Court on a charge of murder imposed the following sentence :-

"But taking into account the fact that the accused has been acquitted by the Sessions Judge - an order which was afraid by the High Court - we consider that the ends of justice would be met if we sentence the accused to rigorous imprisonment for life."

Again in the celebrated case of K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605 [LQ/SC/1961/372] (second Nanavati case) the Bombay High Court had sentenced the accused expressly to rigorous imprisonment for life and this Court while dismissing the appeal upheld the sentence as being correctly awarded.

17. During the hearing our attention was invited to a decision of the Kerala High Court in Mathammal Saraswathi v. The State, AIR 1957 Ker 102 [LQ/KerHC/1957/62] where that High Court has taken the view that while passing the sentence of imprisonment for life a Criminal Court should keep in view the provisions of Section 60 of I.P.C. and choose one or the other from so as to clarify the exact nature of punishment intended to be inflicted on the accused and went on to clarify the position by stating that the imprisonment for life in that case shall be simple imprisonment and not rigorous. It is not possible to sustain the aforesaid view of the Kerala High Court. In the first place, a distinction between imprisonment for life and imprisonment for a term has been maintained in the penal code in several of its provisions. Secondly by its very terms Section 60 is applicable to a case where an offender is punishable with imprisonment which may be of wither description and it is only in such case that not is competent for the court to direct that "such imprisonment shall be wither wholly rigorous or wholly simple or that any part if such imprisonment shall be rigorous and the rest simple." And it is clear that whenever an offender is punishable with "imprisonment which may be of either description" in other words Section 60 would be inapplicable.

18. However, for the reason discussed above and in view of the authorities pronouncements made by the Privy Council and this Court in Pandit Kishori Lals case (AIR 1945 PC 64 [LQ/PC/1944/47] ) and Gopal Godses case (AIR 1961 SC 600 [LQ/SC/1961/11 ;] ) respectively it will have to be held that the position in law as regards the nature of punishment involved in a sentence of imprisonment for life is well settled and the sentence of imprisonment for life has to be equated to rigorous imprisonment for life. In this view of the matter the recommendation of the Law Commission contained in its 39th and 42nd Reports suggesting a suitable amendments in the Penal Code will have to be regarded as having been made only for a purpose of removal of doubts and clarifying or declaring the existing legal position. Presumably for that reason the suggested amendment has not been regarded as absolutely necessary and therefore not put through so far.

19. Having regard to the aforesaid discussion none of the grounds on which the petitioners claim to imitator release rested can be held to be valid and therefore, in the absence of any order of communication having been passed either under Section 55 I.P.C. of Section 433(b) of Cr.P.C. 1973 the petitioner is not entitled to be released. Rule is therefore discharged.

20. Petition rejected.