IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

   PRESENT:

Mr. Justice Surendra Kumar Sinha, Chief Justice

Mr. Justice Syed Mahmud Hossain Mr. Justice Hasan Foez Siddique Mr. Justice Mirza Hussain Haider

CRIMINAL APPEAL NOs.15-16 OF 2010.

(From the judgment and order dated 29.10.2007 & 30.10.2007 passed by the High Court Division in Death Reference No.127 of 2003 with Criminal Appeal No.3895 of 2003 and Jail Appeal No.739 of 2003.)

Ataur Mridha @ Ataur:  Appellant.

(In Crl.A.No.15 of 2010) Md. Anwar Hossain:  Appellant.

(In Crl.A.No.16 of 2010)

=Versus=

The State:

For the Appellants:

(In both the appeals

Respondent.

(In both the appeals)

Mr.  Khondaker  Mahbub  Hossain,  Senior )  Advocate,(with  Mr.  Mansurul  Huq

Chowdhury,  Senior  Advocate),  instructed

by  Mr.  Syed  Mahbubar  Rahman,  Advocate-

on-Record.

For the Respondents:  Mr.  Mahbubey  Alam,  Attorney  General, (In both the appeals)  (with Mr. Bashir Ahmed A.A.G) instructed

by  Mrs.  Sufia  Khatun,  Advocate-on- Record.

Date of hearing: 14th February, 2017. Date of Judgment: 14th February, 2017.

J U D G M E N T

Surendra  Kumar  Sinha,CJ.:  These  appeals  by  leave are  directed  from  a  judgment  of  the  High  Court Division  maintaining  the  death  sentence  of  convict appellants  Ataur  Mridha  @  Ataur  and  Md.  Anwar

Hossain. It also maintained the death sentence of Kamrul, non-appearing accused.

Victim Jamal was done to death on 16.12.2001 at about 8.30 pm while he was gossiping with Aftab Uddin (P.W.2), Md. Abdul Barek (P.W.4), Md. Yeamin (P.W.5) beside the road adjacent to Charabag Madrasha infront of the shop of Oliullah. According to the prosecution story, these three accused indiscriminately fired at the deceased causing his death instantaneously. The prosecution in support of its case has examined 15 witnesses, of them, P.Ws.2, 4 and 5 are eye witnesses. There is no inconsistency in their evidence as regards the time, the place and the manner of indiscriminate firing by the accused. The tribunal rightly found the appellants and another guilty of the charge under sections 302/34 of the Penal Code.

If the evidence of P.Ws.2, 3 and 5 is taken into consideration with the autopsy report of the victim, there is no doubt that their acts attract clause

‘Firstly’ of section 300 of the Penal Code, that is to say, culpable homicide is murder if the act by which the death is caused is done with the intention of causing death’. An intention to kill a person brings the matter so clearly within the general principle of means rea  is evident from the acts. Their acts were voluntary - they knew what they were doing and that they knew the consequence of their acts of indiscriminate firing. Once the intention to kill a human being is proved, the offence is murder unless one of the exceptions attract the case, in which case, the offence is reduced to culpable homicide not amounting to murder. It is true that intention is a question of fact but where intention is one of the essential elements of the offence, it is always necessary that there should be a definite finding as to whether the necessary guilty intention is or is not present. When a person has caused an injury on a vital organ of the victim the intent of killing can certainly be attributed to him. A

person’s intention can be gathered from his act, the nature of weapon and the manner of using the weapon. The court on assessment of the evidence comes to the conclusion that the offenders intent the natural consequence of their acts. The presumption that can be arrived at as regards the intention of the offender on consideration of the injury caused, the motive of the offender, the nature of the instrument used, the time and place of attack, the position and condition of the victim, the number of injuries, the causation of the act on the organ of the victim etc.

On the question of sentence, it is now established that the imposition of sentence to be commensurate to the nature of the offence committed and in that process no injustice is caused either to the accused and the victim. The trial court on scrutiny of the evidence was satisfied that the sentence of death is the appropriate sentence and the High Court Division agreed with the above view. Under the prevailing sentencing procedure, a death sentence

is the rule and the sentence of imprisonment for life is an exception, but under the Indian provision, the death sentence is awarded in ‘the rarest of rare case’ or in ‘extreme case’. There is no denial of the fact that in the absence of sentencing rules, this court noticed inconsistency in awarding sentence, be it minor or graver one. The inability of criminal justice system to deal with all serious crimes like murder equally, effectively and for want of uniformity in the sentencing process lead to a marked imbalance in the end result. When it is found from the evidence that the death was intentional, the accused used deadly weapon, the incident of murder is gruesome, barbaric and motivated, and there is no extenuating circumstance to award the minimum sentence, the court is bound to award capital sentence. Besides, in the present incident nobody had the opportunity ever to remotely imagine the amount of such ghastly incident.  

On realizing the quality of evidence adduced by the prosecution, Mr. Khondaker Mahaboob Hossain, learned counsel appearing for the appellants at the outset submits that he does not intend to press the appeal on merit, but seeks the commutation of sentence. He adds that in considering of the period the appellants have suffered in the condemned cell and of their young age, he left the matter at mercy of the court.

The philosophy of plea bargaining process has not developed in this country, but in developed countries it is one of the most effective process in the administration of criminal justice. In this process whereby an offender and the prosecutor reach a mutually satisfactory disposition of a criminal case subject to the approval of the court. When it is successful the process results in a plea agreement between the prosecutor and the offender and in the agreement the offender agrees to plead guilty without a trial. In consequence thereon the prosecutor agrees

to relinquish certain charges or make favourable recommendation of sentence to the court. Generally a court will authorize a plea bargaining if the

offender makes a knowing and voluntary waiver of his right to a trial, and if he understands the charge

and the maximum sentence he will receive - the court may award him the minimum sentence. But in all such cases the court may not accept the plea bargaining and may decline to accept the guilty plea if the charges have no factual basis.

This system is advantageous for both the prosecutor and the offender and the court as well. It saves valuable court’s time for high priority cases. Plea bargaining in this context is considered the offender’s reward for confession. Plea bargain results in a conviction because an offender pleads guilty as part of his agreement. Section 265E has been substituted for section 271 of the Code of Criminal Procedure. It provides that if the accused pleads guilty, the court shall record plea and may,

in its discretion, convict him. But in a charge of murder, it is the practice being followed for a long time that no such plea be accepted without examining the accused in order to find out whether he knows exactly what he is pleading to and it is desirable that sufficient evidence is recorded by the court so that the court may have something before it from which it can ascertain whether the plea is genuine and whether any extraneous circumstances exist.(Emperor V. Abdul Kader, 48 Crl. L.J. (SB) 329).

Huge number of cases like the one are pending trial all over the country for years together. The trial of those cases cannot be concluded for various reasons. Primary and main reason is lack of co- ordination between the prosecutor and the investigating agency. The prosecution fails to produce witnesses in time particularly the public witnesses. The second reason is the transfer of the officer after the lapse of time and the new officer

who takes charge of the case has to take time in grasping the facts. The substitution of a new officer in the court also takes time due to administrative barrier. The net result is that the principal offenders have to languish in hajot for a long time if not enlarged on bail. If the accused pleads guilty at the initial stage the court may take lenient view on the question of sentence but if he does not plea guilty, his ultimate sufferings entail both hajot and sentence.

Section 367 of the Code of Criminal Procedure provides the language and contents of judgment, the offence of which and the section of the Penal Code and other law under which the accused is convicted and if there is doubt under which of two sections of Penal Code the offence falls, the procedure to be followed have been provided therefor. Sub-section (5) of section 367 has been substituted by Ordinance No.LIX of 1978. Under the present provision, if the accused is convicted for an offence punishable with

death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the court shall in its judgment state the reasons for the sentence awarded. The language of the provision clearly suggests that the sentence of death is the normal penalty and a lesser sentence can be passed when there is any extenuating circumstance. Section 302 of the Penal Code provides two sentences, ‘death’ or ‘imprisonment for life’.

 In India section 354 has been substituted for section 367 and the corresponding sub-section (5) of section 367 is sub-section (3) of section 354. It provides that ‘when the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence’. The words ‘in case of sentence of death, the special reasons for such sentence’ have been added and

thereby it is clear from a reading of the provision that a sentence of life imprisonment is the rule and the sentence of death is an exception. To make the point more clear, while the court finds an accused guilty of an offence of murder, it shall award a sentence of life and if it finds that the incident is one of horrific, motivated, intentional and barbarous in nature, the court may award death sentence by assigning special reasons for such sentence. Under our provision, it is that the court shall assign special reasons if it decides to award a sentence of imprisonment for life.

There is debate over the true meaning of the words ‘imprisonment for life’. The lawyers, the courts and the jail authority are confused about the exact period of ‘life imprisonment’. To say more clearly, how long a convict may suffer in jail if he is sentenced to imprisonment for life. Learned counsel submits that section 57 clearly says that the imprisonment for life means thirty years rigorous imprisonment as the language of the law clearly says as such.

In Rokeya Begum V. State, 4 CLR(AD)147, this held that “Sentence of ‘imprisonment for life’ as used in Bangladesh is utterly a misnomer; indeed it appears to be an erroneous interpretation. The way it has been interpreted, the word ‘life’ does not bear its normal linguistic meaning.’ Although section 45 of the Penal Code defines ‘Life’ as the life of a human being unless the contrary appears from the context. The given interpretation has been arrived at with the aid of section 57 of the Penal Code, which provides that in calculating fraction of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 30 (thirty) years. This last mentioned section read with relevant provision of the Jail Code effectively means that a person sentenced to imprisonment for life will be released after spending a maximum of 21/22 years in prison. Under section 35A of the Code of Criminal

Procedure the period of time spent by the accused in custody during pendency of the trial would be deducted from his total sentence.

The expression ‘imprisonment for life’ is not a misnomer as observed by this court in Rokeya Begum (supra), but in true sense it is rigorous imprisonment for life. It has given an interpretation of section 57 without looking at section 53 read with 45 of the Penal Code and the views taken by this court, the Indian Supreme Court and the Privy Council held that a person sentenced to imprisonment for life will be released after spending maximum period of twenty two years in prison. The above views are not correct views and accordingly it is taken to be not in conformity with law. It has also wrongly considered section 35A of the Code of Criminal Procedure.

The submission of the learned counsel does not carry any basis because of the language used in section 57. In determining the point in controversy

section 57 has nothing to do in this regard. There is no doubt about the actual period of sentence to be suffered by a life convict. The Chief Justice has faced the same question when he has visited different jails. Life convicts complain to the Chief Justice about the exact period to be undergone by them. It is under this juncture the law is required to be settled by this court.

In 1836, ‘transportation’ was a common sentence in England for felony and one reason for thinking that section 58 of the Penal Code which provided the procedure for dealing with a sentence of transportation for life. It provided “In every case in which a sentence of transportation is passed, the offender, until he is transported, shall be dealt with in the same manner as if sentenced to rigorous imprisonment, and shall be held to have been undergoing his sentence of transportation during the term of his imprisonment.” This provision has been omitted by Ordinance No.XLI of 1985.

The English Act, (24 Geo. IV, Ch.84) is the basis following by which our Penal Code has been consolidated relating to transportation which contained in very similar provision. This Act provided that this sentence should always be one of transportation or banishment beyond the seas; that places on land or vessels in the river (commonly called the hulks) should be appointed for the confinement of prisoners until they could be placed on a convict ship and that until they could be removed to such places they were to be kept to hard labour in the common jail or house of correction and the time spent there was to be counted towards their sentence.

Matters of penology has changed from time to time in all communities, and none doubts the competency of the legislature in adopting and providing for new and enlightened methods in the treatment of prisoners. In England transportation beyond the seas ceased as a punishment in 1854. In

this subcontinent since the Penal Code has effected a radical change in the law, a sentence of transportation no longer necessarily involves prisoners being sent overseas or even beyond the provinces wherein they were convicted. The word ‘imprisonment’ has been substituted for the word ‘transportation’ by Ordinance No.XLI of 1985. When framing the Penal Code, the draftsmen undoubtly intended this sentence to remain as one whereby those on whom it was passed should be sent over seas. This can be inferred if the history of the sentence is examined that when the first enacted, ‘transportation’ means transportation beyond seas, although in India it has been substituted in 1955.

Section 45 defines the word ‘life’ means ‘the life of a human being unless the contrary appears from the context’. So if no contrary appears from the context ‘life’ means the life of a human being. The meaning of the words ‘year’ and ‘month’ have been defined in section 49, which means ‘the year or the

month is to be reckoned according to this British calendar’. Here the expression ‘reckoned’ is used which will be very significant for resolving the issue, and in calculating the period of sentence, a ‘year’ means its length i.e. about 365 days, 5 hours, 48 minutes and 51.6 seconds. To do away with the odd hours, the new style of calendar has adopted the average length is about 365 days and every fourth year of 366 days (24 Geo.11.c25). A sentence for one calendar month does not imply imprisonment for a fixed number of days. It may vary according to the month in which the sentence is passed. If the imprisonment began on the 30th of a month it will expire at midnight of the 29th of the following month, if the following month is not February, in which case it will expire on its last day whatever be the total number of days served by the prisoner.

Section 53 of the Penal Code sets out five different punishments to which offenders are liable to suffer under the provisions of the Penal Code. The

first sentence is death; the second is imprisonment for life; the third was omitted by the criminal law (Extinction of Discriminatory Privileges) Act, 1949; the fourth is imprisonment of rigorous or simple, the fifth is forfeiture of property and the sixth is fine. In the explanation it is provided that in the punishment of ‘imprisonment for life’ the ‘imprisonment shall be rigorous’. So all imprisonment for life shall be rigorous imprisonment whether it is mentioned in the judgment or not. Reading sections 45 and 53 conjointly there is no doubt that a sentence of life imprisonment means a sentence of rigorous imprisonment for the whole of the remaining period of the convicted person’s natural life.

Government has power to commute the sentence of death imposed to a prisoner under section 54 of the Penal Code. It provides “In every case in which sentence of death shall have been passed, the Government may, without consent of the offender, commute the punishment for other punishment provided

by this Code.’ In case of a life sentence offender, the government reserves the right to ‘commute the punishment for imprisonment of either description for a term not exceeding twenty years’ (S.55). The word ‘twenty’ has been substituted for the word ‘fourteen’ by Ordinance No.XLI of 1985. So, under this provision if an offender is sentenced to imprisonment for life, the government may without the consent of the offender commute the sentence of imprisonment of either description for a term not exceeding twenty years. After the Adaptation of Indian Laws Order, 1937, in case of a convict sentenced to transportation for life, the prisoner cannot be deemed to have commuted his sentence by the government and the prisoner was not entitled to be released after a term, which aggregated  with the period of remission earned, amounts to fourteen years although that was the maximum term of rigorous imprisonment permitted by law. It is only if the period of sentence is not commuted by the appropriate

authority under the provisions of Penal Code or the Code of Criminal Procedure, a prisoner of life sentence is bound to serve the life term.

In the absence of any order of commutation of sentence either under the provisions of the Penal Code or the Code of Criminal Procedure, a prisoner sentenced to imprisonment for life is bound in law to serve the life term in jail. The Rules framed in exercise of the Prisons Act, 1894 enable a prisoner to earn remissions both ordinary or special and the said remissions are given credit towards the term of imprisonment. If we look at the history of penology it is evident that the sentence of transportation for life or the life imprisonment is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predict the time of his death that prompted the government to promulgate Rules providing procedure to enable the government to remit the sentence under section 401 of the Code of Criminal Procedure on consideration of

the relevant factors including the period of remissions earned. The question of remissions is exclusively within the province of the government.

Section 368 of the Code of Criminal Procedure provides the mode of sentence of death and imprisonment for life has to be implemented. In respect of death sentence, the court shall direct that the convict ‘be hanged by the neck till he is dead.’ A life sentence prisoner may be sent to any jail according to the convenience of the jail authority. Previously he was transported to overseas.

Section 401 of the Code of Criminal Procedure confers a power upon the government to suspend or remit a sentence. It is not unconditional and the government after remitting a sentence can restore it. Different considerations would arise in cases of fraud or mistake. It cannot be said that an order of remission is never open to recall. It may be in certain circumstances, fraud or mistake, for example, might justify such action. This section clearly

provides both for remission and of suspension of sentence with or without condition. Where a sentence is suspended without any condition, it does not amount to remission. In a case of murder, the court may report any extenuating circumstances calling for a mitigation of the punishment to the government and the government may thereupon take such step under this provision as it thinks fit. Say for example, in a case accused committed murder without any apparent motive, and was suffering from mental derailment or some sort of mental disorder. The court may hold that the accused is not entitled to be acquitted under section 84 of the Penal Code and recommend to the government under this section to deal with in such manner as it thought fit. The courts have ample power to exercise this power under this section to make such recommendation but normally the courts are not exercising this power.

Even if a convict’s sentence of imprisonment for life is conditionally remitted in exercise of the powers under this section, and the convict is released, such convict must be deemed to be under sentence of imprisonment for life in spite of the fact that he is not actually undergoing the sentence. If he commits any offence of murder and the court finds him guilty during the period of his remission, he will be liable to face sentence under section 303 of the Penal Code. There are some conflicting decisions on this point. The Supreme Court of India set the point at rest. It held that if a person is sentenced to imprisonment for life he may be detained in prison for life. The court cannot interfere on the ground of earning the remission. (Sambhaji V. State, (1974) 1 SCC 196).

The government may also commute any sentence of death, imprisonment for life or rigorous imprisonment to any period under section 402 without the consent of the prisoner. It can be done as a matter of grace and it being the executives prerogative, judicial review against such decision is not normally

available. So the government reserves the power of remission as well as commutation of sentence of a convict. A remission of sentence is given credit towards the terms of punishment of a prisoner but there is no criteria in determining the duration of life of a prisoner. The period of thirty years mentioned in section 57 is for the purpose of working out the criteria and also for the purpose of working out the remissions, the sentence of imprisonment for life is ordinarily equated with a definite period but we are unable to collect any Rules in Bangladesh. Even then, there is no doubt that it is only for that particular purpose. To say more clearly it is used in the sense of using it as a unit, as the sentence of imprisonment for life is one of indefinite duration, the remission earned by a prisoner do not in practice help such a convict, as it is not possible to predicate the date of his death. That is why, a provision is provided in section 401 (6) to frame Rules of procedure enabling the appropriate

government to remit the sentence on consideration of relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the government. The convict cannot acquire a right of remission and release from the incarceration. (Gopal  Vinayak Godse V. State, AIR 1961 S.C.600).

Apart from the above there are some provisions in the Jail Code for remission of sentence. Remission is the reduction of the term of a prison sentence usually due to good behaviour or conduct. It refers to a structured system with criteria for prisoners to meet in order to encourage good behaviour, rehabilitation and self-improvement, with the ultimate benefit being the release of the prisoner. There is distinction between the word ‘commute’ used in section 55 of the Penal Code and ‘remission’ under section 401 of the Code of Criminal Procedure - where an accused’s sentence is commuted under section 55 to twenty years, he cannot be regarded upon his release

as being under the sentence of life imprisonment for the purpose of section 303, but where his sentence is remitted under section 401 of the Code of Criminal Procedure, he must be regarded as still being under the sentence of imprisonment for life.

The Jail Code provides some Rules regarding remission of sentence of the prisoners in Chapter

XXI. In rule 751 (f), a definition of ‘life-convict’ is given as under:

(i)                                         a class I or class II prisoner whose  sentence amounts to twenty five years imprisonment, or

(ii)                                      a class III prisoner whose sentence amounts to ‘twenty years’ imprisonment. (This classification of prisoners have been described in paragraphs (a) to (d) of rule 751.

A note has been inserted under the rule stating that the above classification of sentence was made by the Superintendent and the said notes should not be

regarded as part of the statutory rule. It is pointed out that all prisoners who have been sentenced to more than fourteen years including a life sentence, when the term of imprisonment undergone by a prisoner together with any remission earned under the Rules amounted to fourteen years be submitted for order of the local government (now government) in accordance with  the instructions of the Home Department Resolution No.159-67 (jails) dated 6th September, 1905 which shall then to decide whether the prisoner shall be released at the expiry of fourteen years including remission earned. The procedure for calculating the period of remission is provided in rule 769. The procedure for release of life convicts is provided in rules 770 for consideration by the government after remission. Though it is provided in rule 771 subject to rule 770, when a prisoner has earned remission that entitles him release, the superintendent shall release him. This provision is in conflict with section 401 of the Code of Criminal

Procedure and this court fails to understand as to how the superintendent shall release him before expiry of the term of sentence after deducting remission.

Remission under the Jail Code is classified in to two types, such as, (1) Ordinary Remission (rules 756, 757, 759) and (2) Special Remission (rule 756). Under rule 756, 2(two) days ordinary remission per month shall be awarded for – (a) thoroughly good conduct and scrupulous attention to all prison regulations (b) two days per month for industry and the due performance of the daily task imposed. Remission of 8 days may also be allowed per month if a convict performs as night guard seven days per month. Remission is calculated from the first day of the calendar month next following to the date of the prisoner’s sentence.

In lieu  of the remission allowed under rule 756, the prisoners shall receive ordinary remission on  the  following  scale  depending  on  the  nature  of their various works in the jail:

(a) Convict warders:   8 days per month

(b) Convict night guards:  7 days per month

(c) Convict night watchman:  5 days per month

(d) Convict overseers:  6 days per month This  remission  shall  be  calculated  from  the

first day of the next calendar month following the appointment  of  the  prisoner  as  mentioned  above  in accordance with rule 758. In addition to above, other remissions  may  be  enjoyed  by  a  prisoner  if  he  is employed  on  prison  service,  such  as  cooks  and sweepers, who works for weekly and other holidays may be  awarded  3  (three)  days  ordinary  remission  per quarter  in  accordance  with  rule  759.  Special remission may be earned by a prisoner if he fulfills the conditions set out in paragraphs (1) to (6) of rule 765.

If  a  prisoner  is  convicted  of  an  offence committed after admission to jail under sections 147, 148, 152, 224, 304, 304A, 306, 307, 308, 323, 324, 325, 326, 332, 333, 352, 353 or 377 of the Penal Code; or if a prisoner is convicted for assault committed after admission to jail on a warder or other officer, the remission of whatever kind earned by him up to the date of the said conviction, may with the sanction of the Inspector-General of Prisons, be cancelled. (rule 754).

Ordinary remission shall be awarded by: (a) The Superintendent or, (b) the Deputy Superintendent (subject to the control and supervision of the Superintendent) or, (c) Jailer (subject to the control and supervision of the Superintendent) or, (d)  Deputy Jailer (subject to the control and supervision of the Superintendent) or, (e) Any other officer specially empowered in that behalf by the Superintendent (rule 761). Before awarding remission the officer shall consult the prisoner’s history ticket in which every offence proved against the prisoner is recorded. If a prisoner has not been

punished during the quarter(otherwise than by a formal warning) he shall be awarded full ordinary remission for that quarter, and if a prisoner has been punished during the quarter (otherwise than by a formal warning), the case shall be placed before the Superintendent. Then he shall decide what amount of remission shall be granted, considering the punishments awarded. (rules 762 and 763).

Special remission may be given to any prisoner (whether entitled to ordinary remission or not) for special services, for example: (a) Assisting in detecting or preventing breaches of prison discipline or regulations; (b) Success in teaching handicrafts (c)  Special excellence in, or greatly increased outturn of, work of food quality; (d) Protecting an officer of the prison from attack; (e) Assisting an officer of the prison in the case of outbreak, fire, or similar emergency; (f) Economy in wearing clothes (rule 765). Special remission may be awarded (a) by the Superintendent to a period not exceeding 30 days

in one year; (b) by the Inspector-General or the Government to a period not exceeding sixty days in one year. (rule 766).

The total remission awarded to a prisoner under all rules shall not, without the special sanction of the government, exceed one fourth part of his sentence. (rule 768). In calculating the date of release of a prisoner the number of days of remission earned shall be converted into months and days, that is to say, according to the English calendar month. (rule 769). When a life convict who is either (a) a class 1 prisoner, or (b) a class II or a Class III prisoner, with more than one sentence, or (c) a prisoner in whose case the government has passed an order forbidding his release without reference to it has earned such remission as would entitle him to release, the Superintendent shall report to the government in order that his case may be considered with reference to section 401 of the Code of Criminal Procedure.

We find no basis or sanction of law to come to such conclusion. This conversion of life  sentence into one of fixed term by the Jail Authority is apparently without jurisdiction and we are afraid as no provision of law was brought on record or cited to sanction such a course of remission. From the above notes it is seen that the life convicts are granted remissions and released from the custody on completing fourteen year term, if it is so, without any legal basis. It is reported from the jail authority that unless a prisoner who has been sentenced to imprisonment of life is recommended to the government after serving out twenty years in jail, no such recommendation for release is made. If this information is true, there will be no violation of law.

This power of commutation cannot be exercised by the government in all cases. As regards the term or tenure to be suffered by a prisoner of life imprisonment, this court noticed

inconsistent opinions of the concerned Ministries. The Ministry of Home Affairs under memo dated 23.12.1987 sought an opinion from the Ministry of Law and Justice regarding the procedure for counting the period of imprisonment to be suffered by a life sentence prisoner convicted under section 302 of the Penal Code. From the reference we noticed that the Ministry has sought an explanation as to whether such prisoner would serve ‘twenty’ or ‘thirty’ years sentence. This is apparent from the subject under reference. It is mentioned thus: ‘¢houx h¡wm¡−cn cä¢h¢d BC−el 302 d¡l¡u k¡h‹S£he p¡S¡fË¡ç Bp¡j£−cl p¡S¡l f¢lj¡e 20 hR−ll ÙÛ−m 30 hR−ll Nee¡ pwœ²¡¿¹z’ The above subject matter clearly suggests that the Ministry of Home Affairs presumed that a life sentence prisoner had suffered twenty years rigorous imprisonment and after amendment, they have to suffer thirty

years. The said Ministry was not properly advised from before as to the true meaning and purport of section 57 of the Penal Code and, that is why, it presumed that the life imprisonment prisoner had suffered twenty years previously and after the amendment his sentence has been fixed as thirty years rigorous imprisonment.

The Ministry of Law and Justice Affairs by letter under memo dated 3.1.1988 in paragraph 3 correctly opined that there had no reason to presume that life imprisonment be treated as twenty years or thirty years period of sentence and that the life imprisonment shall be deemed to be for life. This opinion is correct and there is no doubt about it. But on the other breath, way of explanation, it mentioned in sub-paragraph (Ka) that in section 57 of the Penal Code it was mentioned that in the process of calculating the period, the life imprisonment shall be deemed to

be thirty years. It is stated ‘n¡¢Ù¹l ®ju¡−cl Awn ¢el¦f−el ®r−œ k¡h¡‹S£he L¡l¡cä 30 hRl ®ju¡c£ ¢q−p−h NZÉ qC−hz’ There, the Ministry committed the error. Section 57 does not say that life imprisonment shall be for thirty years. In sub-paragraph (Kha), it again committed another error in pointing out that 57 d¡l¡l imprisonment for 30 years ‘h¡ (30 hR−ll L¡l¡h¡p) Lb¡…¢m 1985

p−el 41 eðl AdÉ¡−cn à¡l¡ f§−hÑL¡l ‘transportation for 20 years’ Lb¡…¢m

Ù¹−l fË¢a¢ùa quz ®k−qa¥ Eš² AdÉ¡−cn Eq¡l ®N−SV ¢h‘¢çl a¡¢lM 5 BNø 1985 qC−a L¡kÑLl qCu¡−R, Eš² a¡¢l−Ml f§−hÑ fËcš n¡¢Ù¹l ‘imprisonment for life’ h¢m−a 20 hR−ll Hhw Eš² a¡¢lM qC−a f¢lhaÑ£L¡−m fËcš pLm n¡¢Ù¹l ®r−œ

‘imprisonment for life’ h¢m−a 30 hRl ®ju¡c£ L¡l¡h¡p h¤T¡C−hz’

This explanation and or/opinion is totally contrary to law and also self-contradictory to paragraph 3 because by this amendment, for the figure ‘twenty’, the figure ‘thirty’ has been substituted which does not make any difference. In no case life imprisonment shall be either

‘twenty’ years or ‘thirty’ years before or after amendment.  The  concerned  officers  have  totally ignored  section  53  read  with  section  45  of  the Penal Code.

As per direction of this court an officer has collected  an  order  under  memo  dated  14.01.1991 from the Ministry of Home Affairs which reads as follows:

‡h‡nZz A¯nvqx ivóªcwZ wewfbœ KvivMv‡i Ae¯nvbiZ K‡qK †kªYx  mvRv †fvMiZ K‡q`x‡`i mvaviY ¶gv cª`k©‡bi wm×vš— MªnY Kwiqv†Qb| †m‡nZz †dŠR`vix Kvh©wewa 101(1) aviv †gvZv‡eK A¯nvqx ivóªcwZ wbæwjwLZ Av‡`k cª`vb Kwiqv‡Qb|

(1)            MZ 6.12.1990 Bs ZvwiL ch©š— mg‡q †h mKj mvRvcªvß K‡q`x cªPwjZ

†iqvZmn †gvU mvRvi 21 Ask (A×v©sk) LvwUqv‡Qb Zvnv‡`i Awej‡¤^ gyw³`vb|

(2)                 6.12.1990  Bs  ZvwiL  ch©š—  mg‡q  †h  mKj  mvRvcªvß  K‡q`x  cªPwjZ

1 1 †iqvZmn †gvU mvRvi 2 Ask (A×vsk) Lv‡U bvB Zvnviv †gvU mvRvi 2 Ask

(A×vsk) LvUvi ci gyw³ cvB‡e|

(3)              6.12.1990 Bs ZvwiL ch©š— mg‡q hve¾xeb `‡Ûi †gqv` 20 (wek) ermi ewjqv Mb¨ Kiv nB‡e|

(4)              6.12.1990 Bs ZvwiL ch©š— mg‡q ‡h mKj K‡q`x‡`i †gqv` 2 (`yB) ermi

ev Zvnvi Kg Zvnviv Awej‡¤^ gyw³ cvB‡e|

(5)              6.12.1990 Bs ZvwiL ch©š— mg‡q ‡h mKj K‡q`xi eqm 16 ermi wKsev Zvnvi Kg Zvnviv Awej‡¤^ gyw³ cvB‡e|

(6)              ‡h mKj K‡q`xi eqm 60 ermi wKsev Zvnvi AwaK nBqv‡Q Ges †Rjv cªkvmK, wmwfj mvR©b, Dc-gnvKviv cwi`k©K, †Rjv Kviv ZËveavqK mgb¡‡q MwVZ KwgwU KZ…©K wPi¯nvqxfv‡e cs¸ ev A_e© wnmv‡e we‡ePbv Kiv nB‡e Zviv gyw³ cvB‡e|

(7)              †h mKj mvRvc«vß K‡q`x Dc‡iv³ ¶gv I we‡kl †iqv‡Zi AvIZvfz³ AvnZ‡`i g‡a¨ hw` †Kn `Ûv‡`‡ki wei“‡× D”PZi Av`vj‡Z Avcxj Kwiqv _v‡K Zvnv‡`i †¶‡ÎI GB ¶gv I we‡kl †iqvZ cª‡hvR¨ nB‡e|

(8)              evsjv‡`k Avg©x G¨v±/‡i¸‡ijk‡bi Aax‡b mvRvcªvß cªv³b mvgwiK evwnbxi

m`m¨iv Dc‡iv³ ¶gv I we‡kl †iqv‡Zi ewnf~©Z _vwK‡e|

It was pointed out that the Acting President decided to give clemency to the prisoners of different jails. Then it said in exercise of

powers under section 101(1)((sic) 401), he passed the order. In sub-para (1) it was stated that the prisoners who had suffered half term till 6.12.1990 be released forthwith and those who have not suffered half term of the sentence would be released after undergoing half period of sentence. In sub-para (3), it was pointed out that till 6.12.1990 the prisoners who were sentenced to imprisonment for life shall be treated as twenty years in prison and from that date all prisoners who had suffered two (twenty) years or less would be released forthwith. It was also directed that the prisoners who were sixteen years old on that date would be released and the prisoners who were sixty years or more would be released as per recommendation of the Superintendent of Jail.

On a close reading of this order it appears that a general clemency has been granted by the Acting President of all prisoners but we noticed that the order of clemency was passed by the Acting President and not by the government. Section 401 of the Code of Criminal Procedure empowers the government to remit whole or any part of the punishment of any prisoner. This power can be exercised by the government on the application of any prisoner. No general order of clemency can be given suomoto by the government. On the other hand, the President has power to grant pardon or remit or suspend or commute any sentence passed by any court or tribunal. This power of pardon ought to have been granted under article 49 of the constitution. The President can exercise wider power of elemency than a remission of sentence by the government.

Pardon and remission stand on different footings and give rise to different circumstances. A pardon affects both the

punishment prescribes for the offence and the guilt of the offender, that is to say, a full pardon may blot out the guilt itself, but in case of remission, the guilt of the offender is not affected nor is the sentence of the court affected in the sense that the offender concerned does not suffer incarceration for the entire period of the sentence. He is relieved from serving out a part of the sentence (K.M. Nanavati V.  State of Maharashtra, AIR 1961 SC 112). The power to be exercised under section 401 of the Code of Criminal Procedure is the executive power vested in the government and by reducing the sentence the authority modifies the judicial sentence. This section confines the power of the government as to the suspension of the execution of the sentence or remission of the whole or any part of the punishment. A remission of sentence does not mean acquittal of the accused (Ramdeo Chauhan V. State of Asam, AIR 2001 SC 2231).

Article 49 of the constitution provides that the President shall have power to grant pardon, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. This power is independent of the power given by sections 401, 402 and 402A of the Code of Criminal Procedure. In respect of suspension and remission of sentence and commutation of punishment (State V. Eliadah McCord, (1997) 2BLC(AD)1), where the law prescribes a minimum sentence the court cannot reduce it say, section 25B of the Special Power’s Act. But the President can do so under article 49 since the power comes from the constitution. It cannot be modified, abridged or diminished by Parliament (Panjab V. Jogindarsingh, AIR 1990 SC 1396).

However, in the parliamentary form of government, the President has to exercise this power on the advice of the Prime Minister (Kehar Singh V. India, AIR 1989 SC 653). Even then our constitution embodies generally the parliamentary and cabinet system of government of British Model and that the position of the President corresponds to that of the sovereign in the UK who is the formal head of government and must act on the advice of the Council of Ministers. The Parliament predominant position in legislation which the British House of Commons secured for itself by the Parliament Act, 1911. Since the President is taken as the head of the State and sovereign, the prerogative power exercises by the President under article 49 of the constitution is taken to be constitutional power and though this court exercises both judicial as well as constitutional power, the power exercises by the

President is higher than those of this court. Therefore, the President can grant clemency to a prisoner even after confirmation of death sentence confirmed by this court.

   The power of pardon includes the power of granting general amnesty (Schwartz-Constitutional Law, 1979, P-198). Marshall, the Chief Justice of US held that a pardon is a private act of the grantor analogous to transfer of property or commercial transaction and acceptance by the guarantee is essential to its validity (US V. Wilson (1833) 7 Pet 150). In a case the defendant refused to answer the question before a Federal Grant Jury on the ground of self incrimination, the President offered him a full unconditional pardon but the defendant refused to accept the pardon. He was proceeded against in contempt on the ground that there was no possibility of his being prosecuted. The American Supreme Court

reversed the conviction for contempt holding on the basis of Marshall reasoning that the pardon offered had no validity for non-acceptance by the defendant (Bardick V. US, (1915) 236 US 79).

In another case the defendant was convicted of murder and sentenced to death. The President commuted the sentence to life imprisonment. The defendant challenged the legality of the order pleading that he did not accept the commutation. The Supreme Court did not overrule Burdick (Ibid) but rejected the contention of the defendant holding that Burdick’s reasoning was not applicable in the case of commutation (Biddle V. Perovich, (1927) 274 US 480). In A.G. of Trinidad and Tobago V. Phillip, (1995) 1 AC 396, the Judicial Committee of the Privy Council was of the view that pardon is an executive act of the State and should not be treated as being analogous to a contract and is not dependent upon

the acceptance subject of the pardon. A pardon would only relate to offences already committed and do not extent to offences not yet committed.

   In Bangladesh V. Kazi Shaziruddin, (2007) 15 BLT (AD) 95, the accused was convicted for misconduct under Act II of 1947 and sentenced to imprisonment with fine and confiscation of his house. His wife prayed for pardon and the President remitted the unexpired portion of the sentence conditionally. After release the accused prayed for return of his house upon payment of taka fifty lac which having been refused, moved the High Court Division. The High Court Division declared that the condition attached by the government at the time of remission of sentence that he would not be entitled to claim his house was illegal and declared that he was entitled to get back his house. This court set aside the judgment holding that  (a) a pardon may be

conditional or unconditional, (b) the power exercised by the President is not justiceable and (c) the exercise of power under article 49 is not subject to any constitutional or judicial restraints    except that the power cannot be exercised to enhance the sentence.

In the order made by the Acting President on 14.1.1991, similar mistake was committed by the government pointing out in sub-paragraph (3) of paragraph 1 that up to 6.12.1990, the life imprisonment prisoners shall be taken as twenty years. Nowhere in the Penal Code there is any provision that the life imprisonment shall be taken as twenty years imprisonment.       

Lord Macaulay, in the introduction to the Penal Code pointed out that a sentence of transportation is one ‘likely to be regarded with particular terror by Hindoos (Hindus), largely because of their dread of crossing ‘the black water’, the loss of caste which a journey overseas entails and of the uncertainty whether they will ever see their homes again.’ Therefore, there is no doubt that the sentence has been preserved for its deterrent effect and because in certain cases it may be both useful and desirable to send convicts to the islands. After the partition a convict sent to penal servitude serve his sentence in local prison.   

In determining the point in issue the first provision to notice in this regard is section 368(2) of the Code of Criminal Procedure, which provides “(2) No sentence of transportation/ (imprisonment) shall specify the place to which the persons sentenced is to be transported.” The government may send any prisoner who is sentenced to life imprisonment in the District Jail in which distinct he is convicted or to any other central jail as it deems fit for its convenience. The next law for our consideration is the Prisoners Act, 1900 as amended in 1903. Section 29 provides as under:

“1 The Government may by general or special order, provide for the removal of any person confined in a prison –

(a) under sentence of death, or

(b) under, or in lieu of, a sentence of

imprisonment or transportation, or

(c) in default of payment of fine, or

(d) in default of giving security for keeping

the peace or for maintaining good behaviour, to any other prison in Bangladesh.

2(a) subject to the orders, and under the control of the Government the Inspector-General of Prisons may, in like manner, provide for the removal of any prisoner confined as aforesaid in a prison in Bangladesh’. So both the government and the Inspector General have power to remove a prisoner from one prison to another. So, it is not necessary that a person sentenced to imprisonment for life must always be sent to Andamans. He may be kept to local jails under section 368 read with the Jail Code. Now the

next question is whether section 57 of the Penal Code prescribes a period of thirty years in calculating the period of a life sentence prisoner. This section reads as under:

“In calculating fractions of terms of punishment imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for thirty years.”

A plain reading of this provision does not show that life imprisonment shall be for thirty years. It says, in calculating the fractions of terms of punishment, that is, it is limited to calculating the fractions of terms of imprisonment and while calculating fractions, life imprisonment is to be reckoned as equivalent to imprisonment for thirty years. It does not say that life imprisonment means imprisonment for thirty years for all purposes. It cannot be held or meant to make life imprisonment is equivalent to imprisonment for thirty years for all purposes. This section is limited in its scope as

above. Therefore, under no stretch of imagination it can be said that life imprisonment means thirty years in total period in prison to be served by a prisoner. It means a sentence of imprisonment for whole of the remaining period of the convicted persons natural life.

Section 57 of the Penal Code is only for calculating  fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for thirty years for the specific purpose mentioned therein. (Kartar Singh V. State of Haryana, 1983 SC (CR) R.150) and Ratan Singh). Similar views have been taken in Dalbir Singh V. State of Panjab, (1979) 3 SCC 745, Subash Chander V. Krishan Lal, (2001) 4 SCC 458, Rajendra Prasad V. State of U.P., (1979) 3SCC 646, State of M.P. V. Ratan Singh, (1976)3 SCC 470, Gopal Vinayak Godse (Supra). In Shri Bhagwan V. State of Rajasthan, (2001) 6 SCC 296, it was observed that the rules framed under the Prisons Act or under the Jail Manual

do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. It approved the earlier view that the question of remissions of the entire sentence or a part of it lies within the exclusive domain of the appropriate government under section 401 of the Code of Criminal Procedure and neither section 57 of the Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Penal Code.

The words ‘imprisonment for life’ have been substituted for the words ‘transportation for life’ in 1985. The ‘transportation’ in the context used ‘transportation for life’ or ‘transportation’ for a term only, that is, transportation for life or transportation for a shorter period. So by mere substitution of the word ‘transportation’ would not change the period of punishment. As a form of

punishment imprisonment for life shall remain distinct from simple imprisonment. Except the meaning of the word ‘life’ no definition of ‘imprisonment for life’ is used in section 53 of the Penal Code. Penal Code is totally silent regarding the duration of ‘transportation for life’. This ambiguity has been clarified by insertion of section 53A in the Penal Code by Ordinance No.XLI of 1985. Section 53A reads thus:

(1)                                        Subject to the provisions of sub- section (2), any reference to “transportation for life” in any other law for the time being in force shall be construed as a reference to “imprisonment for life”.

(2)                                        Any reference to transportation for a term or to transportation for a shorter term (by whatever name called) in any other law for the time being in force shall be deemed to have been omitted.

(3)                                        Any reference to “transportation” in any other law for the time being in force shall –

(a)              if the expression means transportation for life, be construed as a reference to imprisonment for life;

(b)              if the expression means transportation for any shorter term, be deemed to have been omitted.

We cannot gather the intention of the Legislature since no preamble is mentioned in the Ordinance and secondly, by this Ordinance a significant change has been made without obtaining any opinion of the Law Commission or if there be any opinion, it has not been published anywhere. But it is seen that this section has been couched in verbatim language of section 53A of the Indian Penal Code added by Act XXVI of 1955. But the insertion of section 53A makes it clear that the expression is

used to be presumed that it is ‘imprisonment for cessation of the natural life’ of the prisoner. 

Now the question is whether a prisoner sentenced to imprisonment for life can be released after suffering a period of thirty years in prison in view of section 57 of the Penal Code. The point in controversy is no longer res-integra and it has been answered by the Judicial Committee of the Privy Council and the views have been approved by the Supreme Court of India. In Kishori Lal V. Emperor, AIR 1945 PC 64 the Privy Council expressed the tenor and meaning of section 57 as under:

“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 where he will be dealt with in the same manner as a prisoner sentenced to rigorous imprisonment. The appellant was lawfully sentenced to transportation for life; at the

time  when  he  made  his  application  to Monroe,J. He was confined in a prison which had  been  appointed  as  a  place  to  which prisoners  so  sentenced  might  be  sent. Assuming that the sentence is to be regarded as  one  of  twenty  years,  and  subject  to remission  for  good  conduct,  he  had  not earned  remission  sufficient  to  entitle  him to discharge at the time of his application and it was therefore rightly dismissed but, in saying this, their Lordships are not to be  taken  as  meaning  that  a  life  sentence must and in all cases be treated as one of

remission.” (emphasis supplied).

The  above  view  have  fully  been  endorsed  by  a constitutional  Bench  of  the  Supreme  Court  in  Gopal Vinayak Godse V. State of Maharashtra, AIR 1961 SC 600.  The  question  in  that  case  was  whether  the

prisoner sentenced to life imprisonment was entitled to set at liberty on the ground that he had earned remissions of 2963 days, the aggregate would exceed twenty years, and even if only the State remission was added to it, it would exceed fifteen years. The State took the plea that the remissions earned did not entitle him to be released and that his release would be considered after he completed fifteen years actual imprisonment. The Court observed:

‘As the sentence of transportation for life or its equivalent, the life  imprisonment, is one of indefinite duration, the remission so earned do not in practice help a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate government to remit the sentence under S.401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned.