Summary
ফৌজদারী রিভিউ পিটিশন নং ৮২/২০১৭ আতাউর মৃধা ওরফে আতাউর বনাম রাষ্ট্র
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 Petitioner.
=Versus=
The State Respondent.
For the Petitioner : Mr. Khandker Mahbub Hossain, Senior
Advocate, instructed by Mr. Syed Mahbubar
Rahman, Advocate-on-Record.
For the Respondent : 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.
As Amici Curiae to assist the Court : 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 (S ankar 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). 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.
……….
………..
……….
In Bangladesh, life sentence has become a complex patchwork of
judicial and executive orders. A young person sentenced to
imprisonment for life could theoretically, serve many more years in
custody than an older person. Conversely, an older person has a
significantly greater chance of serving the balance of his life in jail.
Many prisoners serving life sentences will likely die in prison. Society
should find a human way of handling life sentence. If complete bar to
get release of all life convicts is provided it would fail to satisfy the
principle of truth in sentencing. The imprisonment until death has some
negative effects within the prison system such as ageing of the prison
population and the creation “super-inmate”. Generally, most of the
prisoners come from poor and vulnerable communities. Critics suggest
that to impose whole life tariffs denies the prisoner’s human rights
because it offers no possibility of release and thus no hope for the
future. International human rights law allows the imposition of life
sentences “only in the most serious crimes” and prohibits the use of life
imprisonment without parole. Life imprisonment, without the
possibility of release, leads to indefinite detention is prison, and is
known to cause physical, emotional and psychological distress.
Prisoners could suffer from ill-health, social isolation, loss of personal responsibility, identity crises, and may even be driven to suicide.
The prison is a terrible place to cope with a serious ailment. In the dark and
dank dungeons of our prisons, life is a killer, mentally and physically.
Our prisons are so chock-a-block with inmates that there are not
enough spaces for them to sleep. The enormous increase in prison
populations has led to severe prison overcrowding. The incarceration
rates continued to climb throughout the last few decades. In some jail,
prisoners have reported sleeping in shifts because there are not enough
room in cells for them all to lie down at the same time. Overcrowding
increases the stress put on the inmates. Adam Gopnic in “The caging of
America why do we lock up so many people” has said, “—– no one
who has been inside a prison, if only for a day, can ever forget the
feeling. Time stops. A note of attenuated panic, of watchful paranoia,
anxiety and boredom and fear mixed into a kind of developing fog,
covering the guards as well as the guarded—–.” The International
Covenant on Economic, Social and Cultural Rights (ICESR) states that
prisoners have right to the highest attainable standard of physical and
mental health. In India the Krishna Iyer Committee recommended
induction of more women in the police force in view of their special
role in tackling women and child offenders.
It is undoubtedly true that society has a right to lead a peaceful
and fearless life, without-roaming criminals creating havoc in the lives
of ordinary peace-loving people. Equally strong is the foundation of a
reformative theory which propounds that a civilized society cannot be
achieved only through punitive attitudes and vindictiveness. The object and purpose of determining quantum of sentence has to be ‘socio-centric’ following the relevant law. A civil society has a ‘fundamental’ and ‘human’ right to live free from any kind of psycho fear, threat,
danger or insecurity at the hands of anti-social elements. The society
legitimately expects the Courts to apply doctrine of proportionality and
impose suitable and deterrent punishment that commensurates with the
gravity of offence. The measure of punishment in a given case must
depend upon the atrocity of the crime, the conduct of the criminal and
the defenceless and unprotected state of the victim. Imposition of
appropriate punishment is the manner in which the Courts respond to
the society’s cry for justice against criminals. Undue sympathy to
impose inadequate punishment would do more harm to the justice
system that undermines the public confidence in the efficacy of the law.
Simultaneously it is to be borne in mind of all that criminal justice
would look hollow if justice is not done to the victim of the occurrence.
A victim of occurrence cannot be “a forgotten man” in the criminal
justice system. It is he who has suffered the most. His family is ruined
particularly in case of murder. An honour which is lost or life which is
suffered out cannot be recompensed but then compensation will at least
provide some solace. Bangladesh regards itself as progressive in many
aspects of criminal justice system. “Allah commands justice,
righteousness, and spending on ones relatives, and prohibits
licentiousness, wrongdoing, and injustice—-” (The Holly Qur’an
16:90) “—- Take not life, which Allah has made sacred, except by way
of justice and law. Thus does He command you, so that you may learned wisdom, ”—- (The Holly Qur’an 6:151). Life and death are acts of the Divine and the divine’s authority has been delegated to the human Courts of law to be only exercised with utmost caution.
If we read Sections 45, 53, 55 and 57 of the Penal Code with
Sections 35A and 397 of the Code of Criminal Procedure together and
consider the interpretations discussions above it may be observed that
life imprisonment may be deemed equivalent to imprisonment for 30
years. The Rules framed under the Prisons Act enable a prisoner to earn
remissions- ordinary, special or statutory and the said remissions will
be given credit towards his term of imprisonment.
However, if the Court, considering the facts and circumstances
of the case and gravity of the offence, seriousness of the crime and
general effect upon public and tranquillity, is of the view that the
convict should suffer imprisonment for life till his natural death, the
convict shall not be entitled to get the benefit of section 35A of the
Code of Criminal Procedure. In the most serious cases, a whole life
order can be imposed, meaning life does mean life in those cases. In
those cases leniency to the offenders would amount to injustice to the
society. In those cases, the prisoner will not be eligible for release at
any time. The circumstances which are required to be considered for
taking such decision are: (1)surroundings of the crimes itself; (2)
background of the accused; (3) conduct of the accused; (4) his future
dangerousness; (5) motive; (6) manner and (7)magnitude of crime.
This seems to be a common penal strategy to cope with dangerous
offenders in criminal justice system.
Bentham, Auston Hart, Kelsen and some other jurists said that
law making is the task of legislature, not of judiciary. In England, this
principle is strictly followed. In Magor and St Mellons Rural District
Council V. Newport Corporations [(1951) 2 All E Q 839] the House of
Lords overruled the decision of Lord Denning in the Court of Appeals,
holding it to be “a naked usurpation of legislative powers”. There is
separation of powers in the Constitution between three organs of the
state, and one organ should not ordinarily encroach into the domain of
another, otherwise, there will be chaos. Of all the organ of the state, it
is only judiciary which can define the limits of all three. This great
power must therefore be exercised by the judiciary, with the utmost
humility and self restraint. Judicial activism is not an unguided missile,
and must not become judicial adventurism. Courts decision should have
a jurisprudential base. A judge makes a decision in accordance with
law and customs of the land. He can not introduce new law but make
constructive interpretation and work out the implications of legal
considerations. In the exercise of the judicial power, the Court should
within the legally imposed restrictions act by adopting the best
interpretations. Only the legislature is legally empowered to enact law
fixing a definite period of life imprisonment resolving dichotomy and
put an end to the ambiguity.
However, with the development and fast changing society, the
law cannot remain static and the law has to develop its own principles.
In view of discussions made above, it can be said that imprisonment for
life may be deemed equivalent to imprisonment for 30 years.
In order to avoid any controversy it is relevant here to mention
that punishment awarded by the International Crimes Tribunal under
the International Crimes (Tribunals) Act,1973 (Act XIX of 1973) is to
be regulated/controlled/guided following the provisions provided under
article 47(3), 47A (1) and (2) of the Constitution and as per provisions
of International Crimes (Tribunals) Act, 1973 and Rules framed
thereunder. A convict under the said Act is not entitled to get benefit of
Section 35A of the Code of Criminal Procedure.
In view of the facts and circumstances, the discussion made
above the review petition is disposed of with the following
observations and directions:
1. Imprisonment for life prima-facie means imprisonment for
the whole of the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment
for 30 years if sections 45 and 53 are read along with sections
55 and 57 of the Penal Code and section 35A of the Code of
Criminal Procedure.
3. However, in the case of sentence awarded to the convict for
the imprisonment for life till his natural death by the Court,
Tribunal or the International Crimes Tribunal under the
International Crimes (Tribunal) Act, 1973 (Act XIX of 1973),
the convict will not be entitled to get the benefit of section
35A of the Code of Criminal Procedure.
Considering the facts and circumstances, the sentence awarded to
the review petitioner is modified to the extent that he is sentenced to suffer imprisonment for life and to pay fine of taka 5000/-, in default, to
suffer rigorous imprisonment for 2(two) months more.
We express our gratitude to the learned amici curiae for their
gracious assistance.
( It is to be mentioned here that during the course of the hearing
of this matter, Mr. Mahbubey Alam, the then Attorney General died on
27.09.2020 of COVID-19. He gave much labour in this case and
assisted the Court. Thereafter, the matter was reheard upon
reconstituting the bench with newly elevated Judge Obaidul Hasan, J.
Then Mr. A.M. Aminuddin, newly appointed Attorney General
appeared for the State who adopted the submissions made by late
legend Mahbubey Alam.)
Courts Order
The review petition is disposed of with the following observations and directions by majority decision:
1. Imprisonment for life prima-facie means imprisonment for
the whole of the remaining period of convicts natural life.
2. Imprisonment for life be deemed equivalent to imprisonment
for 30 years if sections 45 and 53 are read along with sections
55 and 57 of the Penal Code and section 35A of the Code of
Criminal Procedure.
3. However, in the case of sentence awarded to the convict for
the imprisonment for life till his natural death by the Court,
Tribunal or the International Crimes Tribunal under the
International Crimes (Tribunal) Act, 1973 (Act XIX of 1973),
the convict will not be entitled to get the benefit of section
35A of the Code of Criminal Procedure.
Considering the facts and circumstances, the sentence awarded to
the review petitioner is modified to the extent that he is sentenced to
suffer imprisonment for life and to pay fine of taka 5000/-, in default, to
suffer rigorous imprisonment for 2(two) months more.
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