LexASHOK KUMAR ALIAS GOLU versus UNION OF INDIA AND ORS.
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A ASHOK KUMAR ALIAS GOLU V. UNION OF INDIA AND ORS. JULY 10, 1991 B [A.M. AHMADI, P.B. SAWANT AND S.C. AGRAWAL, JJ.] c D Constitution of India, 1950: Articles 14 and 21, 245 & 246-- lnsertion of S. 433A into the Code of Criminal Procedure, 1973- -Validity of-Colourable legislation or legislative fraud-Meaning of- Doctrine of pith and substance-Applicability of. Articles 72, 161: Clemancy-Powers of-Sections 54 and 55 /PC-Section 433A Cr. P.C. and provisions of Remission Rules- Whether subject to the overriding powers of,clemency. Indian Penal Code, 1860; Sections 45, 54, 55 and 57-Fixing terms of imprisonment-'Life imprisonmenf-Whether imprisonment for full span of life. Sections 54 and 55: Whether subject to overriding powers of Arti- cles 72/ 161 of the Constitution of India. E , Criminal Procedure Code, 1973: Section 433A-Insertion a/- Whether a colourable legislation-Constitutional validity of-IPC (Amendment) Bill not passed by Lok Sabha while passing Cr. P.C. (Amendment) Bill-Government claiming that both the bills were interlinked-Effect on the Amendment Bill passed, inserting S. 433A- Prisoners covered under the Section-Prisoners who were sentenced to p death by Courts, but whose sentence commuted to life imprisonment by executive demency-Whether forms a distinct and separate class. G Sections 432, 433 and 433A: Release of prisoners under Remis- sion Rules-Remittance. of sentencf"-Exercise of power under sections 432 and 433-Whether restricted by S. 433A. · Rajasthan Prisons (Shortening of Sentence§) Rules, 1950: Pre- mature release of Prisoners-Whether subject to overriding powers of Sections 432, 433 and 433A Cr. P. C. and Articles 72/ 161 of the Con- stitution of India, 1950. H Statutory Construction: Extern1,1I aid-Language of a provision 858 ' ASHOK KUMAR v. U.0.1. 859 plain and clear-Reading down the same with the aid of a Bill which has not become an enactment-Whether could be resorted to. A The petitioner was. convicted for murder and sentenced to life imprisonment, which was confirmed by the High Court. Later, he f'ded a Writ Petition before the High Court for premature release on the plea that he was entitled to be considered for release under the Rajasthan B Prisons (Shortening of Sentences) Rules, 1958 notwithstanding the insertion of Section 433A in the Code of Criminal Procedure, 1973 with efl'ect from 18.12.1978, just two days before his conviction. It was con- tended that Section 433A Cr. P.C. which places an embargo of 14years imprisonment before premature release could not curtail the constitu- tional power vested in the Governor by virtue of Article 161 of the Constitution. The High Court, dismissed the Writ Petition on the C ground that the petitioner's representations to the Governor and State Home Minister were pending consideration. However, the High Court directed that the two representations of the petitioner should be disposed· of within one month. Unable to secure his release from the High Court as also from the State Government, the petitioner f'ded the present Writ Petition before this Court, contending that the insertion of Section 433A in the Code of Criminal Procedure was invalid; that in the absence of guidelines under Arts. 72/liil of the Constitution, Section 433A Cr. P.C. could not apply D to life convicts; that the Rajasthan Prisons (Shortening of Sentences) E Rules, 1958 would pervail over Section 433A Cr. P.C., and that the constitution31 guarantee under Articles 14 and 21 was violated. Dismissing the Writ Petition, this Court HELD: 1.1. It is only when a legislature which has no power to F legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation. If in pith and substance the legisla- tion does not belong to the subject falling within the limits of its power but is outside it, the mere form of the legislation will not be determinate of the legislative competence. [871C; 872C] G 1.2. It is not a case of legislative incompetence to enact section 433A. No such contention was raised. Besides the question of vires of section 433A of the Code has been determined by the Constitution Bench of this Court in Maru Ram's case. This Court repelled all the thrusts aimed at challenging the constitutional validity of section H 433A. [87IA] A B 860 SUPREME COURT REPORTS [ 1991] 2
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