IN THE SUPREME COURT OF BANGLADESH APPELLATE DIVISION

PRESENT:

                        Mr. Justice Syed Mahmud Hossain,

Chief Justice

 Mr. Justice Muhammad Imman Ali Mr. Justice Hasan Foez Siddique

 Mr. Justice Mirza Hussain Haider Mr. Justice Abu Bakar Siddiquee

 Mr. Justice Md. Nuruzzaman

 Mr. Justice Obaidul Hassan

CRIMINAL REVIEW PETITION NO.82 OF 2017.

(From the judgment and order dated 14.02.2017 passed by this Division in Criminal Appeal No.15 of 2010).

Ataur Mridha alias Ataur

=Versus= The State

For the Petitioner                          : For the Respondent                           :

As Amici Curiae to assist the Court :

    Petitioner.

 Respondent.

Mr. Khandker Mahbub Hossain, Senior Advocate, instructed by Mr. Syed Mahbubar Rahman, Advocate-on-Record.

Mr. Mahbubey Alam, Attorney General,(now dead) Mr. A.M. Aminuddin, Attorney General with Mr. Biswajit Debnath, Deputy Attorney General instructed by Mr. Haridas Paul, Advocate-on-Record.

Mr. Rakanuddin Mahmud, Senior Advocate with  Mr. A.F. Hassan Ariff, Senior Advocate and Mr. Abdur Razzaque Khan, Senior Advocate.

Date of hearing  : 20.06.2019, 11.07.2019, 24.11.2020. Date of judgment: 01.12.2020.

J U D G M E N T

SYED MAHMUD HOSSAIN,C.J.: I have had the privilege of going through the judgments written by

my brothers Muhammad Imman Ali,J. and Hasan Foez

Siddique,J. While concurring with the judgment and order written by my brother Hasan Foez Siddique,J. I would like to add a few sentences since the question involved in this criminal review petition is of greater public importance.

Facts of the case and the relevant decisions have fully been noticed in the majority judgment. I, therefore, avoid repetition.

The core question in this criminal review petition is what is meant by life imprisonment in the context of the provisions of the Penal Code, the Criminal Procedure Code, the Prisons Act and the Jail Code.

Imprisonment for life prima facie means the whole of the remaining life. The term “imprisonment for life” has not been defined in any of the statutes including the Penal Code. Section 45 of the Penal

Code defined the word “life” as follows:

“45. The word “life” denotes the life of a human being, unless the contrary appears from the context.”

Section 53 of the Penal Code states about various forms of punishments. Section 53 of the Penal Code runs as follows:

“53. The punishments to which offenders are liable under the provisions of this Code are,- Firstly,-Death;

Secondly,-Imprisonment for life;

Thirdly,-Omitted by the Criminal Law (Extinction of

               Discriminatory Privileges)Act 1949(Act                No.II of 1950);  

Fourthly,-Imprisonment, which is of two descriptions, namely:-

(1)          Rigorous, that is, with hard labour;

(2)          Simple;

Fifthly,-Forfeiture of property;

Sixthly,-Fine.

Explanation.-In the punishment of imprisonment for life, the imprisonment shall be rigorous.

Section 53 of the Penal Code is almost similar to section 53 of the Indian Penal Code except that the explanation appended to section 53 of the Penal Code has not been incorporated in section 53 of the Indian Penal Code. Section 55 of the Penal Code provides that Government has the power to commute the sentence of imprisonment for life to a term not exceeding 20 years. On the other hand, in India Government has the power to commute imprisonment for life to a term of either description not exceeding 14 years. In our case too it was 14 years but in 1985 by the Penal Code (Amendment) Ordinance,1985 (Ordinance No.XLI of 1985) 20 years was substituted for 14 years. For better appreciation section 55 of the

Penal Code is quoted below:

“55. Commutation of sentence of imprisonment for life-In every case in which sentence of imprisonment for life shall have been passed, the Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding twenty years.”

According to section 57 of the Penal Code fractions of terms of punishment of imprisonment for life shall be calculated as equivalent to rigorous imprisonment for 30 years. In India, the language of section 57 of the Indian Penal Code is almost similar but in their case the period shall be reckoned as equivalent to imprisonment for 20 years. For better understanding, we should have a look on section 57 of

the Penal Code, which is quoted below:

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

With a view to giving a meaningful interpretation of imprisonment for life some of the provisions of the Code of Criminal Procedure are also required to be considered.

At the very outset it would be relevant to consider the introduction of section 35A of the Code of Criminal Procedure which was not in the original Code of Criminal Procedure. Section 35A of the Code of Criminal Procedure was first introduced by way of amendment of the Code of Criminal Procedure by Ordinance No.12 of 1991, which was subsequently enacted by way of amendment of the Code of Criminal Procedur,1898 (Act V of 1898). The then section 35A introduced by the Ordinance No.12 of 1991 is quoted below:

“35A. Term of imprisonment in cases where convicts are in custody.- Where a person is in custody at the time of his conviction and the offence for which he is convicted is not punishable with death or imprisonment for life, the Court may, in passing the sentence of imprisonment, take into consideration the continuous period of his custody immediately preceding his conviction.

Provided that in the case of an offence for which a minimum period of sentence of imprisonment is specified by law, the sentence shall not be less than that period.”

However, the Ordinance was repealed by the Act No.16 of 1991 but at the time of enactment the proviso appended to section 35A was omitted.

Having gone through the section 35A of the Code of Criminal Procedure as introduced by Act No.16 of 1991, we find that when an accused is sentenced to death or imprisonment for life or sentenced for an offence which is punishable with death or imprisonment for life he is not entitled to get the benefit of section 35A of the Code of Criminal Procedure for deduction of sentence for the period during which he was in custody prior to his conviction and sentence. Section 35A introduced by Act No.16 of 1991 conferred a discretionary power on the Court to take into consideration the continuous period of custody of a convict prior to his conviction provided that his offence was not punishable with death or imprisonment for life.

In India, the corresponding section is 428 of the Indian Code of Criminal Procedure, 1973 which runs as under:

“428.Period of detention undergone by the accused

to be set-off against the sentence of imprisonment.- Where an accused person has, on conviction, been sentenced to imprisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him during the investigation, 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 imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him:

Provided that in cases referred to in section 433A, such period of detention shall be set- off against the period of fourteen years referred to in that section.”

On consideration of section 428 of the Indian Code of Criminal Procedure, it appears that an accused who is convicted for imprisonment for a term the period of detention, if any, undergone by him during the investigation, inquiry or trial before the date of conviction shall be entitled to set-off against the term of imprisonment imposed on him on conviction. A convict is entitled to the benefit of section 428 of the Indian Code of Criminal Procedure irrespective of the fact that he has been sentenced to suffer imprisonment for life and since the right

of set-off is mandatory the period undergone by the convict before such conviction shall be set-off from his term of imprisonment. The proviso appended thereto provides that in cases referred to in section 433A such period of detention shall be set-off against the period of 14 years referred to in that section. Before adding the proviso to section 428 in 2005, the words, “imprisonment for life” were conspicuously absent in section 428 of the Indian Code of Criminal Procedure. For such reason in Kartar Singh and Others vs. State of Haryana, AIR 1982 SC 1439 the Supreme Court of India held that the benefit of set-off contemplated in section 428 of Code of Criminal Procedure would not be available to life convicts. But this decision was overruled in Bhagirath and others Vs. Delhi Administration, AIR 1985 SC 1050 wherein the court held:

” 5. The neat and, we believe, the simple question for decision is whether imprisonment for life is imprisonment "for a term". The reason why it is urged that imprisonment for life is not imprisonment for a term is that the latter expression comprehends only imprisonments for a fixed, certain and ascertainable period of time like six months, two sears, five years and so on. Since the sentence of life imprisonment, as held by this Court in Gopal Vinayak Godse v. The State of Maharashtra,(1961) 3 SCR 440 is a sentence for life and nothing less and since, the term of life is itself uncertain the sentence of life imprisonment is for an uncertain term, that is to say, that it is not imprisonment for a term. 6......The relevant question and, the only one, to ask under Section 428 is : Has this person been sentenced to imprisonment for a term ? For the sake of convenience, the question may be split into two parts. One, has this person been sentenced  to  imprisonment?  And,  two,  is  the imprisonment to which he has been sentenced an imprisonment for a term? There can possibly be no  dispute  that  a  person  sentenced  to  life imprisonment is sentenced to imprisonment. Then, what is the term to which he is sentenced? The obvious answer to that question is that term to which he has been sentenced is the term of his life. Therefore, a person who is sentenced to life imprisonment is sentenced to imprisonment for a term.”

The Supreme Court of India then held in Bhagirath (supra) that the question of setting off the period undergone by an accused before his conviction order is passed against the sentence of life imprisonment only arises when an appropriate authority passes an order under Section 432 or Section 433 of the Code. In the absence of such order, imprisonment for life would mean, imprisonment for the remainder of

life.(Emphasis supplied)

In 2005, long after  Bhagirath  case (ibid) was decided, the legislature added a proviso to the section 428 of the Code of Criminal Procedure, 1973 by an amendment that clarifies that the life convicts would also get the benefit of section 428. The language of section 428 of the Indian Code of Criminal Procedure is mandatory in nature. In the case of Ranjit Singh Vs. State of Panjab (2010)12 SCC 506, the view taken in Bhagirath (supra) was affirmed and the benefit of set-off mentioned in section 428 of the Indian Code of Criminal Procedure was given to the life convict. In the judgment under review reliance was placed on the case of Kartar Singh and others (supra) though the said case was overruled in the case of Bhagirath (supra).

In India, the reason which impelled introduction of section 433A of the Code of Criminal Procedure was that sometimes due to grant of remission even murderers sentenced or commuted to imprisonment for life were released at the end of 5 to 6 years. In order to circumvent this, the legislature incorporated section 433A of the Indian Code of Criminal Procedure by Act No.45 of 1978 providing that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where the sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life such person shall not be released from prison unless he had served 14 years including set-off as mentioned in section 428. By the aforesaid section, the Indian legislature has put a fetter on the appropriate Government by restricting its power of remission and commutation in case of a life convict to 14 years of actual imprisonment.

On consideration of original section 35A of the

Code of Criminal Procedure in Bangladesh and section 428 of the Indian Code of Criminal Procedure, we find that the original section 35A was introduced in 1991 but not in line with section 428 of the Indian Code of Criminal Procedure.

In Bangladesh subsequently section 35A of the Code of Criminal Procedure was substituted by section 2 of the Code of Criminal Procedure (Amendment Act,2003) (Act No.XIX of 2003). The substituted

section 35A is reproduced below:

“Deduction of imprisonment in cases where convicts may have been in custody-(1) Except in the case of an offence punishable only with death, when any court finds an accused guilty of an offence and, upon conviction, sentences such accused to any term of imprisonment, simple or rigorous, it shall deduct from the sentence of imprisonment, the total period the accused may have been in custody in the meantime, in connection with that offence.

(2)If the total period of custody prior to conviction referred to in sub-section (1) is longer than the period of imprisonment to which the accused is sentenced, the accused shall be deemed to have served out the sentence of imprisonment and shall be released at once, if in custody, unless required to be detained in connection with any other offence; and if the accused is also sentenced to pay any fine in addition to such sentence, the fine shall stand remitted.”

On comparison of original section 35A and

substituted section 35A, we find that the legislature knowing full well did not give the benefit of the discretionary power of the Court under section 35A to a person sentenced to imprisonment for life by the aforesaid un-amended provision. The legislature keeping in mind about the original section substituted section 35A where it has been stated that the benefit of section 35A will not be available in the case of an offence punishable only with death. This substituted section 35A also allowed the Court to deduct the sentence from the sentence of imprisonment for life the total period during which the accused was in custody in connection with that offence. By using the words ‘except’ and ‘only’ in section 35A the legislature intended to give the benefit of section 35A to the accused who have been sentenced to imprisonment for life also. 

In the judgment under review, it has been held that section 35A of the Code of Criminal Procedure is not applicable to an offence punishable with death or with imprisonment for life. But the original section 35A of the Code of Criminal Procedure has not been taken into consideration at the hearing of Criminal Appeal Nos.15-16 of 2010 from which this criminal petition for review has arisen. The judgment under review reveals that a convict cannot claim deduction of the period in custody prior to his conviction as of right and that it is a discretionary power of the Court and that it cannot be applicable in respect of an offence which is punishable with death (should have been imprisonment for life). Another finding of the judgment under review is that though the word ‘only’ is used in section 35A, the legislature without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code has inserted the word ‘only’ but the use of word

‘only’ will not make any difference since under the

scheme of the prevailing laws any remission/deduction of sentence has been reserved to the Government only.

Having gone through substituted section 35A of the Code of Criminal Procedure, it appears that there is no scope to say that the power conferred on the Court is a discretionary power. The language used in amended section 35A is clear and unambiguous and that the Court cannot disregard the intention of the legislature expressed in plain language and is to deduct the period of actual detention from imprisonment for life prior to his conviction.

It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute. In the field of interpretation of statues, the Courts always presume that the legislature inserted every part thereof with a purpose and the legislative intention is that every part of the statute shall have effect. It may not be correct to say that a word or words used in a statute are either unnecessary or without any purpose to serve, unless there are compelling reasons to say so looking to the scheme of the statute and having

regard to the object and purpose sought to be achieved (Sankar Ram & Co. Vs. Kasi Nicker and others (2003)11 SCC 699).

“Ut res magis valeat quam pereat”-the literal meaning of this maxim is that it is better for a thing to have effect than to be made void. According to Maxwell, the function of a Court is to interpret a statute according to intent of the legislature and in doing so it must bear in mind that its function is jus dicere not jus dare: the words of a statute must not be overruled by the judges, but reform of law must be left in the hands of Parliament(Maxwell- Interpretation of Statutes, 12th edition, page-1-2). It is a cardinal rule of construction that normally no word or provision should be considered redundant or superfluous in interpreting the provisions of a statute.

In the case of Shafiqur Rahman Vs. Idris Ali, (1985) 37 DLR (AD)71 it has been held that a cardinal principle of construction is that it must be presumed that the legislature does not use any word unnecessarily or without any meaning or purpose.

In the case of Shamsuddin Ahmad, Advocate Vs. Registrar, High Court of East Pakistan (1967) 19 DLR (SC) 483, it has been held that it is an universally accepted rule of construction that no words in a statute are redundant or surplusage. Meaning must be given to every word in a statute reading its provisions as a whole in a fair and impartial manner in the ordinary and general sense.

In view of principle expounded in the cases referred to above, it cannot be said that the word ‘only’ is used in section 35A of the Code of Criminal Procedure without considering section 401 of the Code of Criminal Procedure and section 53 of the Penal Code.      

Under substituted section 35A of the Code of Criminal Procedure, an accused is entitled to deduction of the actual period during which he was in custody prior to passing of his sentence from his sentence of imprisonment for life. 

In India, from the case of Pandit Kishori Lal Vs. The King-Emperor (1944) 26 ILR (Lahore)Privy Council 325, till date the consistent view is that life imprisonment means the whole of remaining life. But in most of these

cases, the dispute arose when the executive did give remission under different sections of the Indian Code of Criminal Procedure and when the Court debarred the executives from exercising the power of remission or from exercising such power until certain period. 

It has already been discussed that in the context of Bangladesh from the date of partition of India till pronouncement of the judgment under review, the consistent practice was that imprisonment for life be reckoned as 20 years rigorous imprisonment which is by subsequent amendment increased to rigorous imprisonment for 30 years as contained in amended section 57 of the Penal Code.

It is, however, true that section 57 of the Penal Code is for calculating fractions of terms of punishment for imprisonment for life which shall be equivalent to rigorous imprisonment for 30 years. Though section 57 of the Penal Code was enacted for calculating the fractions of the imprisonment for life, the period of imprisonment for life always deems to be rigorous imprisonment for 30 years (prior to amendment of section 57, it was rigorous imprisonment for 20 years). We were blessed with legendary Judges in this Court and while passing sentence under section 302 of the Penal Code, they used the statutory words”.......punished with death or imprisonment for life.......” without adding the words “till the end of the natural life of the convict” which are not in the statute. What would be the tenure of imprisonment for life has been left open to the executive who may or may not give remission. But under section 35A of the Code of Criminal Procedure power has been vested in the Court to deduct the period of incarceration undergone by the convict prior to passing of the verdict of sentence from the total period of sentence awarded.

In exercise of the power conferred by section 59, sub-section (5)of the Prisons Act,1894 (IX of 1894) Rules were made in chapter XXI of the Jail Code to regulate the shortening of sentences by grant of remission. Any remission calculated by jail authorities under the provisions of the Jail Code are to be referred to the Government for release under section 401 of the Code of Criminal Procedure. But such remission recommended by the Jail Authority cannot be turned down by the Government without assigning any valid reason in writing as the rules relating to remission under Chapter XXI of the Jail Code were made under the mandate of section 59(f) of the Prisons Act,1894.

In order to give a harmonious construction of sections 45 and 53 of the Penal Code, we have to read those two sections in conjunction with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure and we are of the view that imprisonment for life should be reckoned to a fixed period of rigorous imprisonment.

Interpretation of law is absolutely within the domain of Court and this question was settled long ago by the John Marshall, CJ in 1805 A.D. in the case of Marbury Vs. Madison (5 U.S. 137). Marshall’s famous lines in that case are, ”It is emphatically the province of the judicial department to say what law is.” Those famous lines are inscribed on the wall of U.S. Supreme Court in Washington, D.C.   

The power of commutation and remission as contained in the Penal Code, Code of Criminal Procedure and the Jail Code are within the domain of the executive Government and such privilege may be extended by the Government to the convicts undergoing imprisonment for life.

But the Courts have the jurisdiction in certain circumstances to pass an order directing that the accused shall not be entitled to the benefit of Penal Code, the Code of Criminal Procedure and the Jail Code in respect of commutation, deduction and remission and the details of such authority of the Court have been explained in the judgment written by my brother Hasan Foez Siddique,J.

In the light of the findings made before, I am of the view that the impugned judgment should be reviewed and a definite time frame has to be provided for imprisonment for life till the question is resolved by the legislature once and for all. 

C.J.

MUHAMMAD IMMAN ALI, J:-This criminal review petition is directed against the judgement and order dated 14.02.2017 passed by this Division in Criminal Appeal No. 15 of 2010 maintaining the conviction passed by the High Court Division and commuted the order of sentence to imprisonment for rest of his natural life.

The facts of the case in brief are that Druto Bichar Tribunal, Dhaka vide its judgement and Petition order dated 15.10.2003 convicted the petitioner, Ataur Mridha @ Ataur and two others under sections 302/34 of the Penal Code and sentenced them to death in Druto Bichar Tribunal Case No.34 of 2003. Reference was made to the High Court Division for confirmation of the sentence of death, which was registered as Death Reference No.127 of 2003. The petitioner filed Criminal Appeal No.3895 of 2003 and Jail Appeal No.739 of 2003before the High Court Division against the said judgement and order of the Druto Bichar Tribunal. After hearing the death reference and the criminal appeal along with the jail appeal, the High Court Division by judgement and order dated 30.10.2007  acceptedthe reference, dismissed the appeal, thus maintained the conviction, and confirmed the sentence of death of the petitioner and the other two absconding condemned convicts. The petitioner filed Criminal Petition for Leave to Appeal No.116 of 2008 and co-convict Md. Anwar Hossain filed Criminal Petition for Leave to Appeal No.136 of 2008 before this Division, which upon hearing leave was granted and the cases were registered respectively as Criminal Appeal Nos.15 and 16 of 2010.By the judgement and order dated 14.02.2017 this Division dismissed both the appeals and maintained the conviction but commuted the sentence of death of the appellants to “imprisonment for rest of the life”.

The appellant in Criminal Appeal No.15 has filed the instant petition to review the judgement and order of this Division.

On behalf of the petitioner, it was argued that this Division committed error apparent on the face of the record in failing to

reconcile with the previously pronounced judgement of a co-equal Bench of the same Division dated 13.04.2013. This was on the same point of law as reported in 19 BLC (AD) 204 and as such has rendered the impugned judgement of the Appellate Division as being‘per incuriam’ and, thereby, created judicial anarchy and the resulting in inconsistency and uncertainty in the law of the land relating to computation of period of custody for convicts who have been sentenced to imprisonment for life. This Division committed error apparent on the face of the record in failing to harmoniously interpret the provisions of Article 152 of the Constitution of the People’s Republic of Bangladesh, section 57 of the Penal Code, 1860, section 35A of the Criminal Procedure Code, 1898, section 59 of the Prisons Act, 1894, Chapter XXI (remission) of the Jail Code and the previous judgement of a co- equal Bench of the same Division, and as such, the impugned judgement is liable to be reviewed by this Division in order to ensure certainty and consistency in the law of the land. This Division committed error apparent on the face of the record in failing to appreciate that Rule 751 of Chapter XXI of the Jail Code which provides that ‘life convict means a prisoner whose sentence amounts to 30 years imprisonment’ having been framed pursuant to section 59 of the Prisons Act, 1894 (Act No.IX of 1894) falls within the definition of law as contained in Article 152 of the Constitution of the People’s Republic of Bangladesh, and as such, the findings of this Division in the impugned judgement that ‘this conversion of life sentence into one of fixed term by the Jail Authority is apparently without jurisdiction'

suffers from infirmity in law and is liable to be set aside. This Division committed error apparent on the face of the record inasmuch as the impugned judgement, without assigning proper reason, negated the application of the provision of section 35A  of the Code of Criminal Procedure, 1898 regarding computation of periodof custody for life convicts thereby frustrating the intention of the legislature as contemplated by the Code of Criminal Procedure (Amendment) Act, 2003 (Act No.XIX of 2003), and as such, the impugned judgement having usurped the functions of the Legislature and violated the principle of separation of powers, the same is bad in law and liable to be set aside for ends of justice.

It was further argued that at the time of hearing the appeals of the convicts before this Division, the facts of the occurrence and the trial culminating in conviction of the accused of offences under sections 302/34 of the Penal Code were not under challenge. The only prayer in the appeal was for commutation of the sentence of death to one of imprisonment for life. By the impugned judgement and order, the death sentence of the appellants was commuted, but the life imprisonment was for the rest of the appellants’ life. And that is now under challenge in this review.

On a broader perspective, in this review we are concerned with sentencing in cases where serious and the most heinous offences are committed which result in imposition of the death sentence or imprisonment for life, but primarily the point in issue is the length of the period that a convict would serve when sentenced to imprisonment for life.

Sentencing is never an easy task for any judge, more so because it concerns the life/liberty of a citizen, though convicted of a crime, whose interests are also protected by the Constitution and the law. In the absence of sentencing guidelines, the decision on the sentence to be awarded is bound to be subjective and guided by the perception and degree of abhorrence created in the mind of the trial/appellate judge. It is also human nature for some persons to be more disgusted by certain types of offences, while others may have a different perception about the commission of any particular type of crime. Equally, some may be abhorred to the extreme by a crime that is against a child as opposed to an adult victim. Hence, subjectivity in sentencing will remain and will be guided by human vagaries, until objective criteria are set out in guidelines. Of course, it cannot be denied that such objective and sometimes mathematical guidelines will take away the human element often applied by judges in exercising their discretion. But unless guidelines are given, uniformity in the sentencing process cannot be achieved. Moreover, in our criminal justice process, there is no date fixed for a separate sentence hearing; hence, there is no scope for the accused to plead any mitigating facts or extenuating circumstances which might help to reduce his sentence.

The matters in issue in this review have been elaborately and painstakingly discussed by my esteemed, learned brother Hasan Foez Siddiqui, J. and I need not repeat the same. Suffice it to say that the matter before us concerns the duration of a sentence of imprisonment for life; whether it is till the end of the last breath of the prisoner or whether it can be for a term which may end at any time after the date of conviction and before the prisoner dies.

The other substantive issue arising in this case relates to whether the convict, who has been sentenced to imprisonment for life, is entitled to deduction of the period spent in jail during the trial from his sentence. It is in this regard that I could not agree with the majority view and feel constrained to write a separate judgement expressing my own views.

In the impugned judgement this Division took into consideration the definition of ‘life' under section 45 read with section 57 of the Penal Code. The sum and substance of the decision is that in offences punishable with death which are commuted to imprisonment for life, there is necessity to direct that the prisoner serves in prison for the rest of his natural life in view of the gross and heinous nature of the offence. It was further held that deduction of the period of custody during enquiry, investigation or the trial process would not be allowable taking in aid section 35A of the Code of Criminal Procedure. Reliance was placed, amongst others, on the decision of the Indian Supreme Court in the case of  Swami Shraddananda vs. The State of Karnataka and another, (2016) SCC 1.In this regard, it was held that,“Section 35A of the Code of Criminal Procedure is not applicable in case of an offence punishable with death or imprisonment for life. An accused person cannot claim the deduction of the period in custody prior to the conviction as of right. It is a discretionary power of the court”. Perhis Lordship Mr. S.K. Sinha, C.J.

To appreciate the provision of deduction of any period of custody from the ultimate sentence of imprisonment imposed upon any convict, it is necessary to consider that the idea behind incarcerating any convicted criminal is to ensure that he does not commit any further offence, that society is kept secure from his criminal activity and that he realises his wrong and is deterred from engaging in any further criminal activity. The obvious result of incarceration is that the convict criminal is deprived of his liberty and is confined in institutional custody, i.e. prison.

There is no difficulty in understanding that if a convicted person is sentenced to imprisonment for ten years and during the period before his conviction, he had suffered five years in jail, then the five years of custody before conviction would be deducted from his final order of sentence of imprisonment because he would have already suffered the loss of liberty inside the jail while the trial was going on.

This provision giving benefit of deduction of time spent in custody by the convict before his conviction was enacted by the Code of Criminal Procedure (Second Amendment) Ordinance, 1991 by introducing section 35A of the Code of Criminal Procedure, which provided for deduction from the period of sentence awarded any period that the convict spent in custody before his conviction. At that time, the provision did not apply to convicts sentenced to death or imprisonment for life. Section 35A of the Code was amended in 2003, as a result of which the deduction of the period of custody before conviction was made mandatory for those convicts who were sentenced to imprisonment for life. Thus, the amendment in 2003 purposely gave benefit to a convict imprisoned for life to have that period of pre-conviction custody deducted from his sentence. Hence, when any convict is sentenced to imprisonment for life it shall be the duty of the Court to deduct the period spent in custody before his conviction from the sentence awarded. There can be no doubt that the provision is mandatory.

Before amendment in 2003 section 35A provided as follows:

“35A. Term of imprisonment in cases where convicts are in custody- Where a person is in custody at the time of his conviction and the offense for which he is convicted is not punishable with death or imprisonment for life, the Court may in passing the sentence of imprisonment, take into consideration the continuous period of his custody immediately preceding his conviction.

Provided that in the case of an offence for which a minimum period of sentence of imprisonment is specified by law, the sentence shall not be less than that period.” [s.2 The Code of Criminal Procedure (Second Amendment) Ordinance 1991.]

This provision was amended by s.2 of the Code of Criminal Procedure (Amendment) Act, 2003, which is currently in force and provides as follows:

“35A. Deduction of imprisonment in cases where convicts may have been in custody.- (1) Except in the case of an offence punishable only with death, when any Court finds an accused guilty of an offence and upon conviction, sentences such accused to any term of imprisonment, simple or rigorous, it shall deduct from the sentence of imprisonment, the total period the accused may have been in custody in the meantime, in connection with that offence.”

The word “may” appearing in the earlier law was changed to “shall”. Hence, there cannot be any doubt that the provision is now mandatory, and the duty is upon the Court to make the deduction of the period spent by the convict in custody before pronouncement of judgement from the sentence awarded.

A Court cannot take away the benefit given to a citizen by law. When a law is enacted by a democratic Parliament every citizen is duty bound to abide by it. Equally, no Court of law can ignore a mandatory provision of a validly enacted statute without first striking down that provision as ultra vires the Constitution.

Accordingly, in the case of any convict sentenced to any term of imprisonment, including imprisonment for life, the Court passing sentence shall deduct the total period spent by the convict in custody in connection with that offence before the date of his conviction, as provided by section 35A of the said Code.  

However, to give effect to the provision of law, in case of any convict sentenced to imprisonment for life, difficulty arises because there is no quantification of life imprisonment; it is an indeterminate period. The Legislature could easily have added a provision in aid of section 35A of the Code that for the purpose of the deduction, life imprisonment shall be taken to be equivalent to 30 years (or any other figure deemed appropriate by the Legislature).The problem can be solved just as easily by a small legislative amendment to that effect. However, until such time, in calculating what is the duration of a life sentence, the yardstick provided in section 57 of the Penal Code for calculating fractions of a sentence of life, may be used in aid of section 35A of the Code of Criminal Procedure. Alternatively, the benefit can be given by reference to the other benefits provided under the Jail Code where rule 751 provides that life convict means, for a class I and class II prisoner, imprisonment for 25 years, and 20 years for a class III prisoner. In the same vein, the benefit of deduction may be given by use of the provision under section 57 of the Penal Code, as was suggested by the Supreme Court of Pakistan in Bashir and 3 Others Vs. The State, PLD 1991 (Supreme Court) 1145, per Rustam S. Sidhwa, J. who pointed out that “in respect of a sentence of imprisonment for life which is treated as one for 25 years under Section 57 of the Penal Code, but it is basically for the limited purpose of the remission system.” Certainly, rather than deny the benefit to a convict because of a lacuna in the law, the Court should follow the Latin maxim “ubi jus, ibi remedium”, meaning, where there is a right, there is a remedy. Undoubtedly, the right to a remedy is a fundamental right recognised in all legal systems. In the present scenario, the right to have the period of under-trial custody deducted from the ultimate sentence, including sentence of life imprisonment, is a right enshrined in law and cannot be taken away due to inadequacy in the system in not specifying the yardstick with which to calculate the deduction from the sentence of imprisonment for life, which is clearly intended to be allowed under the amended law.

It must be clearly understood that whereas the benefits by way of remission, commutation, pardon etc. are discretionary, the benefit of deduction under section 35A of the Code of Criminal Procedure is mandatory. The grant of benefits by way of remission etc. under the Jail Code and the Code of Criminal Procedure are not within the function of the Court, whereas the deduction mentioned under section 35A is a duty imposed squarely upon the Court.

On the question of sentence, I have to say first and foremost that the Supreme Court is neither above nor beyond the law of the land and is bound to award a sentence which is permitted by law. Hence, when awarding sentence for an offence under section 302 of the Penal Code, just as the Supreme Court could not award a sentence of “rigorous imprisonment for 20 years”, it cannot also award a sentence of “imprisonment for rest of the life”. Neither of those two punishments mentioned is permitted by the Penal Code. Section 302 provides that, “Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.” Without amendment of the Penal Code, when an accused is convicted of an offence under section 302 of the said Code, the Supreme Court or any other Court cannot award any sentence of fixed term of imprisonment for a finite number of years nor “imprisonment for the natural life” or any such term. Equally, when commuting the sentence of death, a Court cannot award any sentence other than that provided by the law, which in the case of conviction under section 302 would have to be “imprisonment for life”.

Moreover, there is no provision in the law to distinguish between a convict who has been sentenced to imprisonment for life at the first instance and a convict whose sentence of death is commuted to one of imprisonment for life. In both cases, imprisonment for life must have the same meaning. The fact of commuting the sentence from death to imprisonment for life signifies that the culpability or heinousness is recognised by the appellate Court as lesser than was perceived by the trial Court. That is not to say that two convicts having exerted different degrees of heinousness in the commission of murder, will not be treated differently when exercising any discretion to release the prisoner from custody under any law which allows such release. Whichever authority, be it executive or judicial, considers early release, must take into consideration the propensity of the convict to do further harm to the community.

The wording of section 45 of the Penal Code is such that sentence of life imprisonment  per semeans that the imprisonment shall be for the rest of the convict’s natural life. To give the section any other interpretation would, in my humble opinion, be wrong. Hence, to mention that the life imprisonment would be for the “rest of the convict’s natural life” would be superfluous. In the case of Rokia BegumVs. State,13ADC(2016)311,it was held that to say that life sentence means 22½ years’ of imprisonment “as used in Bangladesh is utterly a misnomer; indeed it appears to be an erroneous interpretation.”The interpretation of the term “life imprisonment” in the Penal Code means ‘life till death’. However, that is not to say that any convict sentenced to imprisonment for life will necessarily end his days in prison until he dies. The sentence, unless reversed on appeal, will remain, but still the prisoner may be released due to benefits provided by any other law. As I shall discuss later, provisions of other statutes and laws are to be implemented according to the demands of those statutes and laws. Hence, where the Constitution or provision of another law allows the convict to be released from jail before he dies, then that provision is equally worthy of implementation, if any other required qualifications of that law is met. This aspect will be discussed below.

At this juncture one may profitably look to see how India and Pakistan, who have similar legal provisions, have dealt with the matter of life imprisonment. The Penal  Code of Bangladesh has the same origin as that of  India and  Pakistan. However, over the  years Pakistan appears to  have settled views regarding the meaning of life imprisonment. The Supreme Court of Pakistan has held in some cases that life imprisonment means imprisonment till the end of the convict’s life but went on to conclude that it is the accepted view that life imprisonment means imprisonment for 25 years. This has been decided in view of the provision in section 57 of the Pakistan Penal Code, rule 140 of the Pakistan Prison Rules, 1978 framed under the Prisons Act which provide that “imprisonment for life” would mean 25 years. With respect, such view does not do justice to the language used in section 57 of the said Code, which provides that, “57. Fractions of terms of punishment. In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for 25 years.” [the corresponding period of imprisonment in section 57 of the Penal Code is 20 years in the case of India and 30 years in the case of Bangladesh].

In my humble opinion, the section quoted above does not say that life imprisonment is equivalent to 25 years, nor should we overlook the fact that the equivalence is meant for the purpose of reckoning/calculating fractions of terms of imprisonment, for example, to give benefit of awarding a lesser sentence to a convict who abets the commission of an offence which is not committed in consequence of that abetment [section 116 Penal Code]. Similarly, for the purpose of giving benefits of remission under the Jail Code, life imprisonment is to be reckoned as 25 or 20 years, depending on the gravity of the offence. Thus, quantifying the term “imprisonment for life” to any duration measured in years is a legal fiction created in order to give benefit. Hence, it can be categorically stated that life imprisonment is not 20 or 25 or 30 years, but for the sake of calculating any benefit to be given to a convict, it can be reckoned to be equivalent to a finite term of years.

The Supreme Court of India has decisively taken the view that life imprisonment means till the end of the convict's natural life. Bangladesh, in my humble opinion, has now correctly taken the same view. The most quoted decision in this regard is Vinayak Godse v. The State of Maharastra and others, AIR 1961 SC 600, where the Indian Supreme Court held, per K. Subba Rao, J.

“Section 57 of the Indian Penal Code has no real bearing on the question

raised before us. For calculating fractions of terms of punishment the

section provides that transportation for life shall be regarded as equivalent

to imprisonment for twenty years. It does not say that transportation for life

shall be deemed to be transportation for twenty years for all purposes; nor

does the amended section which substitutes the words "imprisonment for

life" for "transportation for life" enable the drawing of any such all-

embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life.”

A similar view was taken by the English Court of Appeal in R. v. Foy, 1962 All ER 246, where it was held as follows:

“Life imprisonment means imprisonment for life. No doubt many people come out while they are still alive, but, when they do come out, it is only on license, and the sentence of life imprisonment remains on them until they die.”

Thus, clearly there is the recognition that even a convict sentenced to imprisonment for life may yet leave the prison before he dies. However, one must consider that just as the sentence of death is the end of all hopes, it is the end of everything, so is the sentence of life imprisonment till the end of the convict’s natural life. In the USA this is termed as life without parole and in England the Courts have the discretion to specify a “whole life order”, which means that the convict will spend his whole life behind bars. The only hope that remains in the prisoner is that he will live and breathe the air within the prison precincts until his death within the walls of the prison. It is a fate worse than death because the prisoner will continue to breath every moment in the knowledge that he will never again live with his family and within the community where he spent the best part of his life. A similar observation was made in the decision of Rokia Begum, cited above where reference was made to the case of the Yorkshire Moors murders where both convicts had been sentenced to imprisonment for life. One of the convicts died in prison and the other convict was declared insane and repeatedly asked to be allowed to die. That case clearly shows that for a criminal sentenced to imprisonment for life meaning the rest of his life, death would have been a less punitive option. Hindley who was sentenced to imprisonment for life in 1966 just after the death penalty was abolished wrote in a letter; "I knew I was a selfish coward but could not bear the thought of being hanged. Although over the years wish I had been" (as reported on BBC news dated 29.02.2000).

Commuting the sentence of death to imprisonment for life is in a  way giving back hope to the convict that one day, maybe soon he will re-join his family. Having commuted the death sentence, telling any convict that he will spend the rest of his life in jail until the day he dies is taking away the goodness in life; it is worse than the sentence of death. It takes away the hope that he may once again live a normal life within the community, amongst his loved ones. Every day he will live with the thought that he will die within the precincts of the jail and only his dead body will be given back to his family for burial.

The Constitution, the Penal Code, the Code of Criminal Procedure and the Jail Code allow for pardon, reprieve, respite, commutation, reduction, suspension and remission of sentence. Taking away such powers would tantamount to overriding the Constitution/statute, which cannot be done by any Court or Tribunal. It is Parliament which has the constitutional mandate to enact laws. Courts of law are mandated to ensure that the law is implemented. Courts cannot make law. The High Court Division has power to declare any law enacted by Parliament to be ultra vires the Constitution but cannot make law or suggest how any law is to be formulated or enacted.

The President has a prerogative power under article 49 of the Constitution to grant pardons, reprieves and respites and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. This is confirmed by the Penal Code and Code of Criminal Procedure. Section 55A of the Penal Code provides that the Government’s power to commute any sentence shall not derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment. The power of the President and power of the Government are constitutional/statutory powers which cannot be whimsically taken away. The Supreme Court has no authority to question the exercise of prerogative power of the President and only has the limited power to declare a statute or any provisions therein as ultra vires the Constitution, but until such time as it is declared ultra vires, the provisions of the statute are binding on all.

Hence, the provisions of the Constitution, the Penal Code, Code of Criminal Procedure, Jail Code, containing Rules enacted under power given in section 59 of the Prisons Act 1894 and any other law giving benefits to an accused or convicted person, are nevertheless discretionary. But discretion is to be exercised in favour of the accused or convicted person where the circumstances demand. Any remission calculated by the jail authorities under the provisions of the Jail Code are to be referred to the Government under section 401 of the Code of Criminal Procedure, to be considered for release of the prisoner. It is the discretion of the Government whether to exercise the powers of suspension or remission of sentence under section 401 of the Code of Criminal Procedure. The Government may require the Judge who passed the order of conviction or who confirmed the conviction on appeal to state his opinion as to whether the application should be granted or refused. It is also provided in section 401 of the Code of Criminal Procedure if any condition on which a sentence has been suspended or remitted is not fulfilled, the Government may cancel the suspension or remission, in which event the convict will have to undergo the unexpired portion of the sentence. This reinforces the view that the sentence of the convict remains as it was ordered by the trial Court and that only the punishment is suspended or modified.

It must be noted, however, that neither the constitutional power of the president nor the statutory power of the Government authorizes or in any way interferes with the order of conviction. Any conviction and sentence passed upon an accused found guilty of an offence remains valid until and unless it is overturned by any appellate or revisional court. Hence, the grant of pardon by the President allows the convict to go free but does not efface the finding of guilt and the conviction pronounced by the Court, nor does it extinguish the sentence. Similarly, any suspension, commutation, remission etc. of any sentence does not cancel or efface the order of sentence passed by the Court. The action of the President/Government simply allows the convict freedom from incarceration. The conviction and sentence remain on the record.

On the other hand, should a convict who has committed an abominable act which makes one shudder to the bone and for which the trial Judge expresses his abomination and orders that the convict ought not to be let out at all until he dies, for the sake of protecting the society from him, be released? Even in those circumstances there may arise some extenuating situation when humanity would call for his release. In that case it would not be right to put the judiciary in a straitjacket and compel an order requiring the convict never to be released. That would be tantamount to taking away the right of the Court to exercise discretion to act with common humanity. When any extenuating circumstance is brought to the notice of the Court, even if the original order was for the convict to die in jail, the Court may decide to release the convict for any specified length of time or release specifying conditions, considering the safety and security of the community. That gives the convict some hope that he will not necessarily die in jail. The other side of the coin is that, in any event, the President or the Government can at any time exercise power under the Constitution/the relevant law to grant his release.

It does not make sense to tell a convicted person that the death sentence is commuted to imprisonment for life, but he will not be permitted to leave the prison till his last breath because essentially the convict is being told that he is being sentenced to die in prison.

The conviction is never effaced other than by reversal on appeal or by way of revision. The sentence is for life and unless reduced on appeal or through revision it will remain so. If he is released before his death, it does not mean that the sentence is lesser than life. His sentence remains, but he gets the benefit of provisions of law which allow reduction of his period of incarceration or early release. His release into freedom may be curtailed in case of breach of any conditions and the sentence is revisited/revived resulting in his return to custody to serve out the rest of the unexpired sentence.

The Penal Code in section 54 provides that “In every case in which sentence of death shall have been passed, the Government may, without the consent of the offender, commute the punishment for any other punishment provided by this Code.”Section 55 of the said Code provides that in every case in which sentence of imprisonment for life shall have been passed, the Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding 20 years. Section 55A of that Code provides that nothing in section 54 or section 55 shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment. Section 402A of the Code of Criminal Procedure provides that the powers conferred by sections 401 and 402 of the said Code upon the Government may, in the case of sentences of death, also be exercised by the President.

Mr. Khandker Mahbub Hossain arguing in favour of the review, brought to our notice several decisions of the Supreme Court of India wherein life sentence was awarded specifying that the terms of imprisonment shall not be less than 20 years, 25 years, or 30 years. He pointed out that, on the other hand, the Supreme Court of Pakistan has consistently held that life imprisonment is to be taken as equivalent to 25 years' rigorous imprisonment. He pointed out that the Courts in the United Kingdom when passing a life sentence specify the minimum term or tariff which an offender must spend in prison before becoming eligible to apply for parole. For example, where murder is committed with a knife or other weapon, the starting point is 25 years before which the prisoner would not be considered for release on parole. Exceptionally, it is specified that the offender will spend the rest of his life in prison. This is termed as a “whole life order” and is applied in the most serious cases such as those of serial killers. The position in the United States of America is that in most States it is required that a prisoner be considered for parole after a certain period of time as specified by the Court. He submitted that since in Bangladesh the criminal jurisprudence had developed considering life imprisonment to be 30 years in prison, that should be allowed to continue until such a time as and when the law is changed.

It appears that the argument on behalf of the review petitioners has stemmed from the interpretation of section 57 of the Penal Code, which provides, “In calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for thirty years.” According to Mr. Khandker, the interpretation of this provision has always been to the effect that a sentence of imprisonment for life shall mean imprisonment for 30 years. In addition, the prisoner has been entitled to remission and other deductions under different provisions of law, such as the Penal Code, Code of Criminal Procedure, Prison Act and the Jail Code. He submitted that the provision appearing in section 45 of the Penal Code must be read harmoniously with the provisions in section 53, 54 and 55A of the Penal Code, which clearly indicate that life imprisonment need not necessarily be for the entire remaining life of the prisoner. However, for the reasons stated above, I would agree with Mr. Khandaker that life imprisonment need not necessarily mean incarceration for the rest of the prisoner’s life, but I am constrained to take the view that the provision in section 57 of the Penal Code does not mean that imprisonment for life is equivalent to imprisonment for 30 years.

I may add at this juncture that the benefits of remission, deduction etc. available to a convict under the Code of Criminal Procedure will not be available to any convict serving a sentence for an offence under the International Crimes (Tribunals) Act, 1973, because section 23 of the said Act specifically excludes the application of the provisions of the Criminal Procedure Code, 1898 in any proceedings under the said Act. For ease of reference section 23 of the Act, 1973 is quoted below:

“23. The provisions of the Criminal Procedure Code, 1898 (V of 1898), and the Evidence Act, 1872(I of 1872), shall not apply in any proceedings under this Act.”

Finally, there is one other aspect that I wish to advert to regarding

sentencing policies. We find that in many countries, including England, after a

sentence of life imprisonment is imposed the Judge may specifically order that the prisoner is not to be released before the expiry of a term of years which can be any number of years ranging from 10 to 60 years or even for the rest of his natural life, so long as the Judge follows the sentencing guidelines issued by the appropriate authority. In the past the Lord Chief Justice sitting in the Court of Appeal issued sentencing guidelines by way of judgments. The Sentencing Council for England and Wales was established in April 2010, replacing the Sentencing Guidelines Council and the Sentencing Advisory Panel, its predecessor bodies.

Since 2008, following the decision in Swamy Shraddananda v. State of Karnataka (2008) 13 SCC 767, the Supreme Court of India has adopted the practice of expressing in the judgement that the convict shall not be released until after the expiry of a fixed number of years specified by the Court. In the Shraddananda case, it was observed that where the death sentence would not be appropriate, and the Court strongly felt that a sentence of life imprisonment subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate, the Court may be tempted to impose the death sentence. It was decided that “A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the Court i.e. the vast hiatus between 14 years' imprisonment and death.” Their Lordships went on to hold that “…we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be.”This has been followed in subsequent decisions. Some of those have been discussed in the majority judgement and hence I shall refrain from repeating those. The type of sentencing order passed by the Supreme Court of India is similar to the practice followed by the English Courts and is abundantly appropriate giving the Court the discretion to ensure that a convict who committed a most heinous crime is not let loose into society at its peril. However, the scheme followed in England and Wales is based on official authoritative guidelines, whereas the decisions of the Supreme Court of India are based on authority of earlier judgement of the same Court and are open to subjective opinions based on the individual judge’s perception of the gruesomeness or heinousness of the crime.

In Bangladesh there is no specific authority to issue any sentencing guidelines and as a result Judges are guided only by the sentences provided in the Penal Code and other special laws, and life sentence, in some cases, turns out to be a relatively lenient sentence, when under the earlier interpretation convicts were released after expiry of 22½ years in custody. It is in this backdrop that many Judges choose the sentence of death for crimes which they consider to be most heinous since that effectively is the harshest punishment.

Some guiding principles may be gleaned from the judgements of this Division, but those are only in relation to specific cases. There are no general guidelines which may be followed by the Judges of the trial Court. Had there been any provision in our law or in guidelines for gradation of the life sentence or for expressing the view that the convict shall not be released during his lifetime, or for a specified number of years, then perhaps the Judges would opt for the longer life imprisonment, rather than the death penalty. The sentence would still be “imprisonment for life” but the Judge would be able to pronounce the minimum number of years that the convict would serve in prison, thereby reflecting the heinousness of the crime.

Moreover, as we have explained above, the trial procedure does not allow for any effective plea in mitigation after the verdict is pronounced. As a result, sentencing in most cases is arbitrary and there is no scope for the accused to plead for a lesser sentence or for the trial Judge to consider any mitigating circumstances since there was no opportunity to place any before him. The reintroduction of a date to be fixed for sentence hearing which existed in our law earlier, would go some way towards allowing the accused to plead mitigation or extenuating circumstances at the time of sentence hearing.

The provision of a sentence hearing in conjunction with the ability of judges to specify the minimum number of years that a convict is to serve in custody before early release would result in a fairer and more rational sentence.

In the light of the above discussion, the following are the conclusions that I would draw:

1. In view of section 45 of the Penal Code, “life imprisonment” mentioned in passing sentence on any convict found guilty of any offence means the whole of the remainder of the natural life of the convict, i.e. unless the sentence is set aside or modified by an appellate authority it will remain in force until his death. This will be applicable to anyone sentenced to imprisonment for life at the conclusion of a trial, appeal, revision or review and anyone whose sentence of death is commuted to imprisonment for life. However, early release may be ordered to give effect to benefits accruing under any other law.
2. In section 57 of the Penal Code, the phrase “imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for thirty years” is applicable for the purpose of calculating fractions of terms of punishment occurring in the Penal Code where calculation of fractions of terms of punishment is mentioned.

3. Remission or reduction of sentence is discretionary and cannot be claimed as of right and shall, in the case of a sentence of imprisonment for life, be subject to approval by the Government, as provided in the Code of Criminal Procedure and the Jail Code. In case of benefits to be given under the Jail Code, the duration of imprisonment for life shall be calculated in accordance with rules 751(f) of the said Code. A convict sentenced to imprisonment for life shall be entitled to be considered for release at any time before his death on account of remission for the period allowed by the jail authority due to good behaviour or services rendered while in prison, as provided by the Jail Code. But these are matters beyond the function of any Court.
4. The discretion of the President to grant pardons, reprieves, respites and to remit, suspend or commute any sentence under the Constitution, the Penal Code and the Code of Criminal Procedure shall not be fettered in any manner.
5. Early release may be subject to any reasonable condition to be imposed by the sentencing Court as mentioned in section 401(2) to (4A) of the said Code. Despite any reduction of sentence by way of remission or otherwise, it must be explained to the convict that the sentence of imprisonment for life shall remain and that he may be sent back to jail to serve the rest of his sentence if he is found in breach of any condition imposed upon him at the time of his early release.

6. There is no distinction between life imprisonment awarded on commuting sentence of death to imprisonment for life and the sentence of imprisonment for life awarded by any Court of first instance or appellate or revisional Court. But when considering early release, the authority concerned shall consider whether it is appropriate to do so in view of the heinousness of the offence and the safety and security of the public.
7. Time which any convict spends in custody before the date of his conviction shall be deducted by the Court at the time of pronouncing sentence. The aggregate period spent in custody shall be ascertained from the jail authority. As an ad-hoc measure, until appropriate amendment is made in aid of section 35A of the Code, in case of awarding sentence of imprisonment for life, the deduction of custody period during trial shall be made on the basis that life imprisonment is equivalent to rigorous imprisonment for 30 years.

In view of the above discussion, the judgement under review calls for interference and the review petition is accordingly disposed of in the light of the observations above.

J.

Hasan Foez Siddique, J: This criminal review petition is directed against the judgment and order dated 14.02.2017 passed by this Division in Criminal Appeal No.15 of 2010 maintaining the order of

conviction of the review petitioner and commuting the sentence  of death with a direction to suffer imprisonment for rest of his natural life.

Earlier Druto Bichar Tribunal, Dhaka by its judgment and order dated 15.12.2003 convicted the petitioner Ataur Mridha @ Ataur and Anwar Hossain under sections 302/34 of the Penal Code and sentenced them to death in Druto Bichar Tribunal Case No.111 of 2003 on the charge of killing one Jamal on 16.12.2001 when he was gossiping with P.W.2 Aftabuddin, P.W.4 Abdul Barek and P.W.5 Md. Yeamin, beside the road adjacent to Charbag Madrasha. The accused persons shot the victim causing his death on the spot. He preferred Criminal Appeal No.3895 of 2003 in the High Court Division and the Tribunal sent the case record in the High Court Division for confirmation of sentence of death, which was registered as Death Reference No.127 of 2003. The High Court Division heard the said criminal appeal and death reference together and accepted the death reference and dismissed the criminal appeal  by  a  judgment  and  order dated 29.10.2007  and 30.10.2007. Against the same, the petitioner preferred Criminal Appeal No.15 of 2010 in this Division wherein this Division maintained the conviction but commuted the sentence to imprisonment for rest of his natural life by a judgment and order dated 14.02.2017. The petitioner now has preferred this review petition for consideration.

Mr. Khandaker Mahbub Hossain, learned Senior Counsel appearing for the review petitioner, without entering into the merit of the case, simply submits that in view of the provision of Section 57 of the Penal Code, Section 35A of the Code of Criminal Procedure,

Section 59 of the Prisons Act, 1894 and chapter XXI of the Jail Code the petitioner is entitled to get reduction and remission of sentence, the order of awarding sentence to the petitioner till his natural death deprives him from getting statutory benefits which has caused a  failure of justice. He submits that a life convict is entitled to have the benefits in two stages, those are: (1) deduction and (2) remission, but the judgment under review rendered those benefits nugatory. He further submits that the Government is empowered to suspend/remit/commute the sentence of life convict  exercising its power conferred under sections 401 and 402 of the Code of Criminal Procedure read with section 55 of the Penal Code. According to Mr. Hossain, for the purpose of calculating the period of sentence of imprisonment for life, the same should be reckoned as equivalent to rigorous imprisonment for 30 years as the base term, otherwise, the interpretation of section 57 of the Penal Code would result in apparent discrimination and intention of the legislature would be frustrated and rendered a portion of section 397 of the Code of Criminal Procedure nugatory. He, lastly, submits that formulation of a reasoned and comprehensive sentencing guideline is the only solution in this regard and, thus, he proposed the formation of a sentencing Commission to be constituted by experienced personalities to table the same for consideration. Mr. Hossain in his submission relied upon the cases of Union of India and others Vs. Dharam Paul reported in MANU/SC/0627/2019; Sachin Kumar Singhraha Vs. State of Madhya Pradesh reported in AIR 2019(SC) 1416; Dnyaneshwar Suresh Borkar Vs. State of Maharastra reported in

AIR 2019 SC 1567; Nanda Kishore Vs. State of Madhya Pradesh reported in 2019(1) SCALE 500; Viral Gyanlal Rajput Vs State of Maharastra reported in (2019) 2 SCC 311; Babasaheb Maruti Kamble Vs. State Maharastra reported in 2018(15) SCALE 235. Tattu Lodhi Vs. State of Madhya Pradesh reported in (2016) 9 SCC 675; Amar Singh Yadab Vs. Estate of UP reported in (2014) 13 SCC 443; Sahib Hossain Vs. State of Rajstan reported in (2013) 9SCC 778; Gurvail Singh and others Vs. State of Punjab reported in (2013) 2 SCC 713 and some other cases.

Mr. Mahbubey Alam, learned Attorney General appearing for the State, submitted that the sentence of imprisonment for life means imprisonment for the remainder of that person’s natural life. He submitted that there is no scope to make any interpretation that life sentence means other than that of a person’s natural life. He, further submitted that when Penal Code provides for only two kinds of punishments under sections 302/34 that is, death or imprisonment for life; the court, cannot introduce a third category of punishment which would be contrary to the provisions of law. He, lastly, submitted that the prescription of sentence is within the domain of the legislature and the Court can only impose such sentence what has been provided for by the legislature. Mr. Alam relied upon the following decisions:-

Kishori Lal Vs. Emperor reported in AIR 1945 (PC)64; Gopal Vinayek Godse Vs State of Maharastra reported in (1961) 3 SCR 440; State of Madhya Prodesh Vs. Ratan Singh and others reported in (1976) 3 SCC 470; Dalbir Singh and others Vs. State of Punjab reported in (1979) 3 SCC 745; Kartar Singh and others Vs. State of Hariyana reported in (1982) 3SCC 1; Ashok Kumar @ Gulu Vs. Union of India reported in (1991) 3SCC 498; Maru Ram VS. Union of India reported in (1981) 1 SCC 107; Subash Chander Vs. Krishan Lal and others reported in (2001) 4 SCC 458; Mohammad Munna Vs. Union of India and others reported in (2005) 7 SCC 417; Swamy Shraddananda @ Murali Monohar Misra (2) Vs. State of Karnataka reported in (2008) 13 SCC 767; Sangeet and another Vs. State of Haryana reported in (2013) 2 SCC 452; Union of India Vs. V. Sriharan @ Marugan and others reported (2016) 7SCC and Vikas Yadav Vs. State of Uttar Pradesh (2016) 9 SCC 541.

In course of hearing of this matter, this Court requested Mr. Rakanuddin Mahmud, Mr. A.F. Hassan Ariff, and Mr. Abdur Razzaque Khan, learned Senior Counsel to assist the Court as amici curiae who by appearing in the Court made their valuable submissions.

Mr. Rakanuddin Mahmud submits that the meaning of imprisonment for life is that a convict sentenced to imprisonment for life shall enter into the Jail vertically and come out horizontally, that is, he shall suffer imprisonment for the rest of his natural life. Mr. Ariff, learned Senior Counsel, submits that the provision of section 45 of the Penal Code defining life has made meaning of “life” flexible, which is apparent from the second portion of the section, that is, the words “unless the contrary appears from the context.” He submits that it is true that section 57 of the Penal Code is a deeming provision and not substantive statute limiting life sentence to 30 years but it is significant that the legislature has deemed life sentence to mean 30 years duration. He submits that if sections 45 and 57 of the Penal Code are read with sections 35A and 397 of the Code of Criminal Procedure there is a strong case for the argument that life sentence denotes 30 years of imprisonment. Mr. Abdur Razzaque Khan, learned Senior Counsel submits that Supreme Court of India has expressly considered the Constitutional provision and the amended Criminal Procedure Code, 1973, particularly, sections 428, 432, 433and 433A which provisions are absent in our Criminal Procedure Code and in absence of such statutory provisions in our jurisdiction the Indian decisions have no relevance for consideration in awarding sentence of life imprisonment for the rest of natural life without any remission.

The point for consideration and decision, in this case, is whether a sentence of life imprisonment passed against an accused means imprisonment for the remaining biological life of the convict or any period shorter than that.

Life imprisonment is permissible under human rights law and many states around the world use it to punish some of the most serious crimes. Despite their widespread use as a form of punishment in many jurisdictions, life sentences remain controversial. Some scholars deem a life sentence as tantamount to the death penalty because it constitutes a death sentence in itself. It has replaced capital punishment as the most common sentence imposed for heinous crimes worldwide. As a consequence, it has become the leading issue in international criminal justice system. Life imprisonment sentences cover a diverse range of practices, from the most severe form of life imprisonment without parole, in which a person is explicitly sentenced to die in prison, to more indeterminate sentences in which, at the time of sentencing, it is not clear how long the convict will spend in prison. The jurisprudence developed in this area of law raises many questions which remain unanswered and a lot still remains to be known about the punishment of “life imprisonment”. The main reason for imposing indefinite sentences is to protect the community. The aim of general deterrence is to punish individuals who have committed crimes in order to send a message to others who might be contemplating criminal acts that they too will suffer punishment if they carry out their plans. An offender can then be kept behind bars until it is determined that the offender would not pose any danger to society. Generally, serious criminal behaviour is most common during young adulthood and then gradually tapers off. The term life imprisonment is used to cover different realities. Important aspect is, can a life sentence for the remaining period of convicts natural life be justified considering the flaws of our criminal justice system. Recently Katie Reade in an article “life imprisonment: A Practice in desperate need of reform” has described a testimonial from a prisoner serving life without parole with the following words:

“Life in prison is a slow, torturous death. May be it would have been better if they had just given me the electric chair and ended my life instead of a life sentence, letting me rot away in Jail. It serves no purpose. It becomes a burden on everybody.” “It’s like going deep sea diving. Going all the way down into the depths and losing your oxygen.” The concept of life imprisonment is confining a prisoner behind the walls of a jail waiting only for death to set him free. In some jurisdiction, it literally means that a prisoner spends the rest of his natural life in prison without the possibility of parole. In other jurisdictions, prisoners are sentenced to life imprisonment on the understanding that they will be considered for parole after serving a set number of years.

The term “life imprisonment” has not been specifically defined in the Penal Code. Generally, life imprisonment is a sentence, following criminal conviction, which gives the State the power to detain a person in prison for life, that is, until he dies there. In order to understand the correct legal position in regard to the true character and mode of carrying out of sentences of imprisonment for life, the history of life sentence and of relevant statutory provisions governing the nature and mode of its execution, provided for in the Penal Code, Criminal Procedure Code, Prisons Act, Prisoners Act and Cognate Laws, have to be examined along with views of the Apex Courts. It is useful to reproduce some provisions of law for consideration of the point raised, that is, as to whether imprisonment for life means till the end of convict’s life with or without any deduction and remission. Those provisions of law are as follow:-

 Sections of Penal Code

45. “Life”- The word “ life” denotes the life of a human being,

unless the contrary appears from the context.

46. “Death”- The word “death” denotes the death of a human

being, unless the contrary appears from the context.

53.Punishment- The punishments to which offenders are liable under the provisions of this Code are-

Firstly,- Death;

Secondly, - [Imprisonment for life];

Thirdly, - [Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act 1949 (Act No. II of 1950)].

Fourthly, - Imprisonment, which is of two descriptions, namely:- (1)Rigorous, that is, with hard labour; (2) Simple; Fifthly,- Forfeiture of property;

Sixthly, - Fine.

[Explanation.- In the punishment of imprisonment for life, the imprisonment shall be rigorous.]

53A. Construction of reference to transportation- (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 named 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.

54. Commutation of sentence of death.- In every case in which

sentence of death shall have been passed, [the Government] may, without the consent of the offender, commute the punishment for any other punishment provided by this Code.

55. Commutation of sentence of imprisonment for life- In every

case in which sentence of [imprisonment] for life shall have been passed, [the Government]may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding [twenty] years.

55A. Saving for President prerogative- Nothing in section fifty- four or section fifty-five shall derogate from the right of the President to grant pardons, reprieves, respites or remissions of punishment.

57. Fractions of terms of punishment- In calculating fractions of terms of punishment, [imprisonment] for life shall be reckoned as equivalent to [rigorous imprisonment for thirty years.]

64. Sentence of imprisonment for non-payment of fine- In every case of an offence punishable with imprisonment as well as fine, in which the offender is sentenced to a fine, whether with or without imprisonment,

and in every case of an offence punishable with imprisonment or fine, or with fine only, in which the offender is sentenced to a fine,

it shall be competent to the Court which sentences such offender to direct by the sentence that, in default of payment of the fine, the offender shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may have been sentenced or to which he may be liable under a commutation of a sentence.

65.Limit to imprisonment for non-payment of fine, when imprisonment and fine awardable.- The term for which the Court directs the offender to be imprisoned in default of payment of a fine shall not exceed one-fourth of the term of imprisonment which is the maximum fixed for the offence, if the offence is punishable with imprisonment as well as fine.

66. Description of imprisonment for non-payment of fine- The imprisonment which the Court imposes in default of payment of a fine may be of any description to which the offender might have been sentenced for the offence.

Sections 35A, 397, 401,402 and 402A of the Code of Criminal Procedure as follows:-

35A. (1) Except in the case of an offence punishable only with death, when any court finds an accused guilty of an offence and, upon conviction, sentences such accused to any term of imprisonment, simple or rigorous, it shall deduct from the sentence of imprisonment, the total period the accused may have been in custody in the meantime, in connection with that offence.

(2) If the total period of custody prior to conviction referred to in sub-section (1) is longer than the period of imprisonment to which the accused is sentenced, the accused shall be deemed to have served out the sentence of imprisonment and shall be released at once, if in custody, unless required to be detained in connection with any other offence; and if the accused is also sentenced to pay any fine in addition to such sentence, the fine shall stand remitted.

397. When a person already undergoing a sentence of imprisonment, or transportation, is sentenced to imprisonment, or transportation, such imprisonment, or transportation shall commence at the expiration of the imprisonment, or transportation to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence;

Provided that, if he is undergoing a sentence of imprisonment, and the sentence on such subsequent conviction is one of transportation, the Court may, in its discretion, direct that the latter sentence shall commence immediately, or at the expiration of the imprisonment to which he has been previously sentenced.

Provided, further, that where a person who has been sentenced to imprisonment by an order under section 123 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.

401.(1) When any person has been sentenced to punishment for an offence, the Government may at any time without conditions or upon any conditions which the person sentenced excepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2)  Whenever an application is made to the Government for the

suspension or remission of a sentence, the Government, may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3)  If any condition on which a sentence has been suspended or

remitted is, in the opinion of the Government not fulfilled, the Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer without warrant and remanded to undergo the unexpired portion of the sentence.

(4)  The condition on which a sentence is suspended or remitted

under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(4A) The provision of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or impose any liability upon him or his property.

(5)   Nothing herein contained shall be deemed to interfere with

the right of the President to grant pardons, reprieves, respites or remissions of punishment.

(5A) Where a conditional pardon is granted by the President any condition thereby imposed, of whatever nature, shall be deemed to have been imposed by a sentence of a competent Court under this Code and shall be enforceable accordingly.

(6)  The Government may, by general rules or special orders, give

directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with.

402.(1) The Government may, without the consent of the person sentenced, commute any one of the following sentences for any other mentioned after it:-

death, transportation, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for a like term, fine.

(2) Nothing in this section shall affect the provisions of section

54 or section 55 of the Penal Code.

402A. The powers conferred by sections 401 and 402 upon the Government may, in the case of sentences of death, also be exercised by the President.

The punishment of imprisonment for life as regards its nature and mode of execution and consequently its workability or executability, has been a subject matter of a wide-ranging debate in the higher echelons of the polity. To substantiate his submission, learned Attorney General first cited the case of Kishori Lal Vs. Emperor reported in AIR 1945 (Privy Council) 64. In that case it was observed, “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 20 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 not more than 20 years or that the convict is necessarily entitled to remission.”

 He next relied on the case of Gopal Vinayek Godse Vs. State of Maharastra reported in (1961) 3 SCR 440 which was called as mother judgment of the Supreme Court of India in this regard. In that case it was observed, “Section 57 of the Indian Penal Code has no real bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does not say that transportation for life shall be deemed to be transportation for twenty years for all purposes; nor does the amended section which substitutes the words imprisonment for life " for “transportation for life” enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life.”

He next cited the case of State of Madhya Pradesh Vs. Ratan Singh and others reported in (1976) 3 SCC 470. In which it was observed, “From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge:

(1)    that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under section 401 of the Code of Criminal Procedure;  

(2)    that the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner; (3) that the appropriate Government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been

transferred at his instance under the Transfer of Prisoners Act; and    (4) that where the transferee State feels that the accused has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was connected and sentenced and even if this request is rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction.”

In the case of Maru Ram Vs. Union of India reported in (1981) 1 SCC 107 Mr. V.R. Krishna Iyer, J. observed, “A Constitution Bench, speaking through Subba Rao, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remissions. Release would follow only upon an order under Section 401 of the Criminal Procedure Code, 1898 (corresponding to Section 432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under Arts. 72 or 161 of the Constitution. Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of "imprisonment for the whole of the remaining period of the convicted person's natural life". It was further observed, “A possible confusion creeps into this discussion by equating life imprisonment with 20 years imprisonment. Reliance is placed for this purpose on section 55 IPC and on definitions in various Remission Schemes. All that we need say, as clearly pointed out in Godse, is that these equivalents are meant for the limited objective of computation to help the State exercise its wide powers of total remissions. Even if the remissions earned have totalled upto 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoners cannot claim his liberty. The reason is that life sentence is nothing less than life-long imprisonment. Moreover, the penalty then and now is the same-life term. And remission vests no right to release when the sentence is life imprisonment. No greater punishment is inflicted by Section 433A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14 years jail life once we realise the truism that a life sentence is a sentence for a whole life.”

Krishna Ayer, J. finally concluded, “ We repulse all the thrusts on the vires of Section 433A.. Maybe, penologically the prolonged terms prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe not construct, to decode, not to make a code.” “ We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making an order en masse or individually, in that behalf.” “We hold that Section 432 and s. 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.” “ We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.” “We declare that Section 433A, in both its limbs (i.e. 'both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 (directly or retroactively, as explained in the judgment) when Section 433A came into force. All 'lifers' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.” “ In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not