Holding

Section 428 CrPC applies only to persons sentenced to imprisonment for a term and not to life convicts, so the set‑off benefit is unavailable to them.

Summary

The petitioners, three life convicts incarcerated in Haryana, claimed that under‑section 428 of the Criminal Procedure Code the period of their pre‑conviction detention should be set off against their sentences, making them eligible for premature release under Para 516‑B of the Punjab/Haryana Jail Manual. The State Government had issued an order excluding life convicts convicted before 18‑December‑1978 from receiving such set‑off, which the petitioners challenged as illegal and violative of Articles 14 and 21. The Supreme Court examined whether the language of s.428, which speaks of a person "sentenced to imprisonment for a term", extends to those sentenced to imprisonment for life. It held that the statute clearly applies only to term sentences and that life imprisonment is a distinct category under both the IPC and the CrPC. Consequently, the benefit of the set‑off under s.428 is unavailable to life convicts, rendering the State's order valid. The writ petition was dismissed.

Issues considered

Whether section 428 of the Criminal Procedure Code applies to persons sentenced to imprisonment for life.
Whether the State Government's order denying set‑off of under‑trial detention to life convicts is contrary to law and the Constitution.

Legislation cited

Code of Criminal Procedure, 1973s. 421, s. 428, s. 432, s. 433-A, s. 433(b)
Indian Penal Code, 1860s. 304, s. 305, s. 307, s. 394, s. 45, s. 55, s. 57

Subjects

Section 428 CrPClife imprisonmentset‑off of under‑trial detentionpremature releaseremissionJail Manualconstitutional challengeArticle 32criminal procedure

Judgment

\'

445 A
kARTAR StNGH ANO OTHERS

v.

STATE OF HARYANA THROUGH INSPECTOR B
GENERAL QF PRISON, CHANDIGARH

August 26, 1982'
•
[V.D. TULZAPURKAR, BAHARUL lsLAM AND
R.B. MISRA, JJ.] c
Criminal Procedure Code-s. 428-App/icability to persons sentenced to
imprisonment for life-construction of.

•
Under s. 428. Cr. P.C., an accused perSQn sentenced to imprisonment for
a term is entitled to set oft' bis under-trial period of detention against the sen- D
tence imposed upon him.

The petitioners were life-convicts undergoing sentence in different Jails in
Haryana. Under _para 516-B of the Punjab/Haryalla Jail Manual they were
entitled to be considered for premature release on their completing 8-1/2 years of
·substantive impri~onment and 14 years of imprisonment including remissions.
According tri the petitioners, if.the period.of their unde_r-trial detention was added E
to their' total Period of imprisonment including remissions, the total detention
would exceed 14 years and thCir continued deterition·would be illegal. In Maru
Ram v: Union of India and Anr., [1981] 1 _S.C.R. 1196 it bad been held that the
mandatory minimum of 14 years' actual imprisonment specified ins. 433-A, Cr.
P.C., would not '.operate against those· 'lifers' 'YhoSe conviction by the court of
first instance had been entered prior to 18th December," 1978, and that they woula
bO entitled to consideration by Government f0r premature release on the strength F
of the remissions· earned under the relevant rules. The Government ofHaryana
had bY its Order dated 2nd "February, 1981, decided that the benefit of the period
of under-trial detention should not be given to lire-convicts who had been convic-
ted before 18th December, 1978. The petitioners submittCd that .the said order
was invalid for the reason that it wrongfully ..denied to the1n the benefit of the set
oO: contemplated under s. 428, Cr. P.C.
G
Counsel for the petitioners contended that cases of life-convicts would fal1
within the terms of s. 428 as :

(i) persons sentenced to imprisonment for life could be said to have
been sentenced to their life·term which under the provisions of the
Penal Code and Jail Manual was regard"ed as eqwivalent to 20 years H
or !4ye!ll'81
I

446 SU~REMil COURT Rffi;oRTS (1983] l s.c.ii.
A
. ..
(ii) . when remissions are actually granted to life-convicts their sentences
become imprisonments for. a term;

• (iii) when convicts other than life~convicts were entitled to the benefit ~
of the set off contemplated under the section there was ho reaSon
why life·convicts should be denied that advantage.

B
Dismissing the petition,

HELD: ·On a plain reading of s. 428, Cr. P.C., it is clear that the cases
of the petitioners, who have been sentenced to imprisonment for life, would not·
fall within the section, for, the section applies to an accused person who·has on
c conviction been sentenced to imprisonment for. a te~m. · [450 H; 451 A]

(b) A perusal .of Several sections of the Indian Penal Code as well as
Criminal Procedure Code would show that both the Codes make and maintain a
clear distinction between HjmprisoD.me.nt for life'' and "imprisonment
for a term"; in -fact, the two expressions "imprisonment _for life" and
"impi:isonment for a term" have been used in, contradistinction with each other
D in one and the satne section, where the former must mean imprisonment for the
remainder of the natural life of the convict and latter must mean imprisonment
for a definite or fixed period: Having regard to such distinction which is being
maintained in ·botb- the· Codes; it will be diffictilt to slur over the distinction on
the basis that life-convicts should be regarded as having been sentenced to a life.
term or to say that the two could be understood as irlterchangeable expressions
because, basically, the life-term of any accused 'is uncertain. Section 57. I.P.C.
E or the Remission Rules contained in Jail Manuals are irrelevanl in this context.
It is weJI settfed that a Sentence for imprisonment for life must be treated as
imprisonment for the whole of the remaining period of the convicted person's
natural life. [4_51 F-H; 452 D-E; 452 G; 453 A]

Kishori Lal v. Emperor; A.LR. [1945] P.C. 64; Gopal Vinayak Godse v.
The State of Maharashtra [1961] 3 S.C.R. 440; Maru Ram v. The Union of India
F and Anr. [1981] l S.C.R. 1196; and State of Madhya Pradesh v. Ratan Singh &
Ors.• [1976] Supp. S.C.R. 552, referred to. ·
. ,A
(c) An order nf remisSioo passed by the State Government or:_ by the Jail j
Authorities does not interfere with either the conviction or sentence recorded by·
the court which remains intact; it- merely affects the execution of· the ·sentence
passed by the Court and frees the convicted. person ~from his liability to undergo
G the full term of imprisonment and it is for this reason that an accused person bas
every right to press his appeal against the conviction. and sentence- impo,ed upon
hini, full I-emission notwithstanding. Moreover, S. 428, opens with the words
"where an accused person has, on conviction, been sentenced to imprisonment for
a term" and as such the section will,.come into play in cases where "imprisonm~nt
for a term 0 . is awarded on conviction· by a .court and not where tbe convict's
H sentence becomes a sentence for a term on remission being granted by the
Executive. [453 C-F]- •
KARTAR SINGH v. HARYANA (Tulzapurkar, J.) 447
'
P!fllawwa v. The State of Mysore: A.LR. 1959 Mysore 116, approved. A
(d) The question is Dot wh~ther the beneficent provisiOn should bC ~xten-
ded to life-conv_icts on a priori reasoning or equitable consideration but whether
on. true construction the section comprises life-convicts within its purview and on
construction it is not possible to hold that it does. The objects and reasons for
iotr0dul;'.ing s. 428 anew in the Code, as set out by the'. Joint Committee in its·
Report, clearly show 1hat cases of life-convicts were'never'i~tended to be cov~red .B
by the provision. [453-G; 454-A-B] - ' -

Ka/idas Vanmalibharv. State of Gujarat·& ;lnr., (1980] 21 G~i- Law-Repor-
ter, 7, overruled .
•
KQnthalot Karunan &others v. State of Kergla,(1915) K.L.T. 147: Rajahusein
Gu/amhusein Lakhani v. The S~ate of Maharashtra ,(1976) Crl. LJ. 1294; Rafiq
c
Abdul Rehman v, The State of Maharashtra, (1978) Cr.I. L.J. 214 and Bhimsen
v. The State of Rajasthan 1977Crl. L.J, 696, ·approved.

ORIGINAL JuRiSDICTION: - Writ Petition (Cr!.) No. 3226 of
1981.
D
(Under Article .32 of the Constitution of India)

R.C. Kohli for the Petitioners.

KG. Bhagat and R.N. Poddar for the Respondent.
E
. The Judg~ent of th!' Court was delivered b_y

F

H
(I) [198lJ I SCR _1196.
448 SUPREME COURT REPORTS i.1983} l s.c.R.

A has held the section to be prospective in effect, that is to say, the
mandatory minimum of 14 years' actual imprisonment specified
therein will not operate against. those whose cases were decided by
the trial court before· 18th December, 1978 when the section came
into force and that all 'lifers' whose conviction by the court of the
• first instance was entered prior to that date would be entitled to
B consideration by Government for pre-mature release on the strength
of the· remissions earned under the relevant rules and according to
them under Para 516-B of the Punjab/Haryana Jail Manual life
convicts below the age of 20 at the da\e of their conviction arc
entitled to be consiqered for pre-mature release on their completing
6 years of substantive imprisonment and 10 years of imprisonment·
c' including remissions while life convicts above the age of 20 at the
date of their conviction's are entitled to be considered for premature
releas,e on their completing 8lo,;years of substantive imprisonment
and 14 years of imprisonment including remissions. The petitioners
say that their case falls in the second category and according to them
they are entitled to be considered for premature release. if to their
D total period of imprisonment inclusive of remissions is added the
period of their under-trial' detention (which in the case· of the first
two petitioners is 612 days and in the case of the third petitione"r is
2 years 1 month and 14 days) as on such reckoning tlie total deten-
tion exceeds 14 years and their continued detention is illegal ; but
E. the Respondent State has issued an Order No. 1953/59/Gl/G 3/T-19
(II) dated 2nd February, 1981 to all Jail Superintendents ip the
State whereunder instructions have been issued that for the purpose
of considering cases of pre-mature release whiJe calculating 8-1/2
years substantive sentence and 14 years imprisonment including
remissions the benefit of under-trial period is not to be given to life
F convicts who have been convicted before !8th.December, 1978. The
petitioners have challenged the legality and/or validity of the said I'
Order as being contrary to law and yiolative of Arts. 14 a_nd 21 of
the Constitution. In substance the petitioners have contended that
the said Order illegally and wrongfully denies to life convicts the •
benefit of a set-off contemplated under sec. 421 Cr. P.C. and there·
G fore the petitioners have sought a mandamus directing the Respon-
dent State to consider their cases for release under Para -516-B of the ·
· Punjab/Haryana Jail Mlnual after giving them the benefit of said
set-off against their sentences.

' In the counter-affidavit filed on behalf of the Respondent
H
State the legal position· obtaining as a resul I of this Gourt's decisioq
, ,
KARTAR SINGH v. HARYANA (Tulzapurkar, J.) 449·

in Maru Ram's case (supra) has been accepted; similarly the effect
A
of Para 516- Bof the Punjab/Haryana Jail Manual as set out by .t~e
petitioners is also accepted. It is however, denied that the Order
No. 1953/59/Gl/G.3/T·l9(11) dateq 2nd February,-1981 is illegal or
invalid for any reason or is contrary to sec. 428, 9. P.C. It has
been ~ontended that the benefit of a set-off contemplated by sec. 428
B
Cr. P.C. is ·not available to life convicts bub is available to those·
convicts who have been S\lntenced to imprisonment for a term and
therefore far from being .contrary to any law the impugned order is
in accord with the provisions of sec. 428 Cr. P.C. and since the
periods of (heir under-trial detention are not to be reckoned or set
off against their sentences the petitioners' cases could not be said to
have become ripe for consideration for pre-mature release. Even
c
otherwise, according to the Respondent-State the petitioners' cases
have not become ripe for such consideration because the periods of
substantive or actual imprisonment, the. remissions earned and the
periods of under-trial detention as set out by the petitioners are not
correct. According to the Respondent-State in the case of K:artar D
Singh the net period of substantive or actual imprisonment is 6 years
9 months and 11 days, the remissions earned by· him amount to 4
years 5 months a!Jd 24 days, to· which even if the period of under-
trial -detention, which is 1·year 8 months and 4 days, is added the
total comes to 12 years, 11 months and 9 days and not 14 years as
required by Para 516-B of the Punjab/Haryana Jail Manual; in the E
case of Mukhtiar Singh the. net period of substantive or actual
imprisonment is 7 years, zero month and six days, the remissions ·
earned by him amount to 4 years, 7 months and JO days, to which
even if the period of under-trial detention which is 1 year, 8 moriths
and 4 days is added the totai comes to 13 years, 3 months and 20
qays and not 14 years as required by the said Para 516.-B; in the "F
case of Baljit Singh the net substantive or actual imprisonment under
· gone by him is 4 years, 9 months and IO days, the re nissions earned
by him amount to 3 years, 8 months, 11 days, to which even if the
period of under-trial detention which is 2 years, 1 month and 13
days is added the total comes to IO years, 7 months and 4 days and
not 14 years as required by the said Para 516-B. In any event,
therefore, none of the petitioners is entitled to have his case consi-
d~red for pre-mature release and therefore the ·petition is liable to
be dismissed.

Since tlie legal question touching the proper construction c;>f
H
450 SUPREME COURT REPORTS [198311 s.c.a.
A sec. 428 Cr. PC. was argued at length by counsel on either side at
the Bar we have decided to address ourselves to that question without
getting lost in the factual dispute as t.:i whether even after reckoning
the periods·of their under· trial det~ntfon the petitioners are or are
not entitled to have their C!l;ses considered by the State Government
B for pre-mature release under Para 516-B of the Punjab/Haryana Jail
Manual. In other words for the purpose of deciding the q'uestion
· we shall proceed on the assumption ihat factually if the periods of
their under-trial detention are taken into ac~ount the petition~rs
would be entitled to have their cases considered for premature
release. The question is whether even on such assumed factual basis
a the petitioners are in law_ e.ntitled to get a set dff of the said periods
against their sente.nces under sec. 428 of the Cr. P.C. and if so, whe-
ther the impugned Order dated 2nd February, 198·1 issued by the
Respondent-State is il)egal or invalid. i
-·

At the outset it may be stated that the impugned Order dated
D 2nd February, 1981 is challenged as contravening sec. 428 but the •
constitutional validity of sec. 428 itself bas not been challenged.
Admittedly all the tliree petitioners have been convicted under sec.
302, IPC and have been sentenced to imprisonment for life and the
question is whether sec. 428 Cr. P.C. is applicable to them. Sec. 428
runs thus: '
E
428. Period of detention undergone by the accused.to be
set ofl against the sentence of imprisonment.'

· Where an accused person bas. on cpnviction, been
sentenced to imprisonment for a term; the pefiod "of
p
. detention; if any, undergone by him during the investi-
gation, inquiry or trial of the same case and before the
· date-of such conviction, shall be set off against the term
of imprisonment imposed on him on such conviction,
and the liability of such person to undergo· imprison-
ment on such conviction shall be restricted to· the
G remainder, if any of the term .of imprisonment imposed
on him.

On a plain reading of the aforesaid provision it will be clear that the
cases of the petitioners, who have been sentenced to imprisonment
H for life, would not fall within the sectio11, for, the section applies to
an accused person who bas on conviclion, been sentenced to imprison-

'-.
KARTAR SINGH v. HARYANA (Tulzapurkar, J.) 451

ment for a· term ·and it is· only in cases of such persons who have.
been sentenced t,;-imprisonnient for a term that the period of th~ir
nndcr-trial detention has to be set off against tho term of tfie impri-
_) sonment imposed upon them and the .liability. of such perso~s to
undergo imprisonment has to be restricted to the remainder, if any,
imposed upon them. Counsel for the petitioners, however, raised a
two fold cont,ntion. In the first place, he contended that persons
B
sentenced to imprisonment.for life could be said to have been senten-
ced to their life term which under the pr9visions ohhe Penal Code
·(section 57) and Jail Manuals (Para 716-B) are· regarded as equiva-
lent to 20 yea~s or 14 years and as s~ch cases of life convicts would
fall Within the terms of sec: 428. Secondly, in any event when
remissions are act.ually granted by the State Government under sec.
c
432 Cr. P.C. or by the Jail Authorities under the relevant remission
rules contained in Jail Manuals· tp life convicts their cases should be
treated as falling within the purview of sec. 428, inasmuch as on the·
grant of remissions their.sentences become imprisonments for a term
and since in the instant case each .one of the petitioners has been· D
granted remissions each is entitled ,to have.the benefit of the set off
mentioned in sec. 428 of the Cr. P.C. and consequently the impugned
order of 2nd February, 1981 issued by the Respondent Sta:te would
be illegal ·or il)valid as contravening the section. To 'support his
; '
contention Counsel relied upon a docision of the Gujarat High Court
in the case of Kalidas Vanmalibhaio v. State of Gujarat and Anr.( 1) E
where that.Court has taken the ¥iew that a beneficent provision like
the·one contained in sec. 428 er: P.C. should be made available to
convicts sentenced to life imprisonment. It is not possible to
accept the submissions of Counsel f<?r the reasons which we shall
pres~ntly indicate. ·
F
\ . I
· In the first· place a ·perusal of several sections of the Indian'
Penal Code as well as Criminal Procedure Code will show that both
the Codes make and maintfin a clear distinction between imprison-
ment for life and imprisonment for a term; in fact, the t,,;o expres-
. sions 'imprisonment for life' and '.imprisonment for a term'· have
G'
been'used in contra-distinction with each.other in ~ne and the same·
section, where the former must mean imprison men! for the remain·
. der of the natural life of the convict (vi.de: definition' of 'life' in s. 45 "
l.,P.C:.) and the latter must mean imprisonment for a def\nite of fixed
H
(!) (1980) 21 Giij. Law Report~r. '/,
~ ~ '
452 . SUPREME COURT REPORTS [1983) I s.c.R.

A period. For instance sec. 304 I.P.C. provides that punishment for culp-
able homicide not amounting to murder shall be imprisonment for life ·
or imprisonment of either description for a term which may extend
to ten years'; section 305 provides.that punishment for abetment of a
suicide ofa child or insane person shall be 'death or imprisonment for
life or imprisonment for a term not. exceeding ten years'; section.307
B prdvides that punishment for an attempt to commit murder accompa-
nied by actual hurt shall be imprisonment for life or imprisonment of
either description which may·extend to ten years; so also, voluntarily
· causing hurt in committing robbery is punishable under sec. 394
with imprisonment for life or with rigorous imprisonment for a term
which may extend to ten years. Sec. 55 I.P.C. uses the two expres· <.
c sions in contra-distinction with each other and says that an appro-
priate Government may in every case in which sentence of imprison-·
ment for life shall have been passed commute the punishment for
imprisonment of either description for a term not exceeding fourteen·
years; similarly, section 433(b) Cr. P.C. uses the two expressions in
contra-distinction with one· another. Having regard to such distinc-
D tion which is being maintained in both the Codes it ~ill ,be difficult
to slur over the distinction on the basis that life convicts should be .
regarded. as having been sentenced to life-term or to say that the two
could be understood as interchangeable expressions }"cause basically
the life term of any accused is uncertain. Further, sec. 57 I.P.C. or
._the Remission Rules contained in. Jail Manuals (e.g. Para 516-B of
E
Punjab)Haryana Jail Manual) are irrelevant in this context. Section
57 I.P.C. provides that imprisonment for life shall be reckoned as
equivalent to imprisonment for twenty years for the specific purpose
mentioned therein, namely, for the purpose of calculating fractions
of terms of punishment and not for all purposes; similarly Remis-
F sions Rules contained in Jail Manuals· cannot override statutory pro-
visions contained in the Penal Code and the sentence of imprison-
ment for life will have fo be regarded as a sentence for the remainder
of the natural life of the convict. The Privy Council in Randit
Kishori La/'s(') case and this Court in Gopa/ Godse's(') case. have
G settled this position once and for all by taking the view that a sen-
tence for transportation for life or.imprisonment for life must be
treated. as transportation or imprisonment for the whole of the

H (I) A.LR. 1945 PC 64.
(2) AIR 1961 SC 600.~[196113 SQR, 44C,

\
•.

ICARTAR SINGH v. iJAll\'ANA (Tulzapurkar, J.} 453

,remaining period of the, convicted person's.natural life. This view A
has been confirmed and followed by this Court in two subsequent
decisions-in·Ratan Singh's(') case and Maru Ram'! case (supra).
In this view of the matter life convicts would not fall within the
purview of sec. 428, Cr. P.C.

The next submission that at least cases of life convicts who n
have been ac.tually granted remissions either by the State Govern-
ment under sec. 432 Cr. P.C. or by Jail Authorities under the rele-
vant Remission Rules should be treated as falling within the purview
i>f sec. 428 because on the grant of remissions, their sentences become
sentences of imprisonment for a term is also without any substance.
· The argument is fallacious for two reason~. In the first place, an c
order of remission passed by the State Government or by' the Jail
Authorities does not interfere with either the conviction ·Or sentence .
recorded by the Court which remains intact; it merely affects the
execution 'of the sentence passed by the Court and frees the convic-
ted person from his liabilhy to undergo the full term of imprison-
D
ment and it is for this reason that an accused person has every right
to press his appeal against the conviction and sentence imposed upon
him, full remissi~n notwithstanding. (Vide: Puttawwa v. The State
of Mys01e( 2 ) secondly, sec. 428 opens with the words: "Where· an
accused per~on has, on conviction, been sentenced to imprisonment
for a term" and as such the section will come Into play in cases
E
where 'imprisonment for a term' is awarded on conviction bY a court
and not where the convict's sentence becomes a sentence for a terin
on remission being granted by the Executive. In the latter case the
section on its own terms would be inapplicable •

. -.. The last submission has been that if convicts other than life- F
x.. convicts are entitled to the benefit of the set off under sec. 428, there
'· is no reason why life convicts should be· denied the advantage of this·
beneficial provision and in this behalf it was pointed out that such
an argument has found favour with the Gujarat High Court in
Ka/idas Vanmalibhqi's case (supra). In our view the question is
nofwhether the beneficient provision should be extended to life- ~
convicts on a priori reasoning or equitilble consideration but whether
,
U) (1976] Suppl. SCK 552.
(2) AIR 1959 Mysor~ 11~·.
H
454 SUPBEMB COURT REPORTS (1983] I S.C.B.
\
A on true construction the section comprises life convicts ~ithin its
purview and on construction it is not possible to hold that they do.
Moreover, if the objects and reasons for introducing sec. 428 anew
in the Code, .as set out by the Joint Committee in its Report are
taken into account, it will appear clear that cases of life convicts
were never intended. to be covered by th·e.provision. The Joint Comf
B mittee has stated the objects and reasons for introducing this provi-
sion in the Code thus :

"The Committee has noted the ·distressing fact that in
many cases accused persons are kept in prison·for a very long <
period a's upder-trial prisoners an~ in some cases the sen-
• c tence of imprisonment· ultimately awarded is a fraction of
the period spent in Jail as under-trial prisoner. Indeed, there
may even be cases where ~uch a person is acqui\ted. No
doubt, sometimes courts do take into account the period of
detention undergone as under-trial prisoner when passing •
D - sentence and occasionally the senrence of imprisonment is
restricted to the period already undergone. But this is· not
always the case so that in many cases, the accused person is
made to suffer jail life for ·a period out of all proportion to
the gravity of the offence or even to the punishment provided
in the statute. The Committee has also noted that a large
E number of persons in the overcrowded jails of today are
under-trial prisoners. 'The new clause seeks to remedy this
unsatisfactory state of affairs."

It is obvious that the mischief sought to be remedied has no rele-
F vance where gravity of offence requires the imposition' of impri~on
ment for life.

Having regard to the above discussion, it is clear that the bene-
fit of the set off contemplated by sec. 428 Cr. P.C. would n'ot be
G available to life convicis. In our view, the decision of the Gujarat
High Court in the case of Kalidas .Yanma/ibhai is erroneous and the
contrary view taken by Kerala High Court in Kanthalot Karunan &
others v. State of Kera/a(') by Bombay High Court in Rajahusein
Gulamhusein Lakhani v. the State of Maharashtra,(') Rafiq Abdul •·
H
" . (1) (1975) KLT 137.
IZ) (1978) CRL. t;.J. 214.
KARTAR SINGH v. HARYANA (Tu/zapurkar, J.) 455

Rehman v. The State of Maharashtra(') and by Rajasthan High Court A
in Bhimsen v. The State of Rajasthan( 2 ) is correct. in this view of
the matter, the impugned order dated 2nd February, 1982 passed by
the Respondent-State, being in conformity with sec. 428 Cr. P.c.; i~
perfectly legal and valid.

In the result, the writ p~tition is dismissed. · B
H.L.C. Petitions dismissed.
'

,.
.)

:\ '\

;.
,·

•
(I) 0976) Cr. L.J. 1294.
(2) (1977) Cr. L.J. 696.