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Attorney(S)
  • C.B Bhargava, Deputy Government Advocate.
Judges
  • Kailash Wanchoo
  • Mr. K.L. Bapna
  • Mr. Kumar Krishna Sharma
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Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • C.B Bhargava, Deputy Government Advocate.
Judges
  • Kailash Wanchoo
  • Mr. K.L. Bapna
  • Mr. Kumar Krishna Sharma
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Smart Summary

Full Bench Opinion — Wanchoo, C.J.: Summary

Factual and Procedural Background

The Full Bench was asked to answer a specific question about the power of a High Court under section 491 of the Code of Criminal Procedure to examine the legality of a sentence that had been passed and finally confirmed by the highest tribunal of a former integrating State prior to the coming into force of the Constitution of India, and whether, if such a sentence were unlawful, the High Court should order release or substitute another sentence.

The factual matrix arose from the conviction of one Chhotia. He was convicted by the Court of Sessions Judge, Jaipur, under section 290 read with section 27 of the Jaipur Penal Code and sentenced to life imprisonment. The Chief Court of Jaipur confirmed the conviction and sentence on 24 December 1941. Following the procedure then in force, the Darbar confirmed the sentence on 12 September 1942, specifying that the prisoner would undergo rigorous imprisonment for 25 years and that remissions would not exceed five years.

Chhotia had been undergoing imprisonment since 19 September 1941 and applied under section 491 Cr.P.C. for release on the ground of illegal detention. His contention was that life imprisonment was equivalent to 20 years' rigorous imprisonment; after accounting for time served and remissions, he claimed entitlement to release.

A Division Bench of this Court encountered similar cases previously: in instances where judgments did not expressly equate life imprisonment to 25 years the practice had been to treat life as 20 years and direct release (Criminal Misc. Application No. 130 of 1951, Mst. Bhuri v. State, decided 12 September 1951). Where 25 years was expressly stated as equivalent to life, the Court had not ordered release on the ground that it could not rehear final decisions of the highest court of the former State (Criminal Misc. Application No. 132 of 1951, Surajia v. State, decided 24 September 1951). Because Surajia's case raised doubt, the present Full Bench reference was made.

Legal Issues Presented

  1. Whether under section 491 Cr. P.C. the High Court can examine the legality of a sentence passed by the highest tribunal of one of the integrating States even when that tribunal's judgment had become final long before the Constitution of India came into force.
  2. If the sentence is found not to be in accordance with law, whether the High Court should order the release of the convict or whether the High Court should substitute another sentence which should and could have been lawfully passed at the time the sentence was imposed.

Arguments of the Parties

Applicant's Arguments (Chhotia)

  • Chhotia contended that his imprisonment commenced on 19 September 1941 and that, as life imprisonment was equivalent to 20 years' rigorous imprisonment, after accounting for time served and remissions he had effectively completed the 20 years and was entitled to release under section 491 Cr.P.C.

Other Legal Points Raised Before the Bench

  • Argument was raised (not finally decided by this Full Bench) whether life imprisonment under section 290 of the Jaipur Penal Code is necessarily equivalent to 20 years' rigorous imprisonment, and whether section 49 of the Jaipur Penal Code (equivalent to section 57 of the Indian Penal Code) compels that conclusion. Reference was made to remarks in Pandit Kishori Lal v. King Emperor (Privy Council) for consideration at the Division Bench level.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Mst. Bhuri v. State (Criminal Misc. Application No. 130 of 1951; decided 12 Sept. 1951) Practice where judgments did not expressly equate life to 25 years: treat life as 20 years and direct release. Used as an example of prior decisions in which prisoners were released where 25 years was not expressly stated as equivalent to life imprisonment.
Surajia v. State (Criminal Misc. Application No. 132 of 1951; decided 24 Sept. 1951) Where 25 years was expressly mentioned as the equivalent of life imprisonment, the Court declined release on grounds of finality of the highest State court's decision. Identified as a decision creating doubt and difficulty; its correctness was questioned, prompting the Full Bench reference.
Pandit Kishori Lal v. King Emperor (LXXII (1944-45) Indian Appeals, 1) Referenced on the question whether life imprisonment must be equated to 20 years and the role of provisions equivalent to s.49 Jaipur Penal Code / s.57 IPC. Not decided by the Full Bench; the Court left the point to the Division Bench to consider later in light of remarks in Kishori Lal's case.
Janardhan Reddi v. The State of Hyderabad (A.I.R. 1951 S.C. 217) General principle on finality of criminal orders and the limited scope for habeas corpus: where detention is under a sentence on indictment, that fact is generally a sufficient answer to a habeas corpus application; the Court should not reopen final criminal orders except in limited circumstances. The Court treated this as the starting principle but distinguished it: Janardhan Reddy did not consider cases where the sentence is on its face excessive (more than law allows or more than the sentencing court could impose); the Full Bench held such cases are exceptions permitting High Court inquiry under s.491 Cr.P.C.
In re Authers (1889) 22 Q.B.D. 345 Authority discussed regarding whether jurisdiction can be investigated even after conviction and appeal; noted that the judges in that case "went too far" in permitting extensive inquiry. Cited to show limits on reopening convictions on jurisdictional grounds; used to support restraint in treating appellate orders as nullities—but the Full Bench carved out the separate exception for manifestly excessive sentences.
Corpus Juris, Vol. 29, p. 58–59 (heading "Excessive Sentence") Secondary-source summary of U.S. decisions: the prevailing view that an excessive sentence is valid to the extent authorized by law and void for the excess. Used to illustrate the principle (in U.S. jurisprudence) that excess portions of sentences may be treated as void while the lawful portion remains valid, supporting the approach adopted by the Full Bench.
Hans Nielsen (U.S. Supreme Court; cited at length) Observation that the writ of habeas corpus generally lies when a sentence exceeds the jurisdiction of the court or there is no authority to hold the defendant under it. Relied on to show that where a sentence exceeds the sentencing court's authority the detention may be challenged; the Full Bench noted differences between U.S. and Indian authorities and limited application to the class of excessive-sentence cases.

Court's Reasoning and Analysis

The Full Bench proceeded from the established principle, as stated in Janardhan Reddi v. The State of Hyderabad (A.I.R. 1951 S.C. 217), that High Courts should not ordinarily reopen final criminal orders in habeas corpus proceedings: where a person is detained pursuant to a sentence on indictment, that fact is generally a sufficient answer to a habeas corpus application. The Court acknowledged that Janardhan Reddy had not considered the specific type of case now before it.

The Court analyzed whether there were limited exceptions to the rule of finality. It identified two distinct situations in which a sentence is "on its face" excessive and thus open to scrutiny without undertaking an elaborate inquiry into the jurisdiction of the sentencing tribunal:

  • Where the sentence imposed is greater than the sentence provided under the law that was in force when the sentence was passed (i.e., more than the statutory maximum for the offence), and
  • Where the sentence imposed is greater than what the court of the grade which purported to pass the sentence could lawfully pass at that time (i.e., more than the sentencing power of that court).

The Court reasoned that in these narrow circumstances there is no need to challenge the jurisdiction of the tribunal that passed the final order: the illegality is apparent on the face of the sentence. Drawing on comparative authority (Corpus Juris and Hans Nielsen) the Court observed that the excess portion of an otherwise authorized sentence may be void while the authorized portion remains valid. The Full Bench therefore concluded that Janardhan Reddy's general rule of non-interference did not preclude High Courts from exercising powers under section 491 Cr.P.C. in this limited class of excessive-sentence cases.

Concerning the appropriate remedy, the Court held that the High Court does not have power to substitute a different sentence in place of a sentence that has become final. Instead, two remedial outcomes are permissible:

  • If the lawful portion of the sentence has already been fully served and only the illegal (excess) portion remains, the High Court should order the release of the prisoner.
  • If the lawful portion of the sentence has not yet been fully served (i.e., some lawful period of imprisonment still remains), the High Court should dismiss the habeas corpus application and leave the prisoner free to apply again when the lawful portion has been fully served.

The Bench also noted that the specific separate issue of whether life imprisonment under section 290 of the Jaipur Penal Code is necessarily equivalent to 20 years (and the relevance of section 49 of that Code / section 57 IPC) was not referred to this Full Bench for decision; that point was left to the Division Bench to consider in the light of remarks in Pandit Kishori Lal.

Holding and Implications

Holding: The Full Bench answered the reference as follows.

1. Only in the limited circumstances where a sentence is, on its face, excessive — either (a) because it is more than the law prescribed for the offence at the time it was passed, or (b) because it exceeds the power of the court of the grade which purported to pass it — may the High Court examine the legality of a sentence under section 491 Cr.P.C. even after the sentence has become final.

2. Where the High Court finds that the sentence is not in accordance with law for the reasons above, it is not open to the High Court to substitute another sentence. The High Court has two practical options:

  • Order release if only the illegal (excess) portion remains to be served and the lawful portion has been fully served.
  • Dismiss the application if part of the lawful sentence still remains to be served, leaving the prisoner to apply again when the lawful portion has been completed.

Implications for the parties and future cases: The effect on the immediate parties is procedural — the case was to be remitted to the Division Bench for further consideration in accordance with these principles. The Full Bench delineated a narrow exception to the general rule of finality in habeas corpus applications, specifying the limited circumstances in which the High Court may inquire into sentence legality and the remedies available; the Court expressly refrained from deciding ancillary questions (such as the precise equivalence of life imprisonment to a fixed term) which were left to the Division Bench.

Order: "Let the case be now laid before the Division Bench." — as stated in the opinion.

Show full summary ...

    Chhotia v. The State

    Wanchoo, C.J:— The following question has been referred to this Full Bench for an answer:—

    “Whether under sec. 491 Cr. P.C this Court can examine the legality of a sentence passed by the highest tribunal of one of the integrating States even when such judgment by which such sentence was awarded had become final long before the coming into force of the Constitution of India, and whether if the sentence if found to be not in accordance with law this Court should order the release of such a convict or whether this court should substitute other sentence which should and could have been passed in accordance with law at that time.”

    2. The facts, which gave rise to this reference are these: One Chhotia was convicted by the Court of Sessions Judge, Jaipur, under sec. 290 read with sec. 27 of the Jaipur Penal Code, and sentenced to life imprisonment. The conviction and sentence were confirmed by the Chief Court of Jaipur on the 24th of December, 1941. According to the procedure then in force, the matter was further referred to the Darbar for confirmation, and the Darbar confirmed the sentence on the 12th of September, 1942. In the order confirming the sentence it was specified that the prisoner would undergo rigorous imprisonment for 25 years, and the remissions would not exceed five years.

    3. Chhotia has been undergoing imprisonment since the 19th of September, 1941. He applied under sec. 491 of the Code of Criminal Procedure for release on the ground that he was being illegally detained in jail at Jaipur. His contention was that his imprisonment began on the 19th September, 1941, and as life imprisonment was equal to 20 years' rigorous imprisonment, and as he had served a certain period and had earned remissions for the balance, making the total of 20 years, he was entitled to release. When the matter came up before a Division Bench of this Court, a question arose whether it was possible to examine the legality of the order by which the sentence of life imprisonment was mentioned to be equivalent to 25 years' rigorous imprisonment. It appears that similar cases had come up before this Court, and the view taken was that where the period of 25 years was not mentioned as the equivalent of life imprisonment, that period should be taken as 20 years, and in such cases the prisoner was directed to be released, vide Criminal Misc. Application No. 130 of 1951 (Mst. Bhuri v. State), decided on 12th September, 1951. In those cases, where 25 years was mentioned in the judgment as the equivalent of life imprisonment, the prisoner was not released on the ground that this Court could not sit in appeal over the decisions of the highest court of the former State of Jaipur, which had become final, vide Criminal Misc. Application No. 132 of 1951 Surajia v. State, decided on 24th September, 1951. When this case came up, it was felt that the decision in Surajia's case was not free from doubt and difficulty, and consequently this reference has been made to a Full Bench.

    4. Before we answer the question put to us, we may state that some argument was raised as to whether life imprisonment mentioned in sec. 290 of the Jaipur Penal Code was necessarily equivalent to twenty years' rigorous imprisonment, and whether sec. 49 of the Jaipur Penal Code, which is equivalent to sec. 57 of the Indian Penal Code, would necessarily compel the court to come to that conclusion. Reference in this connection was made to the remarks of their Lordships of the Privy Council in Pandit Kishori Lal v. King Emperor LXXII (1944-45) Indian Appeals, 1. That point, however, has not been referred to this Full Bench for decision, and it will be for the Division Bench to consider the question when the case goes back to it, in the light of the remarks in Kishori Lal's case.

    5. The general principle as to the finality of orders of criminal courts and their not being liable to be reopened in proceedings for a writ of habeas corpus has been laid down in Janardhan Reddi v. The State of Hyderabad A.I.R 1951 S.C 217. In that case the jurisdiction of a certain tribunal in the State of Hyderabad was challenged before the Supreme Court under Art. 32 of the Constitution of India by means of a writ of habeas corpus, and it was urged that as the tribunal had no jurisdiction, the prisoners, who were in jail, should be ordered to be released. The question of jurisdiction had been considered by the tribunal as well as by the High Court of the State of Hyderabad, and decided against the prisoners. The decision of the High Court of Hyderabad had become final before the Constitution of India came into force. The prisoners, however, challenged the correctness of that decision after the coming into force of the Constitution of India, in view of the powers given to the Supreme Court by Art. 32 of the Constitution. The principle was stated in the following words at page 225:—

    “The trend of decisions thus seems to be in favour of the view that if it should appear on the face of the return that a person is in detention in execution of a sentence on indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus.”

    6. Their Lordships went on to say that:—

    “Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in In re, Authers, (1889) 22 Q.B.D 345, it appears to us that the learned Judges who decided that case went too far in holding that notwithstanding the fact that the conviction and sentence had been upheld on appeal by a Court of competent jurisdiction the mere fact that the trial Court had acted without jurisdiction to justify interference treating the appellate order also as a nullity.”

    7. It is thus clear that it is not open to the High Court on a writ of habeas corpus, whether under Art. 226 of the Constitution of India or sec. 491 of the Code of Criminal Procedure, to order release of a prisoner after making an elaborate enquiry as to the jurisdiction or powers of the court which passed the sentence. Where the sentence is, on the face of it, valid, the High Court will not make enquiry as to the jurisdiction of the tribunal passing the sentence. But where the sentence is, on the face of it, excessive in the sense that it is more than the sentence provided under the law which was in force when the sentence was passed or is more than what the Court of the grade which passed the sentence could pass, the matter, in our opinion, is different. In such a case there is no necessity of questioning the jurisdiction of the tribunal deciding the matter, and of an elaborate enquiry into it, and it and the High Court should exercise its powers under sec. 491 of the Code of Criminal Procedure, and determine whether the sentence is illegal and release the prisoner, if it comes to the conclusion that the sentence was illegal as aforesaid. Janardhan Reddy's case AIR 1951 S.C 217, therefore, in our opinion, is no bar to the High Court exercising its power under sec. 491 of the Code of Criminal Procedure in the very limited class of cases where the sentence is excessive, i.e, illegal in the sense we have already explained, for this particular point never arose for consideration in that case.

    8. This matter seems to have come up before the State courts in the United States of America, and the decisions are summarised in Corpus Juris, Volume 29, page 58, paragraph 50, under the heading “Excessive Sentence”. The view, which has generally prevailed in the United States, is given in these words at page 59:—

    “But the present weight of authority supports the view that an excessive sentence is valid as to so much of it as is authorized by law and void only as to the excess.”

    9. The matter came up before the United States Supreme Court in the matter of Hans Nielsen (2), and the following observations at page 121 lay down the law so far as the United States is concerned:—

    “With regard to the power of discharging on habeas corpus, it is generally ture that, after conviction and sentence, the writ only lies when the sentence exceeds the jurisdiction of the court, or there is no authority to hold the defendant under it.”

    10. So far as the last part of the observation is concerned, it appears that those words were used in connection with the jurisdiction of the court on whose warrant the prisoner was held. The Supreme Court of the United States went into the question whether the court, at whose warrant the prisoner was held, had jurisdiction to deal with the case, and came to the conclusion that it could order the release on the ground that there was no jurisdiction in the court under whose warrant the prisoner was held. This view, however, has not been accepted in Janardhan Reddy's case AIR 1951 S.C 217 where it has been held that question of jurisdiction cannot be gone into after the order had become final. But Janardhan Reddy's case AIR 1951 S.C 217 did not specifically consider the other part, namely, where the sentence is, on the face of it, excessive either because it is more than what the law prescribed for the particular offence, or it is more than which the court of the grade which purported to pass the sentence could Page: 215pass under the law as it was in force at the time the sentence was passed. These two types of cases appear to us to be clearly exceptions to the rule laid down in Janardhan Reddy's case (1), and where the sentence is illegal on these grounds, it would, in our opinion, be open to the High Court, when dealing with an application for a writ of habeas corpus, whether under Art. 226 of the constitution or sec. 491 of the Code of Criminal Procedure, to examine the legality of the sentence.

    11. Our answer, therefore, to the first part of the question is that only in the circumstances mentioned above it would be open to the High Court to examine the legality of the sentence passed by any court even after it had become final. The next part of the question deals with what the High Court should do after it has found that the sentence passed is not in accordance with law as explained above. We are asked whether in such a case the High Court should release the convict or should substitute other sentence which should and could have been passed in accordance with law at that time. We may say at once that it is not open to the High Court to substitute any sentence in place of the sentence passed by the court, which has already become final. The High Court may, however, do one of two things. If the legal portion of the sentence has been served, and only the illegal portion remains to be served, the High Court should order the release of the convict; but if the legal portion of the sentence has not been fully served and some part of it still remains to be served, the application must be dismissed leaving it to the prisoner to come again when the legal portion has been completely served. This is our answer to the second part of the question.

    12. Let the case be now laid before the Division Bench.

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    Comments

    Chhotia v. The State
    (Jul 29, 1953)