Ataur Mridha vs State (2021) 73 DLR (AD) 298

Fact of the Case:

The Druto Bichar Tribunal in Dhaka convicted Ataur Mridha and two others under Sections 302/34 of the Penal Code and sentenced them to death penalty for killing Jamal on 16.12.2001. The accused shot the victim, causing his death on the spot. Reference was made to the High Court Division for confirmation of the sentence of death. Petitioner filed a criminal and jail appeal against the judgment. The High Court Division accepted the death reference and dismissed the appeal, maintaining the conviction and confirming the death sentence for the petitioner and the other two absconding condemned convicts. The petitioner filed Criminal Petition for Leave to Appeal No.116 of 2008, while co-convict Md. Anwar Hossain filed Criminal Petition No.136 of 2008. Both appeals were granted, and the cases were registered as Criminal Appeal Nos.15 and 16 of 2010. The Division dismissed both appeals and maintained the conviction, but commuted the appellants’ death sentence to “imprisonment for the rest of the life.”

 

The appellant filed an instant petition to review the Division’s judgment and order, arguing that it committed error apparent on the face of the record in failing to reconcile with a previous judgment from a co-equal Bench on 13.04.2013. Further argued that at the time of hearing the conviction of the accused were not under challenge. The only prayer was for commutation of death sentences to life imprisonment. The impugned judgment commuted the death sentence, but the life imprisonment was for the rest of the appellants’ life. This issue was under challenge in this review.

 

Issues of the Case:

1) 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?

2) Whether a sentence of life imprisonment passed against an accused means imprisonment for the remaining biological life of the convict or any period shorter than that?

 

Decisions:

The review petition is disposed of with the majority decision that imprisonment for life prima-facie refers to imprisonment for the remaining period of a convict’s natural life. 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. However, if a sentence is awarded for life imprisonment until natural death by the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973, the convict is not entitled to section 35A of the Code of Criminal Procedure. 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.

 

Justifications:

1) Justice Hasan Foez Siddique, J observed, definition of “life” provided in section 45 of the Penal Code that, ‘the life of a human being’ is not final and absolute definition in view of the next wordings, those are, ‘unless the contrary appears from the contest.’ The assertion “imprisonment for life” means imprisonment for whole of the remaining period of convict’s natural life is not final conclusion.

 

2) According to Chief Justice Syed Mahmud Hossain, CJ, The legislature keeping in mind about the original section substituted section 35A by enacting the Code of Criminal Procedure (Amendment) Act, 2003, where it has been stated that the benefit of section 35A will not be available in 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.

 

3) According to Justice Muhammad Imman Ali, J, benefits under section 401 are discretionary, while deductions under section 35A of the Code of Criminal Procedure are mandatory. The Court cannot grant benefits by way of remission, while deductions are a duty imposed on the Court. The power of remission, commutation, pardon etc. are President’s and Government’s constitutional powers cannot be questioned, and such privilege may be extended to the convicts undergoing imprisonment for life. The Supreme Court has limited power to declare statutes as ultra vires of the Constitution.

 

4) Justice Hasan Foez Siddique, J further observed, 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 surroundings of the crimes itself background of the accused; conduct of the accused; his future dangerousness; motive; manner and magnitude of crime.

 

Cases Cited:

Kartar Singh vs State of Haryana, AIR 1982 SC 1439; Bhagirath vs Delhi Administration, AIR 1985 SC 1050; Gopal Vinayak Godse vs The State of Maharashtra, (1961) 3 SCR 440; Ranjit Singh vs State of Panjab, (2010) 12 SCC 506; Rokia Begum vs State, 13 ADC (2016) 311Sankar Ram & Co. Vs Kasi Nicker, (2003) 11 SCC 699; Shafiqur Rahman vs Idris Ali, 37 DLR (AD) 71.

Written by---
Shoena Akter
Department of Land Management and Law
Jagannath University, Dhaka